Kirk v. Reed Tool Co. , 247 F. App'x 485 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 13, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 07-20109
Summary Calendar
STEPHEN WAYNE KIRK,
Plaintiff - Appellant,
versus
REED TOOL COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(4:05-CV-1128)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Stephen Wayne Kirk contests both a jury verdict in favor of
Reed Tool and the denial of a new-trial motion. He claims the jury
was improperly instructed with respect to his Family Medical Leave
Act (FMLA) claim.
Kirk, a Reed Tool employee, suffers from chronic Hepatitis C.
From 2001 to 2002, while employed at Reed Tool, he was granted
several medical leaves-of-absence due to his condition. According
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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to Kirk, in November 2002, he began to receive a more aggressive
treatment regime which caused him miss a number of work days. In
April 2003, Reed Tool terminated Kirk’s employment for numerous
unexcused absences from the period of 1 to 15 April 2003. Kirk
contends such absences were due to his illness.
In April 2005, Kirk filed this action, claiming interference
with his rights under FMLA. Kirk contends Reed Tool unlawfully
terminated him by: refusing to provide to him necessary sick-leave
paperwork; and not allowing him to obtain the requisite medical
certification within the 15-day minimum time period prescribed by
FMLA. See 29 U.S.C. § 2613(a). This action was tried in November
2006, and the jury found in favor of Reed Tool. Kirk’s December
2006 new-trial motion was denied.
Kirk’s sole contention is that a jury instruction stated an
incorrect statement of law under the FMLA and accordingly, imposed
on him a higher burden of proof. Jury instruction challenges are
generally reviewed for an abuse of discretion. Brown v. Parker
Drilling Offshore Corp., 410 F.3d 166, 179 (5th Cir. 2005).
Reversible error occurs “only if the charge as a whole creates a
substantial doubt as to whether the jury has been properly guided
in its deliberations”. C.P. Interests, Inc. v. Cal. Pools, Inc.,
238 F.3d 690, 700 (5th Cir. 2001). Here, however, as discussed
infra, while Kirk may have objected to the original jury charge, he
did not object to the supplemental charge. Therefore, our review
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is only for plain error. FED. R. CIV. P. 51(d); e.g., Resendez v.
Wal-Mart Stores, Inc., 180 Fed. App’x 543, 543 (5th Cir. 2006);
United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994). Under
this standard, this court has the discretion to reverse the jury
verdict only if a clear or obvious error affected Kirk’s
substantial rights. Taita Chem. Co., Ltd. v. Westlake Styrene,
LP., 351 F.3d 663, 668 (5th Cir. 2003) (internal citation and
quotation marks omitted).
Under the FMLA, an eligible employee is entitled to a total of
12 weeks of leave a year for, inter alia, a “serious health
condition that makes the employee unable to perform the functions
of the position of such employee”. 29 U.S.C. § 2612(a)(1)(D). A
serious health condition is any injury or illness that involves an
inability to work for more than three consecutive days. See 29
C.F.R. 825.114(a)(2)(i). When, as here, the leave is
unforeseeable, the employee bears the burden of providing notice to
the employer of the need for medical leave, and must do so as soon
as practicable, or “no more than one or two working days of
learning of the need for leave, except in extraordinary
circumstances where such notice is not feasible”. 29 C.F.R. §
825.303(a). To prevail on a FMLA claim, Kirk must prove: (1) he
was an eligible employee; (2) Reed Tool interfered with his rights
under the FMLA; and (3) he was prejudiced by the interference. 29
U.S.C. §§ 2615, 2617(a)(1).
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Jury Charge Question No. 2, which Kirk objected to at the
charge conference, asked the jury to determine whether “Mr. Kirk’s
serious health condition [was] the cause of his missing work from
April 1 ... through ... 15, 2003.” Kirk objected that this
question gave him a higher burden of proof; it required the jury to
find he was absent due to a serious health condition for 15 full
days, rather than the minimum three consecutive days under the
FMLA.
During deliberations, the jury sent a note asking the court
whether it must find Kirk was out “every single day” due to his
condition. The court, after conferring with both parties in
formulating a response, offered the following supplemental
instruction:
You may answer Question number 2 ‘yes’ if you
find that Mr. Kirk’s serious health condition
caused him to miss more than three days of
work from April 1, 2003 through April 15,
2003; however, if you find that his serious
health condition was the cause of his missing
some but not all of the days of work between
April 1, 2003, and April 15, 2003, then also
state in your answer to Question number 2 the
dates, i.e., April blank, blank, and blank,
that his serious health condition caused him
to miss from work.
The supplemental instruction was not objected to by Kirk; in fact,
his counsel stated he “like[d] it”. Accordingly, as discussed
supra, the supplemental instruction is reviewed for only plain
error.
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Even assuming the original jury instruction was in error, the
clarifying instruction was proper statement of the law as provided
in 29 C.F.R. 825.114(a)(2)(i) and cured any prejudice; it gave the
jury an opportunity to specify any absences related to Kirk’s
health condition, and any that were not. Had the jury found Kirk’s
medical condition caused his absence from work for at least three
consecutive days, Kirk would have established his eligibility for
leave under the FMLA. Here, however, the jury found that none of
Kirk’s absences were due to his health problems. Kirk has not
shown reversible plain error. See Taita Chem. Co., 351 F.3d at
668.
AFFIRMED
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