* Pursuant to5 TH C IR

. R. 47.5, thecourt hasdetermined that thisopinion should not be published and is not precedent except under the limited circumstancesset forth in 5 TH C IR. 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 Clerk2

worked for ten months without the use ofher voice; instead, she used pencil and paper to communicate with co-workers. On July 1, 2003, Ford-Evans had a
reoc currence 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 sawDr. Guzman for treatment. After an examination, Guzman released her and referred her to Dr. Stasney, a specialist on voice disorders. Ford-Evanscould notschedule 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 Sellersstating that Ford-Evans had produced noevidenceofany disability other than problemswith her voice, and could therefore be released to return towork. 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 theWallace 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 reasonableaccommo dations, or (3) provide satisfactory evidence to the USA Health Services Office that you were still unable to return towork.” 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 impo ssible to3

return or has obtained an extension prior to the end of the 3-day period.” Within three days after the receipt ofthe 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 ifaccommodations were made; she said that she would “have returned towork 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 al lowing 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 toobtain 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-Evanswas under his care for chronic laryngitis from March 17, 2003 toJuly 31, 2003 but she had “sufficiently recovered to be able to return to regular duty as ofAugust 19, 2003 (As long as she is able to be on voice rest).” Ford-Evans alleges U SA received this release but then requested that FordEvansobtain 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 toAugust 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, daily4

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. F ord-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 w ork 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 theAmericanswith DisabilitiesAct (“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 summaryjudgment solely as to the FMLA interference claim. We reversed in Ford-Evans v. Smith, 206 F. App’x 332 (5th Cir. Nov. 6, 200

6 ) (“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 interferenceclaim even though “[i]t istrue that the complaint contained a dearth5

of f actual 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 thecourt 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 thefunctionsofher 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 reasonablejury to enter a contrary verdict.” T harling 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 c ourt may affirm the district court'sjudgment on any groundssupported by the record.” United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 338 n.8 (5th Cir. 2008). Analysis Thedefendant-appellee USA contendsfor thefirst timeon appeal that the 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 makea prima faciecasefor interferencewith FMLA rights, a plaintiffmust first 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. N at’l W. Life Ins. Co., 1 62 F.3d 379, 383 (5th Cir. 1998). USA contends that the plaintiffdid not make thisshowing becauseshe 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 that Ford-Evans had been placed on FMLA leave. USA alsoreferenced thesestatements in its briefstothedistrict court. NowUSA argues that Ford-Evans was never entitled to FMLA leave because she did not present any evidenceofa “serious health condition,” and thereforecannot 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 SupremeCourt hasspecifical ly allowed statutoryarguments not presented tothe district court that support the affirmance of the district court’s judgment. See1 In Gregory v. Missouri Pacific R. Co., 32 F.3d 160, 164-65 (5th Cir. 1994), we

stated, in dicta, that appellees c annot 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 “newcontention 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 thegoverning 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 thefirst time isconsistentwith controlling caselaw. See El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999); Dandridgev. 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 c ourt even though interveners, and not appellees themselves, raised the argument on appeal). Moreover, we have indicated that2 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 T rans 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 Humphriesv. 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. ofPhiladelphia, 739 F.2d 894, 899 n.4 (3d Cir. 1984) (applying waiver ofargument 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] citescasesfor 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.”); s ee 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 thedistrict court’sjudgment for the first time on appeal). For the reasonsstated 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 ofwhether 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, w e do not consider USA’s new argument to be waived. 2 Nor dowe find USA’s argument barred byjudicial 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 of9

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. ofTex., 944 F.2d 253, 258 (5th Cir.1991)) (emphasis added). In New Hampshire v. Maine, the Supreme Court listed three factors in determining whetherjudicial estoppel applies: (1) “First, a party’s later position
must be ‘clearly inconsistent’ with its earlier position”; (2) “Second, c ourts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, sothatjudicial acceptanceofan 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 theopposing party ifnot 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. Ifwe adopted USA’s position on appeal that Ford-Evans did not present any evidence ofa “serious medical condition” at any material time, this would be fully consistent with the thrust of USA’s legal argument before thedistrict court that Ford-Evansdid not present any evidence ofa “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-Evanswas entitled to FMLA leave beforeAugust 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. CornerstoneAmerica, 545 F.3d 338, 347-48& n.2 (5th Cir. 2008) (“[T]he previous court must haveaccepted the party’searlier position.”) (emphasisadded). Toput it another way, our adoption of USA’s position on appeal would not render our10

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, TeledyneIndustries, Inc. v. National Labor Relations Board, 911 F.2d 1214, 1217-18, 1217 n. 3 (6th Cir.1990), which held that the “purpose ofjudicial 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 ofa “serious medical condition” soas toestablish a prima faciecase for
a FMLA interferenceclaim. SeeMauder, 446F.3d at 580; Haley, 391 F.3d at 649; Bocalbos, 162 F.3d at 383. Even after presenting her case fully at trial and briefing it on appeal, the plaintiffdid not fulfill this aspect ofthe FMLA’s prima facie case. Allowing the defendant to assert this new argument challenging whether the record establishesa necessary element ofthe prima faciecase would merely return the plaintiff to her original burden to present facts that establishes her entitlement to FMLA leave and protection. SeeIn reArk-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 applyjudicial estoppel sua sponte

. Likewise, we also decline to apply sua sponte equitable estoppel to preclude the USA’s newappellate 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); seealso 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 s ome 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 w

e could sua sponte apply the principles of equitable estoppel, 3 the 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 tothe plaintiff-employee that her leavewascovered 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 plaintif f-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 leavewas protected by FMLA during the timeofthe relevant eventsat issue. Accordingly, we are not barred from considering USA’s newargument on appeal that Ford-Evansfailed toestablish at any material timethatshesuffered 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 ofthe position ofsuch employee.” 29 U.S.C. § 2612(a)(1)(D); seealso 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 w ays: she needed voice rest and she should not
come in contact with chemicals because c ontact with chemicals may cause13

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 chemicalscauses 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 thatall and anycontact with chemicals prevents Ford-Evans from performing the functions of her job; furthermore, even ifexposure 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 ofher position for FMLA purposes. See Pricev. Marathon CheeseCorp., 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 for14

relief under the FMLA. For these reasons, we nowAFFIRM the district court’s judgment.