Byrd v. City Of Houston
Filing
24
MEMORANDUM AND OPINION entered DENYING 14 MOTION for Partial Summary Judgment as to Liability and Liquidated Damages.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IYHANA BYRD,
Plaintiff,
v.
CITY OF HOUSTON,
Defendant.
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January 29, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-778
MEMORANDUM & OPINION
In this wrongful-termination case, Iyhana Byrd sued her former employer, the City of
Houston, for firing her after she took leave under the Family and Medical Leave Act (FMLA), 29
U.S.C. § 2601 et seq. (Docket Entry No. 1). Byrd alleges that the City interfered with, and
retaliated against her for exercising, her FMLA rights. She alleges that by authorizing her request
to take FMLA leave and then finding after the fact that she was ineligible to do so; failing to process
and uphold her FMLA request; and terminating her for taking her FMLA leave, the City violated
the Act. (Id. at ¶ 12). Byrd has moved for partial summary judgment on liability and liquidated
damages, and the City has moved for summary judgment on all issues. (Docket Entry Nos. 14–16).
Based on the parties’ pleadings, briefs, the record, the applicable law, and the oral arguments
counsel presented at a hearing, the court denies both motions. The reasons are detailed below.
I.
Background
A.
Byrd’s Work and FMLA Leave
Byrd began working for the City as a Houston Emergency Center 9-1-1 telecommunicator
on May 8, 2017. (Docket Entry No. 13 at ¶ 1). Byrd confirmed receiving the Center’s Policies and
Procedures Overview Manual that day. (Id. at ¶ 24).
On February 1, 2018, Byrd was still a
probationary employee because she had worked for the City for less than a year. (Docket Entry No.
13 at ¶¶ 2, 23).
The Center’s Attendance and Punctuality Policy included rules on employee absences. The
Policy defines “scheduled time” or a “scheduled occurrence” as:
[a]n approved absence from the employee’s scheduled work shift where the request
for that absence was made more than 24 hours in advance of the absence date. This
includes scheduled: vacation, accrued holiday, accrued compensatory time, and in
some instances, sick leave (e.g., an employee knows well in advance that he/she will
have surgery and will use sick leave for time missed).
(Id. at ¶ 19). The Policy defines “unscheduled time” or an “unscheduled occurrence” as:
[a]ny absence from or during an employee’s scheduled work shift designated as an
“emergency” or sick event, or any absence where the request for that absence was
made less than 24 hours in advance of the absence date. This includes unscheduled
sick leave, emergency vacation, emergency compensatory time, and emergency
accrued holiday time.
(Id.). The Policy prohibits employees from “schedul[ing] themselves for time off if it exceeds the
number of hours available in their time bank,” with an exception “in the case of FMLA [leave] or
an approved leave of absence.” (Id.). The Policy explains that “[a]ny absence designated as leave
covered by the [FMLA] cannot be considered when applying this policy.” (Id.). Probationary
employees with over 40 hours of unscheduled time may be terminated, but they “will receive written
counseling from his/her supervisor” when they reach that 40-hour limit. (Id. at ¶ 11; Docket Entry
no. 13-1 at 32). The Center’s Overview Manual included the City’s attendance and FMLA policies.
The Center’s Employee Performance Reports purport to show Byrd’s unscheduled time from
August to November 2017. (Docket Entry No. 13 at ¶¶ 13–16). The August 2017 Report
documents 1 minute of unscheduled time for the month and 28 minutes for the year. (Id. at ¶ 13).
In September, Byrd had 5 minutes of unscheduled time for the month and 33 minutes for the year.
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(Id. at ¶ 14). In October, she had 7 hours and 27 minutes of unscheduled time for the month and 8
hours for the year. (Id. at ¶ 15). In November, she had 8 hours of unscheduled time for the month
and 16 hours for the year. (Id. at ¶ 16). Byrd’s timesheets show that she took approximately 40
hours of sick leave, 24 hours of vacation sick time, and 8 hours of unscheduled vacation time in
November 2017, but the timesheets do not specify whether the sick time was classified as scheduled
or unscheduled. (Docket Entry No. 13-1 at 39–40).
After Byrd’s daughter was hospitalized, Byrd asked the City for FMLA leave starting on
February 1, 2018. Byrd sent an email asking Shirley Blackshear, the Center’s FMLA Coordinator,
to send her an FMLA packet that day. (Docket Entry No. 13 at ¶¶ 4, 26). On February 6,
Blackshear signed Byrd’s FMLA packet. (Id. at ¶¶ 5). On February 9, Blackshear signed a Notice
of Eligibility and Rights & Responsibilities for Byrd, checking the box to state that Byrd was
eligible for FMLA leave. (Id. at ¶ 7).
Byrd took FMLA leave from February 1 to February 11, 2018. (Docket Entry No. 1 at ¶ 7).
She returned to work on February 12. (Id.). The next day, February 13, before Byrd had returned
the doctor-completed Certification of Healthcare Provider form that was not due until February 21,
Blackshear signed an FMLA Disapproval Notification stating that because Byrd had not worked
1,250 hours or one year with the City, she was in fact ineligible for the FMLA leave she had been
approved to take and had taken. (Docket Entry No. 13 at ¶ 9). Blackshear emailed Byrd the
disapproval notice, which stated that the “KRONOS system was in error.” (Id. at ¶¶ 9, 28). The
KRONOS system is the software system the City used to determine FMLA eligibility. (See id.).
Byrd responded to that email, explaining that because the certification from the doctor was not due
until February 21, “[n]o one has received my doctor’s information to approve or deny my FMLA
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request.” (Id. at ¶ 29). Byrd had the Certification of Healthcare Provider form signed and
completed by her doctor on February 20. (Id. at ¶ 8). The medical basis for FMLA leave is not
disputed.
Byrd was terminated on February 22. (Id. at ¶ 10). The Center’s Director, David Cutler,
approved a termination letter stating that Byrd had 88 hours of unscheduled absences. (Id.). Cutler
manages the Center and its employees, with “full authority to terminate the employment of a
probationary employee” he believes is “unable or unwilling to render satisfactory service, or for
other sufficient cause.” (Docket Entry No. 16-2 at 1). Byrd received no probationary counseling
for excessive unscheduled absences before her termination. (Docket Entry No. 13 at ¶ 12).
B.
Byrd’s Claims and the Cross-Motions for Summary Judgment
Byrd argues that her absences from February 1 to February 11, 2018 were protected leave
under the FMLA. (Docket Entry No. 1 at ¶¶ 7, 12). While she concedes that she was ineligible for
FMLA leave because she had not worked for the City for more than one year, she argues that the
City’s representation to her of her eligibility, and her reliance on it, estops the City from denying
her eligibility after the fact. (Id. at ¶ 8). She asserts FMLA interference and retaliation claims,
alleging that the City “failed to properly process her under the FMLA” and then terminated her for
taking FMLA-protected leave. (Id. at ¶ 12). Byrd moves for partial summary judgment as to
liability and liquidated damages. (Docket Entry No. 14).
The City cross-moves for summary judgment, arguing that there is no genuine dispute of
material fact establishing that Byrd was not an eligible employee under the FMLA and that Byrd has
not rebutted the City’s explanation for her termination—for excessive unscheduled absences—as
unrelated to FMLA leave. (Docket Entry No. 16 at 14). The City argues that Byrd was in fact
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ineligible for FMLA leave because she did not meet the 1-year and 1,250-hour requirements for
eligibility for FMLA leave. (Id.). The City admits that it gave Byrd incorrect information that she
was eligible, and that it did not retract or correct the information until after Byrd had taken her
FMLA leave and returned. (Id.; see Docket Entry No. 13 at ¶¶ 9–10). But the City argues that
Byrd’s reliance on Blackshear’s representation of eligibility before taking the FMLA leave was
unreasonable, because the City’s written Policy, contained in the Center’s Overview Manual that
Byrd received when she began work, stated the FMLA requirements. (Docket Entry No. 16 at 7).
The City also responds to Byrd’s motion for partial summary judgment, arguing that because there
is a “factual dispute regarding the city’s subjective good faith related to her liquidated damages
claim,” summary judgment on that issue, even assuming the City is liable, is improper. (Id. at 19).
II.
The Relevant Legal Standards
A.
Summary Judgment
“Summary judgment is required when ‘the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’” Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). “A genuine dispute of material
fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Nola Spice Designs, LLC v. Haydel Enters., Inc.,783 F.3d 527, 536 (5th Cir. 2015) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the absence of a genuine issue of material
fact.’” Id. (quoting E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
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“Where the non-movant bears the burden of proof at trial, the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact warranting trial.” Id.
(quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the moving party must
demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements
of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). “A
fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under
governing law.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotation
omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment]
must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S.
Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc)).
“Once the moving party [meets its initial burden], the non-moving party must ‘go beyond
the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.’” Nola
Spice, 783 F.3d at 536 (quoting LHC Grp., Inc., 773 F.3d at 694). The nonmovant must identify
specific evidence in the record and articulate how that evidence supports its claim. Baranowski v.
Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical
doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). The court
draws all reasonable inferences in the light most favorable to the nonmoving party. Connors v.
Graves, 538 F.3d 373, 376 (5th Cir. 2008).
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B.
The Family and Medical Leave Act
The FMLA allows qualified employees working for covered employers to take up to 12
weeks of unpaid leave during a 12-month period, for an employee’s serious health condition or to
take care of family members. See 29 U.S.C. § 2612(a); Willis v. Coca Cola Enter., Inc., 445 F.3d
413, 417 (5th Cir. 2006). The FMLA prohibits employer interference with leave and retaliation for
taking leave. Shirley v. Precision Castparts Corp., 726 F.3d 675, 681 (5th Cir. 2013). An “eligible
employee” is “an employee who has been employed —(i) for at least 12 months by the employer . . .
and (iii) for at least 1,250 hours of service with such employer during the previous 12-month
period.” 29 U.S.C. § 2611(2)(A).
III.
Analysis
A.
The Summary Judgment Evidence
The parties provide an appendix of undisputed facts.1 (Docket Entry No. 13-1). Byrd2 and
the City3 each offer additional summary judgment evidence. (Docket Entry Nos. 14-1, 16-1–16-4).
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The appendix includes: (1) Byrd’s hiring form; (2) a termination letter approved by Cutler dated
February 22, 2018; (3) Byrd’s resignation form; (4) Byrd’s acknowledgment of receiving the City’s Electronic
Timekeeping Policy for Non-Exempt Employees; (5) Byrd’s employee performance reviews for August,
September, October, and November 2017; (6) a memo showing that Byrd received certain FMLA documents on
February 6, 2018; (7) a Notice of Eligibility and Rights and Responsibilities from Blackshear; (8) emails from
Byrd to Blackshear; (9) Blackshear’s denial of Byrd’s FMLA request on February 13, 2018; (10) Byrd’s
Certification of Health Care Provider; (11) Byrd’s form requesting FMLA leave dated February 9, 2018; (12) the
Center’s Attendance and Punctuality Policy; (13) Byrd’s timesheets from May 6, 2017 to March 9, 2018; and (14)
a form showing Byrd’s receipt of the Center’s Overview Manual. (Docket Entry No. 13-1).
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Byrd’s evidence includes: (1) Byrd’s declaration; (2) a declaration from Brittany Riley, a former City
employee; and (3) an affidavit from Blackshear. (Docket Entry Nos. 14-1).
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The City’s evidence includes: (1) an affidavit from David F. Cutler; (2) Houston Code of Ordinances
§ 14-125; (3) a memorandum from India Summers, the Center’s Night Shift Operations Manager; and (4) Houston
Code of Ordinances § 14-170. (Docket Entry Nos. 16-1–16-4).
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The City objects to Byrd’s proffered amended declaration of Brittany Riley. (Docket Entry
No. 16 at 13). The City argues that the declaration is not relevant and that “[n]one of the statements
contained in the Riley declaration supports or provides admissible and competent summary
judgment evidence to support any of Byrd’s claims.” (Docket Entry No. 16 at 13). The City does
not specify the parts of the declaration that are objectionable or why, beyond the conclusory
statement that the declaration “bears no relationship to any factual matters or genuine disputes
involved in the case at bar.” (Id.).
Byrd argues that Riley’s declaration is relevant, noting that the attached pay statements show
that Riley, another Center employee working at the same time as Byrd, began accruing sick leave
before she had worked for the City for six months. (Docket Entry No. 17 at 5). Byrd also argues
that the declaration is relevant because Riley “was wrongfully fired for taking retroactively
disapproved FMLA leave contemporaneously with Ms. Byrd.” (Id.).
Federal Rule of Evidence 401 defines “relevant evidence” as evidence having “any tendency
to make a fact more or less probable than it would be without the evidence” if “the fact is of
consequence in determining the action.” FED. R. EVID. 401. “Irrelevant evidence is not admissible.”
FED. R. EVID. 402.
The declaration describes Riley’s request for FMLA leave while working as a probationary
employee in the Houston Emergency Center and her termination after returning from that leave.
(Docket Entry No. 14-1 at 10). Like Byrd, Riley asked Blackshear for leave, had the request
approved, and took the approved leave in early 2018. (Id. at 10–11). Included in the declaration are
Riley’s eligibility notice and FMLA approval from Blackshear, the after-the-fact denial of her leave
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approval after she returned to work from her leave, her termination letter, her attorney’s letter to
Cutler, and her pay statements from June 2009 to February 2018. (Id. at 14–22, 16–18, 24–59).
To the extent that Byrd uses Riley’s declaration to show how a similarly situated employee
accrued vacation and sick leave hours, the declaration is relevant. The parties dispute whether Byrd
could accrue similar hours as scheduled time while she was a probationary employee. Byrd asserts
that the November 2017 absences the City alleges were the basis of her February 2018 termination
were for scheduled sick time that she was permitted to take under the Center’s policy. (Docket
Entry No. 16 at 16; Docket Entry No. 17 at 2–3). However, to the extent that Byrd attempts to use
the Riley declaration to show that Riley was terminated for taking FMLA leave, the declaration is
not clearly relevant. The declaration provides Riley’s explanation of the events surrounding her
termination, but that is relevant only to the extent it shows that another similarly situated employee
was terminated after a similar experience of approved leave disallowed after the fact. The
declaration does not, however, show whether the City terminated Byrd because of her FMLA leave
or because of excessive, earlier unscheduled absences. The declaration and attached pay stubs are
considered only to the extent they are relevant.
Byrd objects to the City’s proffered memorandum from India Summers, which lists the
“dates that were used as the basis for probationary termination.” (Docket Entry No. 17 at 3–4).
Byrd points out that the Summers memorandum is “unsworn” and states that the dates are correct
only “to the best of [Summers’s] knowledge.” (Id.). Byrd argues that the memorandum is hearsay
because “‘to the best of my knowledge’ is insufficient to establish personal knowledge” and the
memorandum was generated during this litigation. (Id. at 4). The City explains that the Summers
memorandum was generated during, but not for, the litigation, “was provided to Byrd during
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exchange of initial disclosures,” and is “no more than [the Center’s] memorialization of Byrd’s
unscheduled occurrences/tard[ies] during 2017.” (Docket Entry No. 19 at 2 n.1).
Under Federal Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” FED. R. EVID. 901(a); see also In re McLain, 516
F.3d 301, 308 (5th Cir. 2008) (quoting FED. R. EVID. 901(a)). “Rule 901 does not erect a
particularly high hurdle, and the proponent of the evidence is not required to rule out all possibilities
inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to
be.” United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001) (internal citation and quotation
marks omitted). “Rule 901 is satisfied ‘if sufficient proof has been introduced so that a reasonable
juror could find in favor of authenticity or identification.’” Id. (citation omitted).
The challenged statements in the Summers memorandum describe what Summers, the nightshift operations manager for the Center, understood as the basis for Byrd’s termination. (Docket
Entry No. 16-4). Summers states that she “administered” Byrd’s termination letter. (Id.). Cutler’s
affidavit explains that “Summers documented, in the course of the department’s business and for
[Center] records,” Byrd’s absences and tardies “between July 27, 2017 through November 28,
2017.” (Docket Entry No. 16-2 at 2). Cutler states that “[t]hese [absences] were the unscheduled
occurrences I reviewed and considered in my employment decision.” (Id.). But Summers did not
prepare the memorandum until August 31, 2018, well after Cutler’s February 22, 2018 termination
decision. (See Docket Entry No. 19 at 2; Docket Entry No. 16-2). The Cutler affidavit is sufficient
to authenticate the Summers memorandum, but not enough to make the memorandum admissible.
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“Under Federal Rule of Evidence 801(c), hearsay is a statement, other than one made by the
declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter
asserted.” United States v. St. Junius, 739 F.3d 193, 202 (5th Cir. 2013) (citing FED. R. EVID.
801(c)). Hearsay evidence is generally inadmissible, but the rule “does not apply when an out-ofcourt statement is offered for some purpose other than to prove the truth of the matter asserted.” Id.;
FED. R. EVID. 802. To the extent that the memorandum is offered to show the information that
Cutler based his termination decision on, the memorandum is not offered to prove the truth of its
contents and is not hearsay.
However, the City cannot use the Summers memorandum to prove that the hours Summers
reported as Byrd’s unscheduled absences were accurately recorded or classified. Cutler’s affidavit
suggests that the Summers memorandum falls under Federal Rule of Evidence 803(6), as a record
of regularly conducted activity. To fall under this rule, the record must be made “at or near the
time” of the act based on information from or by someone with knowledge, must be “kept in the
course of a regularly conducted activity of a business,” and “making the record [must be] a regular
practice of that activity.” FED. R. EVID. 803(6)(A)–(C). To be admissible, the custodian or a
qualified witness must testify that the record meets all these criteria, and that neither “the source of
information [n]or the method or circumstances of preparation indicate a lack of trustworthiness.”
FED. R. EVID. 803(6)(D)–(E). Cutler states that Summers recorded the dates and absences for the
Center’s records, while Byrd argues that “the document was generated during litigation,” showing
at least that it was not made at or near the time of the act. (Docket Entry Nos. 16-2, 17).
The Summers memorandum is dated August 18, 2018, six months after Byrd’s termination.
The parties have filed contemporaneous records of Byrd’s attendance, including the City’s
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timesheets and monthly performance reports for Byrd. (See Docket Entry No. 13-1). The Summers
memorandum, in contrast, was prepared months after Byrd had sued the City. Cutler’s statement
that Summers wrote the memorandum “in the course of the department’s business and for [the
Center’s] records,” as opposed to for litigation, is conclusory and does not show that the Rule 803(6)
exception applies. (Docket Entry No. 16-2 at 2). To the extent that the City attempts to use the
Summers memorandum as evidence of the number of hours Byrd actually took for unscheduled
absences or how they were properly classified, the memorandum is not admitted.
B.
Timeline of Byrd’s Employment
Essential to determining whether the City is estopped from denying Byrd’s eligibility for
FMLA leave and to analyzing Byrd’s claims under the FMLA is establishing which of Byrd’s
absences were unscheduled absences that the City could take into account in deciding to terminate
her. The following timeline provides the key dates on which Byrd and the City rest their arguments.
May 8, 2017
Byrd starts work at the Houston Emergency Center.
November 8, 2017
Byrd completes 6 months at the Houston Emergency Center.
(See Docket Entry No. 18 at 3). The Riley declaration shows
that Riley received 42.54 vacation hours after working for the
Center for 6 months, and Byrd argues she would and should
have received similar time. (See id.; Docket Entry No. 14-1
at 50).
November 11, 14–17, 2017 Byrd’s timesheets show that she was absent (8 hours) and
took compensable sick leave each of these days. (Docket
Entry No. 13-1 at 39). The Summers memorandum states that
Byrd missed 8 hours each day and treated the time as an
unscheduled absence. (Docket Entry No. 16-4).
November 18, 2017
Byrd’s timesheets show that she was absent (8 hours) and
took unscheduled vacation time. (Docket Entry No. 13-1 at
39). The Summers memorandum states that Byrd missed 8
hours and treated the time as an unscheduled absence.
(Docket Entry No. 16-4).
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November 21–22, 2017
Byrd’s timesheets show that she was absent from work (8
hours) and took vacation sick leave each of these days.
(Docket Entry No. 13-1 at 39). The Summers memorandum
states that Byrd missed 8 hours each day and treated the time
as unscheduled absences. (Docket Entry No. 16-4).
November 23, 2017
Byrd’s timesheets list this date as Thanksgiving Day.
(Docket Entry No. 13-1 at 40). The Summers memorandum
states that Byrd missed 8 hours and treated the time as an
unscheduled absence. (Docket Entry No. 16-4).
November 24, 2017
Byrd’s timesheets list this date as the “Day After
Thanksgiving.” (Docket Entry No. 13-1 at 40). The
Summers memorandum states that Byrd missed 8 hours and
treated the time as an unscheduled absence. (Docket Entry
No. 16-4).
November 25, 2017
Byrd’s timesheets show that she was absent (8 hours) and
took vacation sick leave. (Docket Entry No. 13-1 at 40). The
Summers memorandum states that Byrd missed 8 hours and
treated the time as an unscheduled absence. (Docket Entry
No. 16-4).
November 28, 2017
Byrd’s timesheets show that Byrd was present. (Docket
Entry No. 13-1 at 40). The Summers memorandum states that
Byrd missed 1 hour and treated the time as an unscheduled
absence. (Docket Entry No. 16-4).
December 5, 2017
Byrd receives her November Employee Performance Review
showing 8 hours of unscheduled time for November and 16
hours for the year. (Docket Entry No. 13-1 at 8).
February 1, 2018
Byrd requests an FMLA packet and is absent from work.
(Docket Entry No. 13-1 at 15). Byrd asserts that this was the
first day of her FMLA leave. (Docket Entry No. 1 at ¶ 7).
Byrd’s timesheets show that she was absent (8 hours) and
took compensable sick leave. (Docket Entry No. 13-1 at 41).
The City argues it did not consider this absence in deciding
to terminate her employment. (Docket Entry No. 15-2 at 2).
February 2–3, 2018
Byrd’s timesheets show that she was absent (8 hours) and
took vacation sick leave each day. (Docket Entry No. 13-1 at
41). The City argues it did not consider this absence in
deciding to terminate her employment. (Docket Entry No.
15-2 at 2).
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February 4, 2018
Byrd’s timesheets show that she was absent (8 hours) and
took compensable sick leave and vacation sick leave.
(Docket Entry No. 13-1 at 41). The City argues that it did not
consider this absence in deciding to terminate her
employment. (Docket Entry No. 15-2 at 2).
February 5, 2018
Byrd’s timesheets show that she was absent (8 hours), listing
her as “AWOL” and as taking unscheduled vacation time.
(Docket Entry No. 13-1 at 41). The City argues that it did not
consider this absence in deciding to terminate her
employment. (Docket Entry No. 15-2 at 2).
February 6, 2018
Byrd receives the FMLA packet from Blackshear. (Docket
Entry No. 13-1 at 12, 16).
February 8, 2018
Byrd’s timesheets show that she was absent (8 hours), listing
her as “AWOL.” (Docket Entry No. 13-1 at 42). The City
argues it did not consider this absence in deciding to
terminate her employment. (Docket Entry No. 15-2 at 2).
February 9, 2018
Byrd’s timesheets show that she was absent (8 hours), listing
her as “AWOL.” (Docket Entry No. 13-1 at 42). The City
argues it did not consider this absence in deciding to
terminate her employment. (Docket Entry No. 15-2 at 2).
Blackshear informed Byrd that she was eligible for FMLA
leave. (Docket Entry No. 13-1 at 13).
February 10–11, 2018
Byrd’s timesheets show that she was absent (8 hours), listing
her as “AWOL” for each day. (Id. at 42). The City argues it
did not consider these absences in deciding to terminate her
employment. (Docket Entry No. 15-2 at 2).
February 12, 2018
Byrd returns to work. (See Docket Entry No. 1 at ¶ 7).
February 13, 2018
Byrd is informed that her FMLA request is denied. (Docket
Entry No. 13-1 at 17–18). Byrd fills out the Date of
Request/Notice of FMLA form. (Id. at 23).
February 20, 2018
Byrd has a doctor complete the FMLA healthcare provider
form. (Id. at 20–22).
February 22, 2018
Byrd is terminated. (See Docket Entry No. 13-1 at 4–6).
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C.
Byrd’s Estoppel Claim
Byrd concedes that she was not an eligible employee when she requested FMLA leave
because she had not worked for the City for a full year. (Docket Entry No. 14 at 5). However, she
argues that the City is estopped from asserting an ineligibility defense because the City represented
to her that she was eligible, had reason to know that she would rely on that representation, and she
reasonably relied on that representation, to her detriment. (Id.).
In Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352 (5th Cir. 2006), the
plaintiff, Melissa Minard, requested FMLA leave for surgery. Her employer granted her request,
stating that she was an “eligible employee” under the Act. Id. at 354. After Minard took her leave,
her employer discovered that she was not eligible “because when she requested leave [the employer]
employed less than 50 employees at or within 75 miles of [her] worksite.” Id. The district court
granted summary judgment to the employer, but the Fifth Circuit reversed. Id. at 358. The appellate
court explained that equitable estoppel could operate to preclude an employer from asserting an
eligibility defense against an employee to whom the employer had made representations of FMLA
leave eligibility. Id. The court stated:
an employer who without intent to deceive makes a definite but erroneous
representation to his employee that she is an “eligible employee” and entitled to
leave under FMLA, and has reason to believe that the employee will rely upon it,
may be estopped to assert a defense of non-coverage, if the employee reasonably
relies on that representation and takes action thereon to her detriment.
Id. at 359. The court concluded that there was a factual dispute material to deciding whether
Minard had shown that equitable estoppel applied. Id. While the employer “unintentionally made
a definite misrepresentation to Ms. Minard that she was an ‘eligible employee’ under [the] FMLA
at the time she requested leave,” and Minard had “reasonably relied upon that misrepresentation,”
the question of whether she had relied on the misrepresentation to her detriment remained. Id.
15
Byrd argues that the facts meet each of Minard’s elements. (Docket Entry No. 14 at 10).
First, the City represented that she was eligible to take FMLA leave “both orally and in writing.”
(Id.). Second, the City knew she needed the FMLA leave to care for her daughter, establishing a
clear reason to believe that she would rely on that representation. (Id.). Third, she relied to her
detriment on the representation because she took the leave, but “[i]f she had known that she would
lose her job, she would have worked with her family to find alternative arrangements.” (Id. at
10–11). The third element is disputed.
Byrd argues that the City’s issuance of the Notice of Eligibility on February 6 supports her
estoppel claim. She points out that the FMLA requires an employer to inform an employee it
believes to be taking leave “for an FMLA-qualifying reason” to “notify the employee of the
employee’s eligibility” for that leave within five business days. (Id. at 11 (quoting 29 C.F.R.
§ 825.300(b)(1))). Byrd argues that the February 6 Notice was the required notification of her
FMLA eligibility. (Id.). Byrd contends that retroactive designations of ineligibility are permitted
“only if the change ‘does not cause harm or injury to the employee.’” (Id. (quoting 29 C.F.R.
§ 825.301(d))).
The City argues that estoppel does not apply because Byrd was provided with the Center’s
Policies and Procedures Overview Manual and the City’s FMLA Policy. (Docket Entry No. 16 at
7). The City explains that the City’s Policy provides the eligibility requirements for FMLA leave.
(Id.). There is no Center-specific FMLA leave approach different from the City’s in the Center’s
Overview.
Byrd’s summary judgment evidence supports her assertion that she has met most of Minard’s
requirements. First, the City made a representation that Byrd was an eligible employee. (See
Docket Entry No. 13-1 at 13). Cases citing Minard in the Fifth Circuit have primarily examined an
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employer’s misrepresentations about employee eligibility in relation to the threshold number of
employees at a worksite. See, e.g., Allen v. MidSouth Bank, No. H-12-1618, 2013 WL 708029, at
**4–7 (S.D. Tex. Feb. 25, 2013); McFadden v. Seagoville State Bank, No. 3:08-CV-0467-B, 2009
WL 37596, at *6 (N.D. Tex. Jan. 6, 2009). Cases outside the Fifth Circuit cited with approval in
Minard suggest that equitable estoppel also applies to representations made in relation to the 1-year
eligibility threshold. See, e.g., Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706,
724–27 (2d Cir. 2001). Gurley v. Ameriwood Indus., Inc., 232 F. Supp. 2d 969, 973–74 (E.D. Mo.
2002) is instructive. Catherine Gurley was informed that she was eligible for FMLA leave on
January 6, 1999, but she had not worked for the company for 1 year until January 12, 1999. Id. at
973. Gurley was terminated and sued. The district court denied the employer’s motion for summary
judgment, finding that there were factual disputes material to deciding if equitable estoppel applied.
The employer had informed Gurley that she was eligible for FMLA leave before the end of her first
year, which was sufficient evidence to show that equitable estoppel might apply. Id. at 974.
The joint statement shows that Byrd made a request for FMLA leave—through email and
the City’s official FMLA form—and the City, through FMLA Coordinator Shirley Blackshear,
stated that Byrd was eligible. (Docket Entry No. 13-1 at 13). The City has not disputed these facts.
Byrd has provided sufficient evidence that her employer made a definite statement misrepresenting
her eligibility for FMLA leave.
Byrd also provides sufficient evidence that she relied on Blackshear’s representation, but
there is a factual dispute as to whether she relied on that representation to her detriment. In Minard,
the Fifth Circuit held that a plaintiff must show detrimental reliance on the employer’s
misrepresentation, but it concluded that a genuine dispute of material fact existed as to whether
Minard had done so. Minard, 447 F.3d at 397. Minard’s employer argued “that she would have
17
been forced to undergo her surgery at that time regardless” of whether she was granted leave, and
Minard asserted “that there were other medical alternatives available to her . . . and that she would
have followed such an alternate course if [her employer] had correctly informed her that she was”
ineligible for FMLA leave. Id. Minard’s employer did not dispute that she was terminated for her
absences related to the surgery.
Byrd argues that she “relied on the assurances of the City that she qualified for leave,” in that
she would not have taken leave if she had known that she was ineligible and would be fired if she
did so. (Docket Entry No. 14 at 8). She explains that “she had family members who could have
covered for her at the hospital while she went to work.” (Id.). The City has not challenged that Byrd
relied on Blackshear’s representation of her eligibility. However, the City does dispute that Byrd’s
termination was related to her FMLA leave in February 2018 to care for her daughter. (Docket
Entry No. 16 at 7). The City argues that the recorded absences for the FMLA leave were not taken
into account when the February 2018 termination decision was made. (Id.). There is a clear factual
dispute about the causal connection between the February 2018 absences and Byrd’s termination,
material to determining that Byrd’s reliance on Blackshear’s material representation of her eligibility
was to her detriment.
There is also a genuine factual dispute material to determining whether Byrd reasonably
relied on the City’s representation. Byrd argues that she “knew nothing about the legal requirements
for FMLA leave, but she had no reason to question the assurance from the ‘FMLA Coordinator’ that
she qualified for FMLA leave.” (Docket Entry No. 14 at 7). The City suggests that it was
unreasonable for Byrd to rely on Blackshear’s representation because when Byrd began working,
she received the Center’s Policies and Procedures Overview Manual, which included the City’s
FMLA policy. (Docket Entry No. 16 at 7; Docket Entry No. 13-1 at 52). The FMLA policy clearly
18
states that only employees who have worked for the City for one year are eligible for FMLA leave.
(Docket Entry No. 16 at 7). Byrd responds that the City offers no proof that she “actually read
those policies to determine her eligibility,” and the City “does not deny that [she] was entitled to rely
on a representation from the City’s own FMLA Coordinator.” (Docket Entry No. 17 at 1). Neither
side presents case law explaining when it is reasonable for an employee to rely on the
representations of an FMLA coordinator (or similarly situated employee) over written policy
statements previously provided to an employee. The parties dispute the reasonableness of Byrd’s
reliance on Blackshear’s misrepresentations that Byrd was eligible for leave, as well as whether
Byrd’s reliance on that misrepresentation was to her detriment. These are genuine factual disputes
material to deciding if equitable estoppel applies. Summary judgment is inappropriate on the issue
of whether equitable estoppel applies to Byrd’s claims.
D.
Byrd’s Claims for FMLA Violations
An employer may not interfere with, restrain, deny, or retaliate based on the exercise of
FMLA rights. See 29 U.S.C. § 2615(a)(1)–(2); see also Shirley v. Precision Castparts Corp., 726
F.3d 675, 681 (5th Cir. 2013). The elements of a plaintiff’s prima facie interference claim are that:
(1) the plaintiff was an eligible employee; (2) the employer was subject to the FMLA; (3) the
plaintiff was entitled to leave; (4) the plaintiff gave the required notice that she was taking FMLA
leave; and (5) the employer denied the benefits due under the FMLA. Caldwell v. KHOU-TV, 850
F.3d 237, 245 (5th Cir. 2017) (citing Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App’x 312, 316
(5th Cir. 2013)). The elements of a prima facie retaliation claim are that: “(1) [the employee]
engaged in a protected activity; (2) the employer discharged her; and 3) that there is a causal link
between the protected activity and the discharge.” Miedema v. Facility Concession Servs., Inc., 487
F. App’x 214, 218 (5th Cir. 2012). If these elements are shown, the employer then has the burden
19
to “articulate[] a legitimate non-discriminatory reason for the employment action at issue.”
Caldwell, 850 F.3d at 245 (citing Miller v. Metrocare Servs., 809 F.3d 827, 832 (5th Cir. 2016). If
the employer meets this burden, the plaintiff must identify an issue of material fact showing that the
stated reason was pretextual. Id. “In the context of a summary judgment proceeding, the question
is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of
fact regarding pretext.” Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633, 646 (5th Cir.
1985).
Byrd argues that she has made a prima facie showing of her FMLA interference claim.
(Docket Entry No. 14 at 12). Neither party disputes that the City is “an employer subject to the
FMLA’s requirements.” (Id.). Byrd argues that because the City is estopped from using FMLA
ineligibility as defense, she is properly considered an eligible employee who was entitled to the
FMLA leave she took and who gave proper notice of her intent to take that leave. (Docket Entry
No. 14 at 12). Byrd alleges that the City interfered with her FMLA rights by “fail[ing] to properly
process her under the FMLA” and “by then terminating her for taking leave that was protected under
the FMLA.” (Docket Entry No. 1 at ¶ 12).
The City argues that it had a “legitimate non-discriminatory reason” for terminating Byrd,
unrelated to her FMLA leave. The City argues that Cutler’s affidavit presents “[t]he City’s
articulated non-discriminatory reason and the only reason for its decision in terminating” Byrd.
(Docket Entry No. 19 at 2). Cutler’s affidavit and termination letter to Byrd explain that her
“unsatisfactory attendance during the period of probation” was the basis for his decision. (Id.).
Cutler’s affidavit asserts that Byrd’s 88 hours of unscheduled absences between July 2017 and
November 2017—which the Summers memorandum documents as occurring almost exclusively in
November 2017—was the only factor in his decision to terminate Byrd. Cutler’s affidavit and the
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termination letter “note[] that any [FMLA] time [in February 2018] was not taken into consideration
in arriving at the employment decision.” (Docket Entry No. 16-2 at 2; Docket Entry No. 19 at 1).
The City explains that under City policy, any absence, including absences for sick leave and accrued
vacation time, taken without 24-hour advance notice, is an unscheduled absence properly counted
as such in a termination decision. (Docket Entry No. 13-1 at 30; Docket Entry No. 16 at 16). The
City asserts that “[t]he termination letter’s characterization of Byrd’s time as ‘unscheduled’” means
that her absences “could only be . . . those absences [that] had not been given, minimally, within the
24-hour timeline provided under [the Policy], including any sick leave she sought to use.” (Docket
Entry No. 16 at 16 (emphasis omitted)).
Cutler explains that he relied on non-FMLA unscheduled absences in making his termination
decision, absences that he asserts are documented in the August 2018 Summers memorandum.
(Docket Entry No. 16-2 at 2). The Summers memorandum does not list any absences in February
2018. Instead, it shows only that Byrd was absent from work on November 11, 14–18, 21–25, and
28, 2017, due to illness, accruing 89 hours of absences. (Docket Entry No. 16-4). It also shows an
additional sick day taken on October 7, 2017, contributing a further 7.45 hours to her hours missed.
(Id.). While the memorandum is hearsay to the extent used to prove that the information as to
Byrd’s absences was accurate or accurately described as unscheduled, the memorandum provides
some support for Cutler’s argument that his termination decision was not based on Byrd’s February
2018 FMLA leave, but he did not have the memorandum before making that decision.
Byrd’s timesheets also appear to support at least some of the Summers memorandum’s
reporting of Byrd’s sick leave. (See Docket Entry No. 13-1 at 35–51). The timesheets show that
for November 11 and November 14–17, Byrd accrued 40 hours of sick leave. (Docket Entry No.
13-1 at 39). But the timesheets appear to show that Byrd’s absence on November 18 was classified
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as unscheduled vacation time; her absences on November 21, 22, and 25 were classified as vacation
sick time, without indicating whether those were scheduled or unscheduled; her absences on
November 23 and 24 were for Thanksgiving Day and the “Day After Thanksgiving,” without
indicating whether those were scheduled or unscheduled; and no absence was reported for
November 28. (Id. at 39–40). Based on the Center’s policy that “unscheduled sick leave” may
count toward unscheduled absences, the Summers memorandum and the timesheets support the
City’s position insofar as Byrd had numerous absences in November. However, the timesheets do
not document whether those sick days were scheduled or unscheduled, and the sick days the
timesheets document suggest that even considering Byrd’s unscheduled absences, they were well
under 88 hours in that period. (See Docket Entry No. 13-1 at 39–40).
Byrd argues that the City has not shown undisputed facts that, as a matter of law, establish
that her termination was for a reason unrelated to her FMLA absences. (Docket Entry No. 14 at 12).
She argues that “the City set out to invent a justification for the termination” by asserting that “Byrd
had multiple [unscheduled] absences in November 2017 and that those absences formed the basis
for her termination in February 2018.” (Id.). She asserts that “[w]ithout counting the FMLA time,
the City’s records show that [she] had only 16 hours of unscheduled time” before her termination.
(Docket Entry No. 14 at 13).
Byrd presents evidence supporting an inference that the City’s explanation of her termination
is pretextual. Byrd explains that probationary employees accrue sick and vacation time during part
of the probationary period, arguing that “[b]y November [8] 2017, [she] had worked for the City
long enough to accrue sick time and vacation time” to take time off in November. (Id.). She asserts
that her November 2017 absences were scheduled leave time because she used her accrued sick time
to cover most of the absences from work, and the Center’s policy states that vacation time and sick
22
time can be scheduled leave. (Id.). The City argues that Byrd had not accrued any vacation time
by November 2017 because she was a probationary employee and City policy dictates that
probationary employees do not accrue vacation time for six months. But Byrd correctly points out
that she would have been accruing sick leave even during her probationary period. (Docket Entry
No. 16 at 16; Docket Entry No. 14 at 13). Because Byrd started on May 8, 2017, she could use, and
she received, vacation time starting on November 8, 2017. (Docket Entry No. 17 at 3). She argues
that her pay statements would show this as accrued vacation time, but the City has not produced
these pay statements. (Id.). She points to Riley’s pay statements as evidence that Byrd would have
accrued vacation and sick time as well, making some of what the City says are unscheduled absences
into scheduled time away. (Id.; Docket Entry No. 14-1 at 24–54).
Byrd’s declaration explains that she discussed using vacation and sick time for her November
2017 absences with her supervisors, “and all of it (except for . . . one day) was approved and
authorized.” (Docket Entry No. 14-1 at 4). She does not allege when this approval happened. Byrd
offers her November 2017 Employee Performance Monthly Review that shows she had only 8 hours
of unscheduled absences in November and 16 hours for the year to date. (Docket Entry No. 14 at
13). Byrd argues that her timesheets also show only 8 hours of unscheduled absences—the time
marked as unscheduled vacation time—for November 2017, “which is below the City’s 40-hour
threshold for discipline for a probationary employee,” and well below the 88 hours the City relies
on. (Docket Entry No. 17 at 2). Byrd also suggests that if her termination was related to her
November 2017 absences, she would have received the probationary counseling required under the
Center’s Policy before the termination. (Docket Entry No. 14 at 9). However, she never received
any counseling. (Id.).
23
While the City presented a legitimate, nondiscriminatory reason for firing Byrd, the
arguments and record show that there are several genuine factual disputes material to determining
whether the City’s explanation is pretextual. The parties dispute whether the 88 hours of
unscheduled absences that Cutler refers to in the termination letter are Byrd’s actual unscheduled
absences in 2017. Byrd’s declaration and the November performance evaluation the City prepared
state that the City counted many of those absences as scheduled absences. (See Docket Entry No.
13-1 at 30 ). Second, the City’s timesheets for Byrd and Summers’s August 2018 memorandum do
not provide matching reports of Byrd’s absences in November 2017.
Again, the City’s
inconsistencies show genuine factual disputes about Byrd’s absences, including whether the number
of hours absent and whether they were scheduled or unscheduled. The timesheets do not show 88
hours of sick leave—whether scheduled or unscheduled—in November 2017. (See Docket Entry
No. 13-1 at 24–54). Neither party has explained how Thanksgiving Day and the day after
Thanksgiving were counted toward Byrd’s absences. Nor have the parties explained whether the
sick leave hours were treated as scheduled or unscheduled. Additionally, Byrd’s Employee
Performance Monthly Reviews, which the City contemporaneously prepared, report that her
unscheduled absences in November 2017 were only 16 hours, which contradicts the Summers
memorandum and suggests that the City counted Byrd’s sick time in November as scheduled time
and that the City told Byrd that these hours were treated as scheduled absences. (See Docket Entry
No. 13-1 at 8). The City has not explained these discrepancies or inconsistencies.
The timing of Byrd’s termination also undermines City’s proffered justification for firing her.
The Fifth Circuit has instructed district courts to “consider the ‘temporal proximity’ between the
FMLA leave, and the termination” in evaluating the causal link in FMLA retaliation cases. Mauder
v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006). The City argues that Byrd was
24
terminated for the absences she accrued before the end of November 2017, but it did not terminate
her until February 2018. (See Docket Entry No. 13). The termination decision was ten days after
Byrd returned from the FMLA leave and nine days after the City informed Byrd that she was
ineligible for the leave she had taken. It was almost three months after Byrd’s November 2017
absences. The temporal proximity connecting Byrd’s leave, the City’s retroactive denial of FMLA
leave eligibility, and her termination, raises factual disputes material to whether retaliation was the
reason for her termination. See Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 335 (5th Cir.
2005).
Pretext and causation are disputed. Summary judgment cannot be granted to either party as
to liability.
E.
Byrd’s Claim for Liquidated Damages
Byrd seeks summary judgment that the City is liable for liquidated damages under the
FMLA. (Docket Entry No. 14 at 14). Under the FMLA, an employee may receive “an additional
amount as liquidated damages equal to the sum of” back pay, benefits, and prejudgment interest.
29 U.S.C. § 2617(a)(1)(A)(iii). A court may reduce a liable employer’s liquidated damages if the
employer “proves to the satisfaction of the court that the act or omission which violated [the FMLA]
was in good faith and that the employer had reasonable grounds for believing that the act or
omission” did not violate the Act. Id. Because there are genuine factual disputes material to the
City’s liability under the FMLA, the court need not reach Byrd’s motion for partial summary
judgment on liquidated damages. Even if Byrd had proved the City’s liability, there would also be
genuine factual disputes material to deciding whether liquidated damages are proper.
Byrd notes that “[f]or the purposes of this motion, we will assume that there is a fact issue
as to subjective good faith,” but she argues that she is entitled to liquidated damages because “the
25
summary judgment evidence shows that the City did not have objectively reasonable grounds for
believing that its conduct was lawful.” (Docket Entry No. 14 at 15). Byrd argues that the summary
judgment evidence establishes that the City approved her FMLA leave and then denied that leave
after her return “even though nothing in the FMLA permits an employer to do this when it harms
the employee.” (Id. at 16). She asserts that the City then fired her and ignored her counsel’s letter
to David Cutler informing the City that it had violated the FMLA. (Id.). Byrd argues that these facts
show that “[t]here is no objectively reasonable basis for the City’s actions.” (Id.). The City argues
that it acted in good faith and, referencing its arguments related to liability, had reasonable grounds
to believe that Byrd’s February 2018 termination did not violate the FMLA because the City asserts
that it was based on her November 2017 absences. (Docket Entry No. 16 at 10).
Because there are genuine factual disputes material to deciding liability and whether the City
acted in good faith and with a reasonable belief that it was not violating the FMLA, summary
judgment as to liquidated damages is inappropriate.
IV.
Conclusion
The court denies Byrd’s motion for partial summary judgment and the City’s motion for
summary judgment. (Docket Entry Nos. 14, 15, 16).
SIGNED on January 29, 2019, at Houston, Texas.
______________________________________
Lee H. Rosenthal
Chief United States District Judge
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