Burnette v. RateGenius Loan Services, Inc.
REPORT AND RECOMMENDATIONS; GRANTS 2 Motion to Proceed in forma pauperis filed by Phillip Lovic Burnette, II; DENYING AS MOOT 3 Motion to Appoint Counsel filed by Phillip Lovic Burnette, II. 1 Complaint filed by Phillip Lovic Burnette, II. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
PHILLIP L. BURNETTE II,
RATEGENIUS LOAN SERVICES
ORDER ON IN FORMA PAUPERIS STATUS AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Phillip L. Burnette’s (“Burnette”) Application to Proceed In
Forma Pauperis (Dkt. No. 2); Financial Affidavit in Support; Original Complaint (Dkt. No. 1); and
Motion for Appointment of Counsel (Dkt. No. 3). The District Court referred the motion to the
undersigned Magistrate Judge for a determination on the merits pursuant to a standing order of the
Court and 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix
C to the Local Rules of the United States District Court for the Western District of Texas.
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
After reviewing Burnette’s Application to Proceed In Forma Pauperis, the Court finds that,
although he is on the borderline1 of indigency status, he is indigent. Accordingly, the Court
HEREBY GRANTS Burnette in forma pauperis status and ORDERS his Complaint be filed
without pre-payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a)(1).
This indigent status is granted subject to a later determination that the action should be dismissed
if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28
Burnette’s financial affidavit indicates that in the last twelve months he received a $13,000
inheritance and approximately $6000 in self-employment wages. He lists his expenses as $490 per
month as he currently lives with his mother.
U.S.C. § 1915(e). Burnette is further advised that although he has been granted leave to proceed in
forma pauperis, a Court may, in its discretion, impose costs of court at the conclusion of this lawsuit,
as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, this Court has conducted a § 1915(e) review of the claims made in
Burnette’s Complaint and is recommending his claims be dismissed under 28 U.S.C. § 1915(e).
Therefore, service upon the Defendants should be withheld pending the District Court’s review
of the recommendations made in this report.
If the District Court declines to adopt the
recommendations, then service should be issued at that time upon the Defendants.
II. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Because Burnette has been granted leave to proceed in forma pauperis, the Court is required
by standing order to review his Complaint under §1915(e)(2), which provides in relevant part that
“the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i)
is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). “A
complaint filed IFP may be dismissed as frivolous if it lacks an arguable basis in law or fact,”
Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995), and the claims “are of little or no weight, value, or
importance, not worthy of serious consideration or trivial.” Deutsch v. United States, 67 F.3d 1080,
1083 (3d Cir. 1995).
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520–21 (1972). The court must “accept as true factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996);
see also Watts v. Graves, 720 F.2d 1416, 1419 (5th Cir. 1983). In deciding whether a complaint
states a claim, “[t]he court’s task is to determine whether the plaintiff has stated a legally cognizable
claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial plausibility when
the [nonmovant] pleads factual content that allows the court to draw the reasonable inference that
the [movant] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. However, the petitioner’s pro se status does
not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the
judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson
v. Mbank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Burnette claims that, while employed at Rategenius Loan Services, his employer interfered
with his rights to take leave pursuant to the Family and Medical Leave Act by failing to give him
adequate notice of those rights. 29 U.S.C. § 2615(a). Additionally, he claims he was terminated on
May 19, 2014, in retaliation for giving notice to his employer of a potentially FMLA eligible
Burnette asserts that he was diagnosed with syncope (temporary loss of consciousness due
to low blood pressure) on April 29, 2014, and gave notice to his employer of that diagnosis on April
30, 2014. Burnette maintains that prior to this, he had been having issues with dizzy spells and loss
of consciousness in the summer and fall of 2013, but had not yet been diagnosed with syncope. He
pleads that his employer was aware of this condition and that he had discussed it with a supervisor.
Burnette was in an automobile accident on December 13, 2013, in which he hit a house. According
to Burnette, the incident was investigated by the police for driving while intoxicated. Burnette
notified his Vice President of the accident (although he failed to mention the DWI investigation),
who allowed him to work remotely for four months in order to minimize the dangers of driving.
Shortly after he informed his employer of his syncope diagnosis, on May 5, 2015, Human Resources
Manager Jacklyn Box requested a copy of a doctor’s note describing the condition. The pleadings
are silent regarding whether Burnette produced any such note, but the Complaint does state that
Burnette was terminated on May 19, 2014, for two stated reasons: (1) failure to timely produce a
doctor’s note; and (2) lying about the nature of the accident by omitting any mention of the DWI
investigation. (Burnette admits in his pleadings that he was eventually charged and arrested for
DWI. There is no mention of the disposition of this charge.)
FMLA Interference Claim
The FMLA provides that employers with fifty employees or more provide a qualified
employee up to twelve weeks of unpaid leave within a twelve-month period if he or she has 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 “serious health condition” is defined as an “illness, injury,
impairment or physical or mental condition that involves. . . continuing treatment by a health care
provider.” 29 U.S.C. § 2611(11). To protect the rights granted by the FMLA, the act prohibits an
employer from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to
exercise” an employee’s right to take leave. 29 U.S.C. § 2615(a). “Interfering with the exercise of
an employee's rights would include, for example, not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave.” 29 C.F.R. § 825.220. Additionally, “[t]he failure
to notify an employee of her rights under the FMLA can constitute interference if it affects the
employee’s rights under the FMLA.” Liston v. Nevada ex rel. its Dept. of Bus. and Indus., 311 Fed.
Appx. 1000, 1002 (9th Cir. 2009) (unpublished) (citing Xin Liu v. Amway Corp., 347 F.3d 1125,
1133–34 (9th Cir. 2003). But the FMLA does not provide relief “unless the employee has been
prejudiced by the violation.”Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) and
29 U.S.C. § 2617(a)(1)).
In this case, Burnette is apparently arguing that he should have received notice of his rights
pursuant to the FMLA when he informed his employer of his diagnosis on April 30, 2014. In order
to establish a prima facie case of interference under the FMLA an employee must show: (1) he was
an eligible employee under the FMLA; (2) the employer was subject to the FMLA’s requirements;
(3) he was entitled to FMLA leave; (4) he gave notice to the employer of his intent to take FMLA
leave; and (5) he was denied an entitlement under the FMLA, or the employer failed to respect the
employee’s FMLA entitlements. See Morgan v. Neiman–Marcus Group, Inc./Neiman–Marcus
Direct, 2005 WL 3500314, at *4 (N.D. Tex. Dec. 20, 2005). It is evident from the face of the
pleadings that Burnette cannot make out a claim for FMLA interference. He has failed to
plead—and even construing the complaint broadly, he has failed to demonstrate—that he was
entitled to FMLA leave, as he continued to perform his job remotely for four months while suffering
from syncope. He therefore did not qualify as a person “unable to perform the functions of the
position” as required to be eligible for FMLA leave under the statute. 29 U.S.C. § 2612.
Additionally, Burnette has failed to plead any facts that would demonstrate that he was
prejudiced by any interference, had any occurred. Prejudice to the employee is a necessary element
because “the statutory cause of action for FMLA violations, provides only for compensatory—and
not punitive—damages.” Roseboro v. Billington, 606 F. Supp. 2d 104, 108 (D. D.C. 2009) (citation
and footnote omitted). Thus, “[a]n FMLA violation prejudices an employee only when the
‘employee loses compensation or benefits by reason of the violation, sustains other monetary losses
as a direct result of the violation, or suffers some loss in employment status remediable through
appropriate equitable relief.’” Id. (quoting Reed v. Buckeye Fire Equip., 241 Fed. Appx. 917, 924
(4th Cir. 2007)) (citations omitted). Burnette has failed to plead any facts showing he was prejudiced
by his employer not apprising him of his FMLA rights. While he argues that he could have made
different choices and moved closer to work so that he did not need to drive, those are not the types
of things within the scope of the FMLA. The FMLA merely entitles an employee to leave without
pay for a qualifying medical condition, and there is nothing in Burnette’s pleadings indicating that
he wished to take—assuming he was qualified to take—unpaid leave. Further, Burnette admits that
he did not inform his employer of the DWI investigation when he disclosed the accident that led to
his beginning to work remotely, and pleads that this non-disclosure was an independent basis for his
termination. This too defeats any claim of prejudice. Burnette’s own pleadings show that he would
have been terminated regardless of any rights he did or did not have under the FMLA, and thus his
employer’s failure to notify him of those rights could not have caused him any harm.
A prima facie case of FMLA retaliation requires that the plaintiff demonstrate: (1) he was
protected by FMLA; (2) he was subject to an adverse employment decision; and either (3) he was
treated less favorably than an employee who had not requested leave under FMLA or the adverse
decision was made because he took FMLA leave. 29 U.S.C. § 2615(a)(2); Elsensohn v. St. Tammany
Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008); Hunt v. Rapides Healthcare System, LLC,
277 F.3d 757, 768 (5th Cir. 2001). In this case, Burnette did not request and did not take FMLA
leave. Thus, he could not have been retaliated against on that basis. The Court finds this claim is also
III. ORDERS AND RECOMMENDATIONS
In accordance with the foregoing discussion, the Court HEREBY GRANTS Burnette in
forma pauperis status. Service upon Defendant should be withheld pending the District Court’s
review of the recommendations made in this report. The undersigned FURTHER RECOMMENDS
that the District Court DISMISS this cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B). IT IS
FURTHER ORDERED that Motion for Appointment of Counsel (Dkt. No. 3) is DENIED AS
MOOT. IT IS LASTLY ORDERED that this cause of action is REMOVED from the undersigned
magistrate’s docket and RETURNED to the docket of the Honorable Sam Sparks.
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
SIGNED this 23rd day of May, 2016.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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