IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50878

Summary Calendar

PHILLIP LOVIC BURNETTE, II,

Plaintiff - Appellant

v.

RATEGENIUS LOAN SERVICES, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:16-CV-577

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

In May 2016, Phillip Burnette filed a complaint in district court against 

his former employer, RateGenius Loan Services, alleging interference and 

retaliation under the Family and Medical Leave Act. The district court 

adopted the magistrate judge’s recommendation to dismiss both claims as 

frivolous under 28 U.S.C. § 1915(e)(2). Burnette filed a timely notice of appeal. 

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

November 23, 2016

Lyle W. Cayce

Clerk

 Case: 16-50878 Document: 00513771336 Page: 1 Date Filed: 11/23/2016
No. 16-50878

2

BACKGROUND

Burnette brought this suit pro se and was granted leave to proceed in 

forma pauperis. His suit was dismissed on the pleadings, so we accept the 

allegations of the complaint as true on appeal. See Watts v. Graves, 720 F.2d 

1416, 1419 (5th Cir. 1983). 

Burnette claimed that during the latter half of 2013 and while employed 

at RateGenius, he began experiencing dizziness and bouts of unconsciousness. 

No formal diagnosis was made at that time, but he discussed his condition with 

the vice president of his department. After that discussion, Burnette took 

several days off work for medical testing. 

In December 2013, Burnette had an accident in which he crashed his 

vehicle into a house. He alleges the crash occurred because a coughing spell

caused him to lose consciousness while driving. Burnette was not arrested, but 

the police began investigating the accident to determine whether he had been 

driving while intoxicated. When Burnette reported the accident to his 

employer, he said it was caused by a coughing spell. He did not mention the 

police investigation. The vice president to whom he reported the accident 

agreed Burnette could work from home to minimize the risks of his driving to 

and from work. Burnette was later charged and arrested for DWI in connection 

with the accident. The complaint contains no assertions about the result of the 

charges.

Burnette alleged that an ear, nose, and throat specialist named Jacob 

Minor diagnosed him with Syncope on April 29, 2014. The complaint says

Syncope is characterized by temporary bouts of unconsciousness caused by a 

fall in blood pressure. Burnette notified RateGenius of his diagnosis the day

after Dr. Minor allegedly informed him. On May 5, 2014, a human resources 

representative asked Burnette to provide a note from his doctor confirming the

diagnosis. The original complaint is silent as to whether Burnette did so. A 

 Case: 16-50878 Document: 00513771336 Page: 2 Date Filed: 11/23/2016
No. 16-50878

3

proposed amended complaint claims that Burnette mailed such a note to his 

employer after his termination and that it should have been received within 30

days of the request. The district court denied leave to amend. RateGenius 

terminated Burnette on May 19, 2014. Burnette claims his employer gave him 

two reasons: (1) failure to provide documentation of his diagnosis and (2) lying 

about the nature of his accident, citing the police investigation of a possible 

DWI. At the time of his termination, Burnette had been working remotely for 

four months. 

After his termination, Burnette filed suit under the Family and Medical 

Leave Act (“FMLA”). He claims RateGenius interfered with his right to take 

leave under the FMLA by failing to notify him of his right to do so. See 29 

U.S.C. § 2615(a). He also claims he was terminated in retaliation for notifying 

RateGenius of his potential FMLA-qualifying condition. The magistrate judge 

recommended both claims be dismissed as frivolous. The district court agreed 

and dismissed with prejudice. Burnette filed a timely appeal. 

DISCUSSION

Only one party is before us because RateGenius was never served. The 

magistrate judge reviewed the complaint and Burnette’s motion to proceed in 

forma pauperis, then determined the suit was frivolous. Service upon 

RateGenius was withheld until the district court determined whether the suit 

should be dismissed. The district court agreed with the magistrate judge’s 

recommendations. Our analysis will rely on the allegations in the original and 

proposed amended complaints. 

The court will dismiss a case in which the plaintiff is proceeding in forma 

pauperis if it determines the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A 

frivolous complaint “lacks an arguable basis in law or fact.” Allison v. Kyle, 66 

F.3d 71, 73 (5th Cir. 1995). “We review the dismissal of a frivolous complaint 

 Case: 16-50878 Document: 00513771336 Page: 3 Date Filed: 11/23/2016
No. 16-50878

4

for abuse of discretion.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999). 

An abuse of discretion occurs when the district court relies on erroneous 

findings of fact or conclusions of law or misapplies the law to the facts. Combs 

v. City of Huntington, Tex., 829 F.3d 388, 391 (5th Cir. 2016). 

Burnette alleges four points of error. First, he argues the district court 

erred by finding he does not satisfy the elements of an interference claim under 

the FMLA. He makes the same complaint about his retaliation claim. Third, 

he argues the district court erred by not permitting him to file an amended 

complaint. Finally, Burnette argues the district court erred by ordering that 

the dismissal of the complaint be with prejudice. 

a. Interference

The FMLA prohibits employers from “interfer[ing] with, restrain[ing], or 

deny[ing]” employees the right to take leave under its provisions. 29 U.S.C. 

§ 2615(a)(1). Burnette’s claim of interference in both the original and proposed 

amended complaints focuses on the events that began in April 2014, when he 

informed RateGenius that he had been diagnosed with a specific medical 

condition. He does not claim any interference occurred during the four-month 

period he was allowed to work from home. 

Burnette’s complaint stated that the interference started when his 

employer requested a note from his doctor but did not at that time inform him 

of his rights under the FMLA. Under federal regulations that are summarized 

in the complaint, the employer is to provide certain information when an 

employee begins the process of seeking FMLA leave. See 29 C.F.R. § 825.300. 

Burnette’s proposed amended complaint adds that he was unaware of the 

existence of the FMLA throughout his employment. 

The district court found Burnette’s claim for interference “lack[ed] an 

arguable basis in law or fact.” The district court concluded that even if the 

 Case: 16-50878 Document: 00513771336 Page: 4 Date Filed: 11/23/2016
No. 16-50878

5

employer failed to notify Burnette of his FMLA rights, there is no claim as to 

how that failure caused any monetary loss or loss in employment status. As 

the district court noted, the one specific injury Burnette alleged was this: “Had 

he been appropriately apprised of his leave options, Plaintiff could have 

planned and structured his leave time differently and accordingly, for example, 

moving closer to work so as not to have to drive to work.” The court concluded, 

“Plaintiff has failed to adequately plead he was prejudiced by Defendant’s 

failure to apprise him of his FMLA rights.” The proposed amended complaint 

goes further as to injury. There, Burnette claims he lost his entitlement to 12 

weeks of unpaid leave and also lost his job, which provided an income of at 

least $100,000 annually.

One difficulty raised by both complaints is that neither party at the time 

of these events is claimed to have discussed rights and duties under the FMLA. 

Burnette was not seeking leave, and RateGenius was not asking for 

information that would allow it to determine if the FMLA applied. Burnette 

states that he was not aware of the FMLA due to his employer’s failure to 

provide notice. There is no claim, though, that RateGenius failed to post the 

required notice to all employees about the Act. See 29 C.F.R. § 825.300(a). 

Instead, Burnette claims that when he informed his employer of the diagnosis, 

the response should have included notice of his rights.

Burnette’s failure to assert that he mentioned the FMLA is not fatal, as 

an employee does not need to refer specifically to the FMLA in seeking leave. 

A regulation provides that any “employee giving notice of the need for FMLA 

leave does not need to expressly assert rights under the Act or even mention 

the FMLA to meet his or her obligation to provide notice.” 29 C.F.R. § 

825.301(b). Yet nothing in the complaint indicates that Burnette wanted leave 

of any kind. The complaint asserts that RateGenius was allowing him to work 

 Case: 16-50878 Document: 00513771336 Page: 5 Date Filed: 11/23/2016
No. 16-50878

6

from home, and the complaint does not suggest Burnette or his employer in 

April was seeking to end that arrangement. 

Instead, what the complaint sets out is that after RateGenius was 

informed that Burnette had a specific medical diagnosis of the condition that 

had led the company to allow him to work from home for four months, it asked 

for proof. Burnette’s claim was only that he provided a note from the doctor 

after his termination. The complaint also claims that the employer believed he 

had not been truthful in describing the earlier automobile accident. Burnette 

explains why he did not need to inform RateGenius of the police investigation 

into possible impaired driving. He asserts that the employer’s reasons for his 

termination were pretexts for denying him rights under the FMLA.

Reviewing all of Burnette’s allegations, we find nothing beyond 

speculation that the reasons RateGenius gave him for his termination were 

simply masks for an FMLA violation. Speculation is insufficient. See Ashcroft 

v. Iqbal, 556 U.S. 662, 678–79 (2009). Complaints “demand more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678. 

Asking for proof of a medical condition that would have allowed an employee 

to continue to work from home, and a belief that an employee was hiding an 

alternative explanation for why he had a car accident, are not on their face 

suggestive of pretext. Whether RateGenius should have given Burnette more 

time to provide the doctor’s note or been more understanding of the reasons he 

did not reveal the police investigation are irrelevant to whether any 

discrimination occurred. RateGenius was entitled to terminate him so long as

— for purposes of this complaint — there was no discrimination against him 

under the FMLA. Nothing in the complaint suggests Burnette and the 

company were resolving whether he got leave, paid or unpaid. Instead, the 

issue was whether Burnette’s special arrangement of working from home 

would continue. 

 Case: 16-50878 Document: 00513771336 Page: 6 Date Filed: 11/23/2016
No. 16-50878

7

We conclude that Burnette has not alleged facts that would plausibly 

support there was a causal connection between what he claims occurred and 

interference with an employee’s FMLA rights. It is true that the district court’s 

decision to dismiss was solely on the basis of an absence of a claim of prejudice. 

We can affirm, though, “on any basis supported by the record.” Harper, 174 

F.3d at 719.

b. Retaliation

Burnette’s retaliation claim also was dismissed as frivolous. The 

retaliation allegedly occurred when RateGenuis terminated him in May of

2014 and told him it was because he had failed to provide requested 

documentation of his medical condition and had not been candid about what 

happened at the time of his December 2013 accident. The district court’s 

analysis was brief: “By Plaintiff’s own admission, he did not request — much 

less take — FMLA leave. As a result, he could not have been retaliated against 

on this basis.” 

Our previous discussion regarding the allegations of the complaint 

applies here as well. The complaint does not set out any facts that plausibly 

support that Burnette’s dismissal was related to a disagreement about leave 

of any kind. Dismissal was proper.

c. Permission to file an amended complaint

Burnette alleges the district court erred by denying his motion to file an 

amended complaint. Federal Rule of Civil Procedure 15 requires trial courts 

to freely grant leave to amend. See Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 

283 F.3d 282, 286 (5th Cir. 2002). Even so, the district court may deny leave 

to amend if it has a “substantial reason” to do so. Id. Futility of amendment 

is a substantial reason. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–

 Case: 16-50878 Document: 00513771336 Page: 7 Date Filed: 11/23/2016
No. 16-50878

8

73 (5th Cir. 2000). An amendment is futile if, after the amendment, the 

complaint would still “fail to state a claim upon which relief could be granted.” 

Id. at 873. 

The district court’s only stated reason for denying the amendment is that 

the original complaint was frivolous under the statute governing in forma 

pauperis proceedings. 28 U.S.C. § 1915(e)(2)(B)(i). That may be, but the issue 

is whether the proposed amended complaint was also frivolous. We have 

examined the proposed amended complaint and have noted its allegations in 

our prior analysis of whether dismissal was proper. Burnette does not make 

any assertions that can show a relationship between his termination and any 

potential FMLA violation. Refusing to allow the filing of an amended 

complaint was not error.

d. Dismissal with prejudice

Finally, Burnette claims the district court should not have dismissed his 

claims with prejudice without offering some explanation as to why a dismissal 

with prejudice was merited. “[D]ismissals as frivolous or malicious should be 

deemed to be dismissals with prejudice unless the district court specifically 

dismisses without prejudice.” Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 

1997) (en banc). In other words, the assumption is that the dismissal of a 

frivolous complaint under Section 1915 is one with prejudice, and the district 

court is under no obligation to explain itself. Here, the district court explicitly 

stated the dismissal of Burnette’s complaint was with prejudice, which 

“ensure[s] that judicial resources will not be wasted and that the meritorious 

claims may receive the timely attention and disposition warranted.” Id. at 

1505. We see no error.

AFFIRMED. 

 Case: 16-50878 Document: 00513771336 Page: 8 Date Filed: 11/23/2016