Cappel v. Almatis Burnside, LLC

Filing 49

ORDER AND REASONS granting 17 Motion for Summary Judgment. IT IS ORDERED that Defendant's motion is GRANTED and Plaintiff Jack Cappel's FMLA claims are DISMISSED WITH PREJUDICE, as set forth in document. Signed by Chief Judge Kurt D. Engelhardt on 4/25/2018. (sa) (Main Document 49 replaced on 4/25/2018) (sa).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACK E. CAPPEL

CIVIL ACTION

VERSUS

NO. 17-4822

ALMATIS BURNSIDE, L.L.C.

SECTION “N” (3)

ORDER AND REASONS
Presently before the Court is the motion for summary judgment filed by Defendant
Almatis Burnside, L.L.C. (Rec. Doc. 17), which was filed relative to the claims asserted by Plaintiff
Jack E. Cappel, pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2611, et seq.
Specifically, Plaintiff contends that Defendant's termination of his employment unlawfully interfered
with his right to take FMLA leave to care for his sick mother and was retaliation for Plaintiff's own
protected activity, i.e. Plaintiff's approved FMLA leave from November 14, 2016 until January 1,
2017. In considering Defendant's motion, the Court has carefully considered the parties' competing
submissions, the remainder of the record in this matter, and applicable law. For essentially the
reasons stated by Defendant in its memoranda (Rec. Docs. 17-3 and 33), IT IS ORDERED that
Defendant's motion is GRANTED and Plaintiff Jack Cappel's FMLA claims are DISMISSED
WITH PREJUDICE.
In reaching this conclusion, the Court is cognizant that Defendant's covert
surveillance of Plaintiff lasted only three days whereas Plaintiff's leave was approved for several
weeks. Plaintiff, however, has not asserted, much less offered supporting evidence, that the threeday surveillance period – during which Plaintiff went to his mother's nursing home only once and
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for approximately only 40 minutes1 – did not provide an accurate representation of his usual daily
activities whilst he was on FMLA leave. For instance, Plaintiff has not shown that he was ill on
those three days, or simply enjoying a much needed respite while someone else was available to
relieve Plaintiff in caring for his mother. Similarly, Plaintiff has not established that he simply
required a few additional days to complete essential personal or household tasks before resuming
his mother's daily care.
To the contrary, Plaintiff readily admits that he saw his mother only 4-5 times for less
than an hour each visit while he was on leave and that he was "sure he could have" worked and still
given the support he did to his mother.2 Indeed, Plaintiff candidly testified that he spent more time
doing other things while on FMLA leave than supporting his mother and that he saw her about the
same amount of time while he was on FMLA leave than when he was not.3 Specifically, he "would
go and see her when he could" and that he "didn't do nothing out of the ordinary" and "never
changed [his] routine."4 In short, given the evidence at hand, the Court can only conclude that
Plaintiff undeniably – and admittedly – failed to utilize his leave in the manner contemplated by the
FMLA, approved by his employer, and certified by his mother's doctor, i.e. to provided "[increase]
family support at end of life."5 See e.g., Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d
368 372 (5th Cir. 2008) (citing 9 U.S.C. § 2601(b)(2)) (FMLA permits eligible employees to take

1

See Rec. Doc. 17-5; Rec. Doc. 29-18

2

See Rec. Doc. 17-4, p. 20 of 69. Plaintiff's mother suffers from lung disease and
receives 24-hour care in a nursing home.
3

Id. at pp. 63 - 64 of 69.

4

Id. at p. 64 of 69.

5

See Rec. Doc. 17-4, pp. 65 - 67 of 69; Rec. Doc. 17-5; Rec. Doc. 29-17
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reasonable leave to care for a child, spouse, or parent who has a serious health condition)(emphasis
added); see also Scruggs v. Carrier Corp, 688 F.3d 821 (5th Cir. 2012) (citing 29 U.S.C. §
2614(1)(1) (employee is entitled to reinstatement under the FMLA "'only if he takes leave under [the
FMLA] for the intended purpose of the leave'")
Furthermore, it is likewise readily apparent, despite Plaintiff's strenuous assertions
to the contrary, that no triable issue remains relative to whether Plaintiff was properly notified of
the conditions and limitations of his FMLA leave. Without question, Plaintiff undoubtedly knew that
he had been granted leave from work, in accordance with the provisions of the FMLA, to enable him
to provide additional care for his ailing mother that he could not accomplish while being at work.
To argue otherwise is disingenuous. That is the sole identified reason for leave set forth on the
written application that Plaintiff submitted to his employer. Moreover, and, in any event, Plaintiff
had already requested, and been denied, FMLA leave time to work on his damaged home.6
Lastly, the Court similarly finds no evidentiary support for Plaintiff's assertion that
he suffered an adverse employment action because he attempted to take FMLA leave. Plaintiff was
granted the several weeks of FMLA leave he had requested. Additionally, an employer is permitted
to investigate an employee's leave conduct when given reason to suspect that the employee may be
misusing approved leave. Here, Lynn Gautreau, Defendant's former Human Resources Manager
apparently received information suggesting Plaintiff was misusing his FMLA leave.7 Finally,
Plaintiff's contention that he was terminated because Gautreau had an "axe to grind with him" is
attributed to the results of a prior arbitration hearing, not his instant request for FMLA leave.

6

See Rec. Doc. 17-4 at pp. 20 - 21 of 69; Rec. Doc. 17-6.

7

See Rec. Doc. 17-6; Rec. Doc. 29-19.
3

Accordingly, because the Court finds that Plaintiff has not put forth sufficient
evidence to bear his burden under Rule 56 of the Federal Rules of Civil Procedure, Defendant's
motion for summary judgment seeking dismissal of Plaintiff's claim has merit and thus is granted.
New Orleans, Louisiana, this 25th day of April 2018.

____________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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