Lubke v. City of Arlington, 04-11213.

Citation455 F.3d 489
Decision Date30 June 2006
Docket NumberNo. 04-11213.,04-11213.
PartiesKim W. LUBKE, Plaintiff-Appellee, v. CITY OF ARLINGTON, et al., Defendants, City of Arlington, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Roger L. Hurlbut (argued), Law Offices of Robert Hurlbut, Arlington, TX, for Lubke.

Bryan Patrick Neal, Thompson & Knight, Dallas, TX, Frank Waite, Asst. City Atty., Arlington, TX, for City of Arlington.

On Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.

EDITH H. JONES, Chief Judge:

What began as a routine disciplinary effort to ensure work attendance during the run-up to "Y2K" ended in the discharge of a 22-year veteran of the City of Arlington, Texas, Fire Department. He filed suit challenging the discharge, inter alia, as a violation of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. ("FMLA"). The City now appeals from a substantial adverse jury award. We AFFIRM liability but REVERSE and REMAND the damage award for further proceedings.

I. BACKGROUND

Kim Lubke was a Battalion Chief in the City of Arlington's Fire Department in charge of eight fire stations and forty to fifty employees.

In preparation for the year 2000 ("Y2K"), the City's critical departments, including the Fire Department, developed contingency plans in the event widespread electronic problems should arise. The Y2K plan was in effect from 6 p.m. December 31, 1999, through 7 a.m. January 2, 2000. To ensure full staffing during that weekend, the City required all Fire Department employees to report to a designated Battalion Chief by dawn each day before reporting for duty. During the pendency of the Y2K plan, they were not permitted to call the unmanned answering machines ("call boxes") to report unscheduled leave. Additionally, the City restricted its normal, more informal sick leave policies, and instead required a doctor's written substantiation of any absence.

Lubke was scheduled to work from December 31, 1999, through January 1, 2000. On December 30, 1999, at 8:11 p.m., Lubke telephoned a call box and left a message stating that he would not be at work during the Y2K weekend because he needed to stay home to care for his sick wife, who also was employed by the City. Throughout December, Lubke's wife was ill with flu symptoms and back pain. Lubke claimed at trial that his wife's back pain had been a chronic, periodically occurring condition. He also testified that she was incapacitated from December 30, 1999, through the morning of January 3, 2000.

The Lubkes both returned to work on January 3. Lubke submitted a standard leave form, on which he wrote: "Wife was ill with severe bronchitis/possible pneumonia. During coughing spells had strained back muscles and could not get out of bed. Needed my assistance." He attached to the leave form an examination form from a doctor dated December 22, 1999, as well as receipts for three prescriptions for Mrs. Lubke, one of which was filled December 22, and the other two of which were filled on December 29. Lubke's paid leave was disapproved for insufficient substantiation. Lubke's wife, however, submitted identical documentation to the City, and her leave was approved.

Even before Lubke submitted his leave form, Assistant Fire Chief Larry Brawner lodged a personnel complaint against Lubke for his unscheduled Y2K leave. Lubke acknowledged receipt of the complaint. He "repeatedly" asked Brawner what type of substantiation would be sufficient, but Brawner refused to answer. On January 15, Lubke asked Human Resources for clarification on the substantiation issue, but was referred back to Brawner, who again refused to answer.

Further details of the extensive grievance procedures that ensued are unnecessary to recount. Viewed in the light most favorable to the jury verdict, the dispute initially concerned whether two days of sick leave should be treated as paid or unpaid. From January to mid-April, Lubke was never clearly informed of what medical substantiation of his wife's condition was required, nor was he warned that he could be fired for not providing it.

On April 14, 2000, Brawner notified Lubke of his impending discharge for dereliction of duty, unauthorized absence, and insubordination. To no avail, Lubke asked for two additional days to obtain a report from his wife's doctors. He was discharged effective April 19. A week later, Mrs. Lubke submitted a letter from Dr. Wilkerson, her treating physician, dated December 22, 1999, which addressed her condition and explained why Lubke had to be present to care for his wife. This was followed by another letter from Dr. Pulliam, the Lubkes' regular doctor, which also addressed Mrs. Lubke's condition, and confirmed her husband's decision.

In early May, Lubke appealed his discharge to Fire Chief Robin Paulsgrove. Chief Paulsgrove acknowledged that the doctors' letters provided adequate medical documentation and substantiation, but he considered them untimely and upheld the discharge.

Lubke sued the City, Paulsgrove, and Brawner on FMLA and Fair Labor Standards Act ("FLSA") claims in state court. After the City removed to federal court, the district court granted the City summary judgment on the FLSA claim and, subsequently, dismissed the individual defendants, against whom the FMLA offers no relief. A ten-day jury trial resulted in a verdict for Lubke on his FMLA claim against the City. The judgment awarded Lubke damages for lost wages and benefits ($395,394), liquidated damages ($300,000), attorney fees ($305,292), and court costs ($9,576).1

II. DISCUSSION

The City argues that the district court erred in 1) denying the City's JML regarding Lubke's failure to present legally sufficient evidence that his wife had an FMLA "serious health condition" on the days in question; 2) denying the City's JML motion and granting Lubke JML regarding medical certification under the FMLA; 3) excluding evidence of Lubke's prior disciplinary problems; 4) determining the measure of damages for Lubke's lost insurance benefits; and 5) not offsetting the amount of Lubke's retirement plan payout from his award of back pay. We address each issue in turn.

A. Serious health condition

The logical first question for analysis is whether Lubke's leave qualified for FMLA protection. FMLA assures unpaid leave for family members who must care for relatives with a "serious health condition." The City argues that the district court erred in denying the City's JML regarding Lubke's failure to present legally sufficient evidence that his wife had an FMLA "serious health condition" over the Y2K weekend.

This court reviews de novo a district court's ruling on a JML, applying the same legal standard used by the district court. Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir.2002). A JML should only be granted if "a party has been fully heard by the jury on a given issue, and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue." Flowers v. S. Reg'l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir.2001). Although our review is de novo, the "standard of review with respect to a jury verdict is especially deferential." Brown v. Bryan County, Okla., 219 F.3d 450, 456 (5th Cir. 2000).

The FMLA defines a "serious health condition" 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). Department of Labor ("DOL") regulations go into elaborate detail, setting out five types of conditions that can qualify as continuing treatment by a health care provider. 29 C.F.R. § 825.114(a)(2). Only one of these arguably applies in the instant case:

(2) Continuing treatment by a health care provider. 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, or by a nurse or physician's assistant under direct supervision of a health care provider;

(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

29 C.F.R. § 825.114(a)(2)(iii).2

Lubke presented extensive evidence at trial regarding his wife's "serious health condition." Both he and his wife testified about her chronic back problems, as did Mrs. Lubke's coworker and supervisor. Mrs. Lubke's physician, Dr. Pulliam, testified that she experienced chronic but episodic back problems for which he prescribed medications. Medical records introduced at trial corroborated that Dr. Pulliam examined and treated Mrs. Lubke's back condition for nearly a decade, during which he prescribed forty medications, including muscle relaxers, anti-inflammatories, sleep medication, and narcotic pain medications. This evidence was legally sufficient for a jury to find a chronic condition under § 825.114(a)(2)(iii).

The City objects that because discovery violations resulted in the exclusion from trial of Dr. Pulliam's formal expert opinion, Lubke's evidence was insufficient as a matter of law. While we agree that the existence of an FMLA-covered serious health condition will often necessitate confirmation by means of an expert medical diagnosis, the testimony just mentioned allowed the jury reasonably to infer that Mrs. Lubke indeed suffered from recurring, chronic back pain as defined by this regulation. The City misreads Stiefel v. Allied Domecq Spirits & Wine U.S.A. Inc., 184 F.Supp.2d 886 (W.D.Ark.2002), the only case it cites as...

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