IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30417

Summary Calendar

MICHELLE CALDERONE

Plaintiff – Appellant

v.

TARC

Defendant – Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-6687

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Michelle Calderone appeals the district court’s order granting summary 

judgment in favor of her former employer, TARC, on various claims under the

Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), 

and Louisiana Employment Discrimination Law (LEDL). For reasons that 

follow, we AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 25, 2016

Lyle W. Cayce

Clerk

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I.

Calderone was a Program Director at TARC, an organization providing 

services to individuals with disabilities. On December 19, 2011, she was 

involved in an automobile accident. The initial diagnosis was a chip fracture 

to her ankle. Over the next nine days, Calderone took twenty hours of sick 

leave and eight hours of annual leave. She then returned to work.

On January 25, 2012, she was further diagnosed with a crack in her

sternum. Her physician advised bed rest. With permission from TARC’s CEO,

Kathleen Abels, Calderone instead opted to work from home.

About a month later, Calderone proposed working twenty hours at the 

office and twenty hours at home. Abels agreed to this arrangement. Calderone 

submitted a doctor’s note authorizing her to work the split schedule. The note 

specified “no heavy lifting, steep stair climbing, or uneven landscape, travel at 

patient’s discretion,” and further warned that “sternum fracture related 

symptoms may be present for [six] months or more.” 

A couple of weeks after this split schedule began, Abels presented a 

document to Calderone that designated her modified schedule as “temporary” 

and “in effect until March 31, 2012.” Calderone did not sign the document.

Instead, the next day Calderone submitted a written response to several 

aspects of the document, including it characterizing her as “disabled,” the 

revocation of the modified work schedule, and the failure to inform her of

FMLA rights. Calderone did not believe she was disabled and requested that 

she not be labeled as such, but Abels denied her request. 

After securing a release from her doctor, Calderone resumed a full-time 

schedule on April 1. She did not request any leave during April or otherwise 

object to resuming her previous schedule.

Over seven months after her return to a full-time schedule, on November 

12, Calderone submitted her resignation. In the resignation, she stated that 

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“[o]ver the last year and a half, it has come to my awareness and heartfelt 

decision that I cannot successfully continue to evaluate and direct my 

programs under the current CEO’s supervision style and micro-managing.”

The letter made no mention of any issues related to her leave, the earlier 

injuries from the car accident, or the timing of her return to work from those 

injuries.

II.

Calderone challenges the district court’s order granting summary 

judgment to TARC. We review a grant of a summary judgment de novo. Kipps 

v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). Summary judgment is 

appropriate “if 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.” Fed. 

R. Civ. P. 56.

A.

Calderone first challenges the dismissal of her FMLA claim. She 

contends TARC failed to notify her that she was entitled to leave under the 

Act. In support of this position, Calderone cites 29 C.F.R. § 825.300(b)(1), 

which states that when an employee requests FMLA leave, or “when the 

employer acquires knowledge that an employee's leave may be for an FMLA–

qualifying reason, the employer must notify the employee” of her FMLA 

eligibility. Section 825.300(e) specifies that failure to provide notice as required 

may constitute “interference with, restraint, or denial of the exercise of an 

employee's FMLA rights.”

Assuming she had a right to individualized FMLA notice,1 Calderone’s 

FMLA claim fails because she cannot identify any harm resulting from the lack 

 

1 Calderone alleges that the twenty hours of sick leave and eight hours of annual leave 

she took between December 19 and December 28 triggered TARC’s duty to inform her of her 

FMLA eligibility.

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of notice. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)

(requiring a showing of prejudice to prevail on a FMLA interference claim). 

She acknowledged that she was aware of her FMLA rights, but did not want 

to take FMLA leave because no one could adequately fill in for her and she was 

satisfied as long as she was allowed to work from home, which she was. 

B.

Calderone also contends the district court erred in rejecting her ADA

claims. She does not, however, challenge the district court’s rejection of her

hostile work environment claim. Similarly, Calderone has forfeited her 

constructive discharge claim by failing to provide any legal or factual analysis 

related to it in her initial brief. See Am. States Ins. Co. v. Bailey, 133 F.3d 363, 

372 (5th Cir. 1998). That leaves only her failure to accommodate claim under 

the ADA. Calderone contends TARC failed to accommodate her by not allowing 

her to continue the split schedule past March 2012.

Title I of the ADA prohibits an employer from discriminating against a 

qualified individual on the basis of a disability. 42 U.S.C. § 12112(a). 

Discrimination under the Act includes refusing to make reasonable 

accommodations to the known physical or mental limitations of a qualified 

individual. 42 U.S.C.A. § 12112(b)(5)(A). While the ADA provides a right to a 

reasonable accommodation, it does not provide a right to the employee's 

preferred accommodation. E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 

471 (5th Cir. 2009) (citing Hedrick v. Western Reserve Care System, 355 F.3d 

444, 457 (6th Cir. 2004)).

Calderone has not put forth any evidence that she was suffering from 

physical or mental limitations in April 2012 when she contends that TARC 

should have allowed her to continue to maintain a split schedule. Calderone 

has repeatedly denied being disabled and her doctor submitted a note stating 

that she was able to return to work. Moreover, considering Calderone was 

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accommodated after the split schedule ended, by being allowed to park near a 

door, there is no basis for concluding that TARC failed to engage in the 

interactive process. Finally, Calderone has not identified how any failure to 

accommodate damaged her in any way. As noted above, she resigned more 

than seventh months after returning to work for reasons that by her own 

description have nothing to do with her broken bones or any failure to 

accommodate them. We therefore affirm the district court’s granting of 

summary judgment on the ADA claims.

C.

This analysis also defeats Calderon’s state law claims because disability 

discrimination claims brought under the Louisiana statute are analyzed under 

the same framework as the ADA. See Thomas v. La. Casino Cruises, Inc., 886 

So.2d 468, 470 (La.Ct.App.2004).

The judgment of the district court is AFFIRMED.

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