* Pursuantto 5TH CIR. R. 47.5,the court has determined thatthis opinion should

not be published and is not precedent except under the limited circumstances set forth

in 5TH CIR. R. 47.5.4.

1

REVISED MAY 15, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20033

MARILYN FORD-EVANS

Plaintiff-Appellant

v.

UNITED SPACE ALLIANCE LLC

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, DENNIS, and ELROD, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Marilyn Ford-Evans (“Ford-Evans”) worked in one of

the Defendant United Space Alliance’s (“USA”) facilities as a flight crew

equipment processor. An equipment processor is involved in the preparation of

equipment for space-flight, which encompasses a variety of duties, such as

assembling cushions, sewing and folding clothes, fitting clothing on astronauts,

and cleaning water bottles. During her tenure at the company, she had a history

of problems with her voice. Prior to the incident at issue in this case, she had

United States Court of Appeals

Fifth Circuit

F I L E D

May 14, 2009

Charles R. Fulbruge III

Clerk
2

worked for ten months without the use of her voice; instead, she used pencil and

paper to communicate with co-workers. On July 1, 2003, Ford-Evans had a

reoccurrence of her voice problems and began a paid medical/short-term

disability leave of absence. She submitted medical certification to USA’s leave

administrator, CIGNA. She did not set a definite return date. 

Ford-Evans initially saw Dr. Guzman for treatment. After an examination,

Guzman released her and referred her to Dr. Stasney, a specialist on voice

disorders.Ford-Evans could not schedule her first appointment with Dr. Stasney

until August 22, 2003, when she saw Dr. Stasney for a two-hour appointment.

Unbeknownst to Ford-Evans at that time, on August 20, 2003, Angela Wallace,

a CIGNA case-manager, had sent an email to USA’s personnel manager Peter

Sellers stating that Ford-Evans had produced no evidence of any disability other

than problems with her voice, and could therefore be released to return to work.

In her report, Wallace stated that she had several communications with Dr.

Guzman, and according to Wallace, Dr. Guzman had released Ford-Evans to

work because talking was not a required part of her occupation. 

Based on the Wallace letter, Sellers sent a letter to Ford-Evans on August

21, 2003 notifying Ford-Evans that CIGNA was not extending her claim for paid

leave beyond August 19, 2003. Sellers advised Ford-Evans that she had three

business days from the receipt of letter to either “(1) report for return-to-work

processing at the USA Health Services Office, (2) provide a request to return to

work with reasonable accommodations, or (3) provide satisfactory evidence to the

USA Health Services Office that you were still unable to return to work.” USA’s

“Leaves of Absence” policy describes the three-day deadline as follows: “Any

employee who fails to return to work within 3 days of the expiration of their

leave will be considered to have voluntarily resigned their employment with

USA unless he or she presents satisfactory evidence that it was impossible to
3

return or has obtained an extension prior to the end of the 3-day period.”

Within three days after the receipt of the letter, on August 25, 2003, FordEvans reported to USA’s Health Services Office and met with the Health

Services Administrator Laniel Vawter. Ford-Evans stated that she was ready

to return to work if accommodations were made; she said that she would “have

returned to work if [she] had been allowed to have voice rest and no exposure to

chemicals.” Vawter requested Ford-Evans first obtain a return-to-work

certification. Ford-Evans executed a release allowing Vawter to get the

necessary certification from Dr. Stasney concerning her ability to return to work.

Ford-Evans contacted Dr. Stasney’s office over the next two days but was

unable to obtain a certification in time. She therefore obtained a return-to-work

release from Dr. Guzman on August 27, 2003. In this release, Dr. Guzman

indicated that Ford-Evans was under his care for chronic laryngitis from March

17, 2003 to July 31, 2003 but she had “sufficiently recovered to be able to return

to regular duty as of August 19, 2003 (As long as she is able to be on voice rest).”

Ford-Evans alleges USA received this release but then requested that FordEvans obtain documentation from her treating doctor, Dr. Stasney. Ford-Evans

did not submit any further documentation prior to the expiration of the threeday period. 

USA then terminated Ford-Evans on August 28, 2003 for failing to abide

by the leave policy. At that point, she had been on leave for approximately eight

weeks from July 1, 2003 to August 28, 2003. After her termination, Dr. Stasney

faxed a letter to Vawter. In this fax, he noted that Dr. Guzman referred FordEvans to him for evaluation and treatment and that he had recommended FordEvans to have complete voice-rest for two weeks to be followed by limited voice

use, close supervision of a speech therapist, and no exposure to chemicals. Dr.

Stasney noted in a follow-up letter to USA that “[f]or some individuals, daily
4

exposure to chemicals causes respiratory tract disorders. Therefore the best

choice for Ms. Ford-Evans and her employer would be our previously stated

recommendations.” Dr. Stasney released Ford-Evans to work as long as his

recommendations were followed. At the time of her leave, Ford-Evans worked

in the cushion preparation lab, which had the presence of certain chemicals,

such as Methylethylketone and Kel-F 800.

Ford-Evans then appealed the termination decision to a Management

Review Board, presenting all of the documents from Dr. Stasney. The Review

Board upheld the decision to terminate Ford-Evans for failing to abide by

company policy because she did not return to work and she presented no

evidence of a medical condition that prevented her from returning to work. 

Ford-Evans filed suit against USA on August 20, 2004, alleging disability

discrimination and retaliation claims under the Americans with Disabilities Act

(“ADA”), interference and retaliation claims under the Family and Medical

Leave Act (“FMLA”), and a pendent Texas law claim of slander. USA sought

summary judgment on all claims, which the district court granted. The district

court specifically granted summary judgment on Ford-Evans’ FMLA interference

claim because it was insufficiently pleaded. Subsequently, Ford-Evans filed a

Motion to Alter or Amend the Judgment as USA did not move for summary

judgment on the FMLA interference claim, but the district court denied the

motion. 

Ford-Evans then appealed the summary judgment solely as to the FMLA

interference claim. We reversed in Ford-Evans v. Smith, 206 F. App’x 332 (5th

Cir. Nov. 6, 2006) (“Ford-Evans I”) (per curiam) (unpublished). In Ford-Evans

I, we concluded that summary judgment against Ford-Evans on her FMLA

interference claim was improper because she sufficiently pleaded a FMLA

interference claim even though “[i]tis true that the complaint contained a dearth
5

of factual details supporting Ford-Evans's FMLA interference claim.” We

remanded the FMLA interference claim to the district court for further

proceedings. In the district court, USA immediately filed a revised summary

judgment motion, which the court denied. The case proceeded to trial. After the

plaintiff rested her case, USA filed a Rule 50(a) motion for a directed verdict.

The district court granted the motion and ruled for USA because “Ford-Evans

was able and willing to return to work, she was no longer suffering from a

serious health condition that prevented her from performing the functions of her

position, and her entitlement to FMLA leave ended. As such, USA did not

interfere with Ford-Evans’ rights under FMLA . . .” Ford-Evans now appeals.

Standard of Review

“We review de novo a district court's ruling on a motion for judgment as

a matter of law. . . . Under this standard, we will affirm a directed verdict only

if, viewing the evidence presented at trial in the light most favorable to the

non-movant, there is no legally sufficient evidentiary basis for a reasonable jury

to enter a contrary verdict.” Tharling v. City of Port Lavaca, 329 F.3d 422, 426

(5th Cir. 2003) (internal quotation omitted). “[I]t is an elementary proposition,

and the supporting cases too numerous to cite, that this court may affirm the

district court's judgment on any grounds supported by the record.” United States

ex rel. Farmer v. City of Houston, 523 F.3d 333, 338 n.8 (5th Cir. 2008). 

Analysis

The defendant-appellee USA contends for the firsttime on appealthatthe

plaintiff has not made a prima facie case for interference with FMLA rights

because she never established any entitlement to rights under the FMLA. To

make a prima facie case for interference with FMLA rights, a plaintiff mustfirst

demonstrate that her leave was protected under the FMLA. See, e.g., Mauder v.

Metro. Transit Authority of Harris County, Tex., 446 F.3d 574, 580 (5th Cir.
6

2006); Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004);

Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). USA

contends thatthe plaintiff did not make this showing because she never suffered

from a “serious health condition”that prevented her from working, and therefore

her leave was never entitled to protection under the FMLA. See 29 U.S.C.

§ 2612(a)(1)(D); Oswalt v. Sara Lee Corp., 74 F.3d 91, 92 (5th Cir. 1996). 

This argument USA now presents on appeal is different from the USA’s

argument in its motion for a Rule 50 judgment urged before the district court.

Before the district court, USA argued that because Ford-Evans did not present

evidence that she suffered from a “serious health condition” after August 19th,

she was not entitled to continued FMLA leave after August 19th. Sellers stated

repeatedly in sworn testimony thatFord-Evans had been placed on FMLA leave.

USA also referenced these statements in its briefs to the district court. Now USA

argues that Ford-Evans was never entitled to FMLA leave because she did not

present any evidence of a “serious health condition,” and therefore cannot pursue

a claim of an interference with FMLA rights. See Mauder, 446 F.3d at 580;

Haley, 391 F.3d at 649; Bocalbos, 162 F.3d at 383. 

Thus, before we consider the merits of this new argument on appeal, we

must first address sua sponte whether USA waived its argument or is now

estopped from presenting the argument. 

Both Supreme Court and Fifth Circuit case-law support our permitting the

appellees to raise arguments on appeal not considered by the district court. The

Supreme Court has specifically allowed statutory arguments not presented to the

district court that support the affirmance of the district court’s judgment. See
1

In Gregory v. Missouri Pacific R. Co., 32 F.3d 160, 164-65 (5th Cir. 1994), we

stated, in dicta, that appellees cannot raise an argument on appeal that was not

presented to the district court; however, we precluded the appellee’s argument in

Gregory because it was ultimately inconsistent with the appellee’s arguments before

the district court. See id. at 164 n.12 (distinguishing the case from the Supreme

Court’s potentially controlling decision in Schweiker by concluding that the appellee

in Schweiker raised a “new contention rather than one that was inconsistent with the

appellees’ position in the district court.” (emphasis in original)) (citing Schweiker, 457

U.S. at 584-85 & n.24); see also id. at 167 (Johnson, J., dissenting) (reading the

majority decision as concluding that appellee “is estopped from making such an

argument on the ground that he took an inconsistent position in the district court.”).

The preclusion of appellee’s inconsistent arguments, as Judge Johnson noted, is

properly considered under an estoppel rubric, which is discussed in the next section.

7

Schweiker v. Hogan, 457 U.S. 569, 585 & n.24 (1982).1 Here, the appellee, like

the appellee in Schweiker, is arguing that the judgment below is compelled by

the governing statute. Likewise, we can now permit the appellee to raise its new

statutory argument on appeal for the first time. Permitting the appellee to raise

such an argument on appeal for the firsttime is consistent with controlling caselaw. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999);

Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (“The prevailing party may,

of course, assert in a reviewing court any ground in support of his judgment,

whether or not that ground was relied upon or even considered by the trial

court.”); United States v. Am. Ry. Express Co., 265 U.S. 425, 436 (1924) (“[I]t is

. . . settled that the appellee may, without taking a cross-appeal, urge in support

of a decree any matter appearing in the record, although his argument may

involve an attack upon the reasoning of the lower court or an insistence upon

matter overlooked or ignored by it.”); Commercial Nat’l Bank in Shreveport v.

Parsons, 144 F.2d 231, 241 (5th Cir. 1944) (considering argument for affirmance

ignored by the district court even though interveners, and not appellees

themselves, raised the argument on appeal). Moreover, we have indicated that
2 This rule does not apply if the appellee is “attack[ing] the decree with a view

either to enlarging his own rights thereunder or of lessening the rights of his

adversary.” El Paso Natural Gas Co., 526 U.S. at 479. The appellee is not attempting

to “modify” the judgment so as to increase or decrease the parties’ rights but is only

requesting this court to affirm the district court’s full dismissal of the claim on

different grounds. See id. at 480 n.3 (citing Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 119 & n. 14 (1985)); Ayers v. United States, 750 F.2d 449, 457 (5th Cir.

1985). This limitation therefore does not apply to this case.

Admittedly, sister circuit courts are split on whether, as a general principle, an

appellee’s failure to present an argument to the district court constitutes a waiver of

that argument on appeal. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 391 n.1

(7th Cir. 2007) (noting and declining to resolve a conflict among Seventh Circuit

decisions as to this issue); compare Kromnick v. School Dist. of Philadelphia, 739 F.2d

894, 899 n.4 (3d Cir. 1984) (applying waiver of argument to appellees if the appellees

did not present the argument to the district court) with Leary v. Daeschner, 228 F.3d

729, 741 n.7 (6th Cir. 2000) (“[Appellant] cites cases for the proposition that appellants

who do not raise an argument on appeal waive that argument, but he cites no such

cases suggesting the same is true for appellees. Indeed, this court can affirm the

district court on any basis supported by the record.”); see also Cherry Hill Vineyard,

LLC v. Baldacci, 505 F.3d 28, 32 (1st Cir. 2007) (noting in dicta that the appellees,

unlike appellants, do not waive arguments by presenting novel theories for affirming

the district court’s judgmentfor the firsttime on appeal). For the reasons stated above,

we conclude that Supreme Court and Fifth Circuit case-law supports our decision to

consider the appellee’s argument in this case.

8

we will accept appellee’s arguments for affirming the district court’s judgment

raised for the first time on appeal if they are fully briefed by both sides. See

Maryland Cas. Co. v. State Bank & Trust Co., 425 F.2d 979, 982 (5th Cir. 1970).

Here, both parties discuss the dispositive issue of whether Ford-Evans suffered

from a “serious health condition” eligible for FMLA protection. The appellee’s

argument supports a straight-forward affirmance of the district court’s

judgment. For these reasons, we do not consider USA’s new argument to be

waived.2

Nor do we find USA’s argument barred by judicial estoppel. The fact that

the defendant may have adopted an inconsistent position below does not

inherently estop it from raising this new argument on appeal. A Court of
9

Appeals “may raise judicial estoppel sua sponte in ‘especially egregious case[s]

wherein a party has successfully asserted a directly contrary position.’” Beall v.

United States, 467 F.3d 864, 870 (5th Cir. 2006) (citing United States ex rel Am.

Bank v. C.I.T. Constr. Inc. of Tex., 944 F.2d 253, 258 (5th Cir.1991)) (emphasis

added). In New Hampshire v. Maine, the Supreme Court listed three factors in

determining whether judicial estoppel applies: (1) “First, a party’s later position

must be ‘clearly inconsistent’ with its earlier position”; (2) “Second, courts

regularly inquire whether the party has succeeded in persuading a court to

acceptthat party’s earlier position, so thatjudicial acceptance of an inconsistent

position in a later proceeding would create ‘the perception that either the first

or the second court was misled,’” and (3) “A third consideration is whether the

party seeking to assert an inconsistent position would derive an unfair

advantage or impose an unfair detriment on the opposing party if not estopped.”

532 U.S. 742, 750-51 (2001). Based on the first factor, the defendant’s

inconsistent position on appeal is not “directly” nor “clearly” inconsistent with

its position before the district court. If we adopted USA’s position on appeal that

Ford-Evans did not present any evidence of a “serious medical condition” at any

material time, this would be fully consistent with the thrust of USA’s legal

argument before the district courtthat Ford-Evans did not present any evidence

of a “serious medical condition” after August 19th. Moreover, under the second

factor, the district court did not rely on its acceptance of the appellee’s

representation that Ford-Evans was entitled to FMLA leave before August 19th

to reach its conclusion; instead it solely relied on the fact that she was not

suffering from a “serious medical condition” after August 19th. See Hopkins v.

Cornerstone America, 545 F.3d 338, 347-48 & n.2 (5th Cir. 2008) (“[T]he previous

court must have accepted the party’s earlier position.”) (emphasis added). To put

it another way, our adoption of USA’s position on appeal would not render our
10

decision directly nor clearly inconsistent with the district court’s opinion. See

U.S. ex rel Am. Bank, 944 F.2d at 258 (citing with approval, Teledyne Industries,

Inc. v. National Labor Relations Board, 911 F.2d 1214, 1217-18, 1217 n. 3 (6th

Cir.1990), which held that the “purpose of judicial estoppel . . . is designed to

prevent parties from contradicting a prior court determination, not

themselves.”). The final factor also favors USA. The plaintiff had the burden at

all times to show her statutory entitlement to FMLA leave and to present

evidence of a “serious medical condition” so as to establish a prima facie case for

a FMLA interference claim. See Mauder, 446F.3d at 580; Haley, 391F.3d at 649;

Bocalbos, 162 F.3d at 383. Even after presenting her case fully at trial and

briefing it on appeal, the plaintiff did not fulfill this aspect of the FMLA’s prima

facie case. Allowing the defendant to assert this new argument challenging

whether the record establishes a necessary element ofthe prima facie case would

merely return the plaintiff to her original burden to present facts that

establishes her entitlementto FMLA leave and protection. See In re Ark-La-Tex

Timber Co., Inc., 482 F.3d 319, 332 (5th Cir. 2007) (“[Permitting the appellee to

raise its new argument] will only place the parties in the position they should

have occupied . . .”). Moreover, because the plaintiff never requested judicial

estoppel and because this is not an “egregious” case, we decline to apply judicial

estoppel sua sponte. 

Likewise, we also decline to apply sua sponte equitable estoppel to

preclude the USA’s new appellate arguments. In this circuit, equitable estoppel

can also apply to the application of FMLA leave. See Minard v. ITC Deltacom

Commc’ns, Inc., 447 F.3d 352, 359 & n.36 (5th Cir. 2006) (applying equitable

estoppel to prevent defendant from changing positions on whether valid FMLA

leave was ever granted); see also Duty v. Norton-Alcoa Proppants, 293 F.3d 481,
3 We leave open the possibility that we may decide to apply equitable estoppel

sua sponte in a future case.

11

494 (8th Cir. 2002). While there is a circuit conflict over whether equitable

estoppel can be pleaded for the first time on appeal, compare My Pie Int’l, Inc.

v. Debould, Inc., 687 F.2d 919, 924 (7th Cir. 1982) (declining to allow equitable

estoppel pleaded for the first time on appeal), with Irwin v. West End Dev. Co.,

481 F.2d 34, 39 (10th Cir. 1973) (allowing the application of equitable estoppel

pleaded for the first time on appeal), the party asserting equitable estoppel, at

the very least, usually asserts the argument at some stage in the proceedings

and alleges the necessary elements for equitable estoppel. See, e.g., Huseman v.

Icicle Seafoods, Inc., 471 F.3d 1116, 1122 (9th Cir. 2006); Marks v. Newcourt

Credit Group, Inc., 342 F.3d 444, 456 (6th Cir. 2003); see also F.D.I.C. v. Royal

Park No. 14, Ltd., 2 F.3d 637, 641 (5th Cir. 1993) (implying that Rule 8 requires

the pleading of estoppel that is part of the plaintiff’s affirmative case). The

plaintiff did not plead the elements for equitable estoppel. Even assuming

arguendo we could sua sponte apply the principles of equitable estoppel,3the

record does not support its application. Ford-Evans, in testimony, specifically

stated:

[COUNSEL:] Ms. Ford-Evans, prior to August 22, 2003, did you receive

any notice from anyone at USA or Cigna that your leave was protected by

FMLA? 

[Objection raised and overruled.]

[FORD-EVANS:] No, I did not. 

[COUNSEL:] Did anyone at USA or Cigna advise you or notify you that

FMLA may provide you rights and protections relating to a request for

medical certification from a treating doctor?
12

[FORD-EVANS:] No, they did not. 

We have stated previously that the defendant-employer must have actually

represented to the plaintiff-employee that her leave was covered and/or that she

was protected by the FMLA in order to equitably estop the defendant from

arguing in court that FMLA does not specifically cover the plaintiff-employee

and/or her leave. See Minard, 447 F.3d at 359. Even assuming arguendo that

we can apply equitable estoppel sua sponte, equitable estoppel does not apply

because USA and CIGNA did not make any representations to Ford-Evans that

her leave was protected by FMLA during the time ofthe relevant events atissue.

Accordingly, we are not barred from considering USA’s new argument on

appealthatFord-Evans failed to establish at any materialtime that she suffered

from a “serious health condition” and she is therefore ineligible for FMLA leave

and protection. 

Ford-Evans never presented sufficient evidence that she was eligible for

FMLA leave; thus, she cannot sustain her claim. An employee is eligible for

FMLA leave if the employee 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)(1)(D); see also Oswalt, 74 F.3d at 92. Ford-Evans only presents

evidence for one health condition that allegedly justifies her FMLA leave:

chronic laryngitis, which causes her to temporarily lose her voice. However,

Ford-Evans admitted in testimony that she was able to do the essential

functions of her position at all material times and that she had previously

worked for ten months without the use of her voice. 

Ford-Evans presents evidence that the health condition restricted her

ability to function in only two ways: she needed voice rest and she should not

come in contact with chemicals because contact with chemicals may cause
13

respiratory tract disorders in some individuals. Neither restriction contradicts

her statement that she was always, at all material times, able to perform the

functions of her position. Both doctors released her to return to work. She had

previously worked without her voice for tenth months. Though she alleges

evidence of dangerous chemicals in the cushion lab, she also testified that,

within the scope of her position, she also worked outside of the cushion lab, so

the presence of those dangerous chemicals does not preclude her from working

in other areas. Moreover, Dr. Stasney noted that Ford-Evans should not be

further exposed to chemicals because “[f]or some individuals, daily exposure to

chemicals causes respiratory tract disorders.” Dr. Stasney does not identify FordEvans as one of those individuals, but merely concludes that an avoidance of

chemicals is “the best choice for Ms. Ford-Evans and her employer.” Dr.

Stasney’s precautionary recommendation does not imply that all and any contact

with chemicals prevents Ford-Evans from performing the functions of her job;

furthermore, even if exposure to chemicals may cause further voice-loss, voiceloss does not prevent Ford-Evans from performing the functions of her job. At

most, the voice rest and the precautionary recommendation to avoid chemicals

is only a mild or moderate impairment. Even with a mild to moderate

impairment, an employee is still considered able to perform the functions of her

position for FMLA purposes. See Price v. Marathon Cheese Corp., 119 F.3d 330,

335 (5th Cir. 1997). Furthermore, we have said that FMLA coverage applies

only to health conditions that cause or threaten to cause “incapacitation” and

where absence from work is “necessary.” Mauder, 446 F.3d at 581-82; Murray

v. Red Kap Inds., Inc., 124 F.3d 695, 698 (5th Cir. 1997); Price, 119 F.3d at 335.

There is no evidence in the record that her health condition, chronic laryngitis,

is a “serious health condition” that rendered her incapacitated and unable to

work at any time. Consequently, Ford-Evans fails to establish a valid claim for
14

relief under the FMLA. For these reasons, we now AFFIRM the district court’s

judgment.