Pamela Ingram v. White Settlement Independent School District

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-306-CV
PAMELA INGRAM APPELLANT
V.
WHITE SETTLEMENT APPELLEE
INDEPENDENT SCHOOL DISTRICT
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two issues, Appellant Pamela Ingram (“Ingram”) argues that the trial
court erred (1) by granting a directed verdict in favor of Appellee W hite
Settlement Independent School District (“WSISD”) and (2) by granting WSISD’s
pretrial plea to the jurisdiction. We affirm.
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… See T EX. R. A PP. P. 47.4.
II. Factual and Procedural History
Ingram was employed for sixteen years at WSISD’s central office until
June 21, 2004. There is a dispute as to why she was let go. WSISD told
Ingram she was terminated due to central office restructuring. However,
Ingram was the only employee let go and, therefore, believed it was due to her
medical condition.
WSISD contended that Ingram chose to ignore the real reason she was let
go. In the summer of 2004, Ingram’s supervisor, Mr. Welch, became the
executive director of a multimillion dollar ($172 million) bond program. Neither
Mr. Welch, nor the superintendent of WSISD, Susan Simpson, thought Ingram
had the necessary skills to assist Mr. Welch in this new program; therefore, she
was let go. Ingram agreed that the duties of Mr. Welch’s new secretary after
the restructuring were “different” than her duties and that WSISD’s reason for
termination was a valid one, if that was what happened.
However, Ingram alleged that she was terminated due to a prolonged
medical condition. Ingram claimed that she was attacked verbally for taking
time off and that her supervisor became increasingly “hostile” toward her.
Furthermore, Ingram stated that on the day she was terminated her supervisor
told her “now she could go home and take care of her health.” She also
asserted that in her post-termination interview, she was told that WSISD
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terminated her for “missing too much time” and for performing personal business
on company time.
Ingram’s pertinent medical problems began in December 2002, when she
began having medical problems that were eventually diagnosed as arthritis.
Over the next year and a half, she saw four doctors, underwent numerous tests,
had two MRI’s, received a series of epidural injections in her back, took different
medications (including steroid injections), and was prescribed ten weeks of
physical therapy. During 2003, she had to take time off for her numerous
doctor visits, and she would occasionally take an extended lunch break, arrive
late, or leave early due to the pain and medication regimen.
Ingram described her condition as a severe burning pain that radiated in
her shoulder and arm causing numbness in her hip. Both she and her husband
testified that the pain prevented her from performing normal household duties.
Furthermore, Ingram contends that she was absent during the workday “for
minutes to an hour” because she was incapacitated by her condition or for
treatment. However, WSISD asserted that Ingram told her doctor in May 2003
that she could do a number of things with little or no difficulty, including
performing her job, jogging two miles, and participating in sports. Although she
was involved in a ten-week therapy course in September 2003, some nine
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months before she was let go, her condition had improved by about 25% at the
time of her termination.
Ingram stated that she only used four and a half days of sick leave in
2003 and that she used her accumulated comp time or made up the work for
any other time missed. WSISD stated that she was not absent from work much,
and in 2004, her absences decreased; in fact she used only three and a half
days of vacation time, comp time, or both.
After being terminated, Ingram filed a grievance under WSISD’s grievance
policy alleging unlawful termination due to age discrimination, violation of her
right to sick leave granted by State law, and violation of the Family Medical
Leave Act (“FMLA”). She appealed to the Board of Trustees where her
grievances were eventually denied. In 2006, Ingram brought suit under four
separate claims; only two of which are on appeal. Ingram alleged in one of her
causes of action that WSISD had failed to notify her of her right to take
intermittent leave under the FMLA (the interference claim), in response to which
WSISD filed a plea to the jurisdiction. The trial court granted the plea to the
jurisdiction and dismissed Ingram’s interference claim, holding in its March 5,
2007 order that Ingram had “failed to exhaust her administrative remedies
against” WSISD and that the trial court therefore lacked subject matter
jurisdiction. The remaining causes of action were tried, but the trial court
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granted a directed verdict as to her remaining claims, including her retaliation
allegation under the FMLA (the protection claim). Specifically, WSISD moved
for a directed verdict on this claim on two grounds, the first of which being that
there was “no evidence that the plaintiff had a serious health condition that
makes the employee unable to perform the functions of her position.” The trial
court granted the directed verdict, apparently on that ground, stating as follows:
There is no FMLA violation under the facts of the case. At no time
has there been any evidence that she had an inability to work due
to a serious health condition. . . . It’s got to be due to that serious
health condition. Just because they take off, I don’t disagree that
she took. I don’t disagree with that at all. But at no time, in fact,
the evidence is opposite even from her own mouth that she was
able at all times to work. And in all the other cases that are cited,
people couldn’t work because of the disabilities. They couldn’t
work because of whatever condition. In this situation, she stated,
I, at all times, could work. She took off for physical therapy but she
said I can work. And because of that, there was no FMLA. The
FMLA doesn’t apply. There is no leave. Therefore, I grant the
directed verdict. And with that, this case is now complete.
This appeal followed only as to the FMLA interference and retaliation claims.
III. First Issue—Retaliation Claim
In her first issue, Ingram complains that the trial court erred in granting a
directed verdict on her FMLA protection claim based on the idea that she had no
period of incapacity. This claim involved her assertion of retaliation by WSISD
against her for invoking her FMLA rights.
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A. Standard of Review
A directed verdict is proper only under limited circumstances: (1) when the
evidence conclusively establishes the right of the movant to judgment or negates
the right of the opponent or (2) when the evidence is insufficient to raise a
material fact issue. See Prudential Ins. Co. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000); Ray v. McFarland, 97 S.W.3d 728, 729-30 (Tex.
App.—Fort Worth 2003, no pet.). In reviewing a directed verdict, we must
credit favorable evidence if reasonable jurors could and disregard contrary
evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005).
If the question to be decided is whether the losing party at trial raised a
material fact issue, we consider all the evidence in the light most favorable to
the party against whom the verdict was instructed and disregard all contrary
evidence and inferences; we give the losing party the benefit of all reasonable
inferences created by the evidence. Coastal Transp. Co. v. Crown Cent.
Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004). If we determine that any
conflicting evidence of probative value raises a material fact issue on any theory
of recovery, then the directed verdict is improper because such an issue is for
the jury to resolve. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649
(Tex. 1994).
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The motion must specifically state what grounds merit the directed
verdict. T EX. R. C IV. P. 268. However, the failure to specify a ground in the
motion is not fatal if there are no fact issues raised by the evidence and the
prevailing party is entitled to judgment as a matter of law. Deutsch v. Hoover,
Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex. App.—Houston [14th Dist.]
2002, no pet.) (citing Tex. Employers Ins. Ass’n v. Page, 553 S.W.2d 98, 102
(Tex. 1977)). We can consider any reason the directed verdict should have
been granted, even if not stated in the party’s motion. Ibarra v. Nat’l Constr.
Rentals, Inc., 199 S.W.3d 32, 37 (Tex. App.—San Antonio 2006, no pet.). We
must affirm a directed verdict even though the trial court’s rationale was
erroneous if the directed verdict can be supported on another basis. Cano v. N.
Tex. Nephrology Assocs., P.A., 99 S.W.3d 330, 339 (Tex. App.—Fort Worth
2003, no pet.).
B. Retaliation Claims
In cases such as this, the initial burden is on Ingram to provide evidence
of each element of her retaliation claim. The elements of an FMLA retaliation
claim are that the employee availed herself of an FMLA protected right, that she
was adversely affected by an employment decision, and that there was a causal
connection between the employee’s protected activity and the employer’s
adverse employment action. Boriski v. City of College Station, 65 F. Supp. 2d
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493, 502 (S.D. Tex. 1999); see also Chaffin v. John H. Carter Co., 179 F.3d
316, 319 (5th Cir. 1999); Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 161
(1st Cir. 1998). Next, WSISD must demonstrate a legitimate and non-
discriminatory reason for its employment action against Ingram. See Chaffin,
179 F.3d at 320. Assuming the second step has been met, Ingram must then
show that the reason offered by WSISD was a mere pretext for the prohibited
retaliation adverse employment action. See id.; see also St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 506-08, 113 S. Ct. 2742, 2747-48 (1993) (stating that
the plaintiff retains the ultimate burden of persuasion on the issue of intentional
discrimination).
C. WSISD’s Position
WSISD asserts that the directed verdict on Ingram’s retaliation claim was
proper for three reasons. First, Ingram had no protected right under the FMLA
because she had no period of incapacity. Second, Ingram presented no evidence
that exercising her rights under the FMLA caused the adverse employment
action by WSISD. Third, Ingram presented no evidence that the reason offered
by WSISD for Ingram’s termination was a pretext for prohibited retaliation.
Initally, with respect to W SISD’s first argument, we must look at 29
C.F.R. § 825.114(a), entitled, “What is a ‘serious health condition’ entitling an
employee to FMLA leave?” It provides in part as follows:
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(a) . . . [A] “serious health condition” entitling an employee to FMLA
leave means an illness, injury, impairment, or physical or mental
condition that involves:
....
(2) . . . . A serious health condition involving continuing
treatment by a health care provider includes any one or more
of the following:
....
(iii) Any period of incapacity or treatment for such incapacity
due to a chronic serious health condition. A chronic serious
health condition is one which:
(A)Requires periodic visits for treatment by a health
care provider . . . .
(B) Continues over an extended period of time . . . and
(C) May cause episodic rather than a continuing period
of incapacity[.]
....
(v) Any period of absence to receive multiple treatments
. . . by a health care provider . . . for a condition that
would likely result in a period of incapacity of more than
three consecutive calendar days in the absence of
medical intervention or treatment, such as cancer
(chemotherapy, radiation, etc.), severe arthritis
(physical therapy), kidney disease (dialysis).
29 C.F.R. § 825.114(a) (2005).
Thus, for purposes of this case, Ingram was entitled to FMLA leave if she
had an illness that involved continuing treatment by a healthcare provider, (a)
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which encompassed any period of incapacity due to a chronic serious health
condition, that is, one that required periodic treatment by a healthcare provider
which continued over an extended period of time and which may have caused
episodic incapacity in lieu of continuing incapacity, or (b) which encompassed
a period of absence to receive multiple treatments for a condition that, without
such treatment, would likely have resulted in incapacity of more than three
consecutive calendar days, such as physical therapy for severe arthritis.
“Incapacity” is defined in the same section as “inability to work, attend
school or perform other regular daily activities due to the serious health
condition, treatment therefore, or recovery therefrom.” Id. § 825.114(a)(2)(i).
It appears logical that for a work-related FMLA leave, the claimant must
show that her condition affected her abilities at work as set forth in 29 C.F.R.
§ 825.114. The evidence clearly showed that Ingram was able to work
throughout her illness, particularly in 2004 when she was terminated. She
testified as follows:
Q. But you’re, in fact, are able to do your job, you were able to do
your job, weren’t you?
A. I did it to the best of my ability, yes.
....
Q. So your testimony is that you were able to do the functions of
your job?
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A. Yes.
....
Q. . . . And our record shows that you missed about three and a
half days, does that sound right?
A. Yes, sir.
Ingram testified that she told her doctor the following:
Q. You could run or jog two miles with some difficulty?
A. Well, I didn’t do that often, yes.
....
Q. You could climb up a flight of stairs without any difficulty?
A. Um-hum.
Q. Is that correct?
A. Well, I didn’t have any stairs, but I guess I could have.
....
Q. Participate in sports and games as you would like, correct?
A. Right.
....
Q. And you could do your work?
A. Yes.
Q. You weren’t disabled from doing anything at work?
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A. No. I could do my work.
She also testified as follows:
Q. And you testified earlier that this 2003, September 2003, which
is about nine months before you were terminated, therapy was a
ten-week course?
A. Yes, ma’am.
Q. So you were gone -- you took off early twice a week for ten
weeks?
A. Yes, ma’am.
....
Q. And then likewise, you just testified about having some
epidurals in May of 2004, March, April and May?
A. Yes, ma’am.
Q. And you said those were scheduled for what time of day?
A. I believe it was 7:15 in the morning.
Q. You came in late those days?
A. Just about 15, 30 minutes.
....
Q. So your testimony is that you were late because you had a
doctor’s appointment?
A. Yes, ma’am.
Q. And this lunch hour, you took a lot of long lunches, I
understand?
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A. No, not really.
Q. Sometimes you’d stay two hours, you left at 11:00 or you came
back at 2:00, I think?
A. If I did that, it was I -- going home, took my medication. The
medication made me feel funny right at first or to make it work. I’d
go home, take it, lay down for a little bit, let it get to work, and
then come back to work. But I always made up my time.
....
Q. So just so the jury has some idea, how often would you do it,
once a month?
A. Maybe.
Q. So what about twice a month?
A. Maybe, possibly.
Q. What are we talking about now?
A. Maybe going home and, you know, taking my medication --
having to take my medication during the most intense period of my
illness. Yeah, it may have been twice a month.
Q. And what other period of time are we talking about?
A. On lunch.
Q. No, which period of time --
A. Oh, I would say probably January to -- well, maybe December
of 2003, or I’m sorry, of 2004.
Under the appropriate standard of review, we hold that Ingram failed to
show that she was incapacitated as that term is defined in the statute.
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With regard to 29 C.F.R. § 825.114(a)(2)(v), regarding absence involving
multiple treatments, it was necessary for Ingram to show that her condition,
absent medical intervention or treatment, “would likely result in a period of
incapacity of more than three consecutive calendar days.” See 29 C.F.R. §
825.114(a)(2)(v). Ingram makes the blanket statement that the “medical
records and testimony of Ingram and her husband are more than sufficient
evidence to support a jury inference that Ingram’s condition would have resulted
in three days or more days of incapacity in [the] absence of medical
intervention.” First, Ingram does not point to any item in her fifty-plus pages of
medical reports to support her assertion. An appellate court is not required to
search the appellate record, with no guidance from the briefing party, to
determine if the record supports the party’s argument. Hall v. Stephenson, 919
S.W.2d 454, 466-67 (Tex. App.—Fort Worth 1996, writ denied). Also, “we
know of no authority obligating us to become advocates for a particular litigant
through performing their research and developing their argument for them.”
Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). Thus, an inadequately briefed point may be waived on
appeal. Hall, 919 S.W.2d at 467; see also Fredonia State Bank v. Gen. Am. Life
Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (discussing “long-standing rule”
that point may be waived due to inadequate briefing). Second, there is no
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expert testimony with regard to any untreated condition resulting in a three day
absence. And third, Ingram does not point us to evidence in the record where
any lay testimony indicates a three day absence would result.
She also directs us to the language in 29 C.F.R. § 825.114(a)(2)(v)
regarding “severe arthritis (physical therapy).” A fair reading of that statutory
section in its entirety indicates that this portion of part (v) is indicative of
examples of “treatment,” such as chemotherapy for cancer, physical therapy for
severe arthritis, and kidney dialysis for disease. Any periods of absence alluded
to by Ingram did not involve physical therapy for severe arthritis. As such, her
argument is a non-starter. Therefore we hold that there is insufficient evidence
that she was entitled to an FMLA leave under subsection (v).
Consequently, we cannot say that the trial court erred in granting the
directed verdict on her retaliation (protection) claim since the evidence
demonstrates that Ingram was not incapacitated due to a chronic serious health
condition, nor has she shown that subsection (v) was applicable to her. That
being the case, WSISD could not retaliate against her regarding an FMLA leave
to which she was not entitled. Ingram’s first issue is overruled.
IV. Second Issue—Interference Claim
As set out by Ingram, to prevail on an FMLA interference claim, she must
establish the following: (1) she was eligible for the FMLA’s protections, (2) her
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employer was covered by the FMLA, (3) she was entitled to leave under the
FMLA, (4) she provided sufficient notice of her intent to take leave, and (5) her
employer denied her FMLA benefits to which she was entitled. Hoge v. Honda
of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004).
It is axiomatic that subject matter jurisdiction is essential for a court to
decide a case before it. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-
54 (Tex. 2000). If a party alleges that subject matter jurisdiction is absent, a
plea to the jurisdiction may be the appropriate vehicle to raise that issue. Id. at
554. Exhaustion of administrative remedies is a prerequisite for a court to have
subject matter jurisdiction. Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51
S.W.3d 293, 294 (Tex. 2001).
In the case before us, WSISD asserts that Ingram brought a claim for
retaliation against WSISD in her grievance process but did not assert any
interference claim, that is, that she was not informed of her right to FMLA leave.
Therefore, because the interference claim was not brought during the
administrative claim process, the trial court was without jurisdiction to entertain
the interference claim.
Ingram responds with a two-fold argument. First, she argues that it is not
necessary to have asserted the interference claim because that claim is “like or
related to” her retaliation claim. Second, she is not required to have exhausted
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her administrative remedies with respect to the interference claim because it is
a claim based on federal statutory rights. See Tex. Educ. Agency v. Cypress
Fairbanks I.S.D., 830 S.W.2d 88, 90-91 (Tex. 1992).
We have previously determined that Ingram was not entitled to FMLA
leave because she was not incapacitated due to a chronic serious health
condition and that subsection (v) of 29 C.F.R. § 825.114(a)(2) did not apply to
her. That being the case, there can be no interference by WSISD with her FMLA
rights, that is, WSISD cannot have failed to inform her of her right to FMLA
leave because she was not entitled to such. Hence, her argument regarding the
granting of the plea to the jurisdiction is futile and mooted by our prior holding.
Ingram’s second issue is overruled.
V. Conclusion
Having overruled Ingram’s two issues, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: May 1, 2008
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