* 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this opinion should not be published and is not precedent except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.

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United States Court of Appeals

Fifth Circuit

FILED

August 13, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 07-20109

Summary Calendar

STEPHEN WAYNE KIRK,

Plaintiff - Appellant,

versus

REED TOOL COMPANY,

Defendant - Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

(4:05-CV-1128)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Stephen Wayne Kirk contests both a jury verdict in favor of

Reed Tool and the denial of a new-trial motion. He claims the jury

was improperly instructed with respect to his Family Medical Leave

Act (FMLA) claim. 

Kirk, a Reed Tool employee, suffers from chronic Hepatitis C.

From 2001 to 2002, while employed at Reed Tool, he was granted

several medical leaves-of-absence due to his condition. According
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to Kirk, in November 2002, he began to receive a more aggressive

treatment regime which caused him miss a number of work days. In

April 2003, Reed Tool terminated Kirk’s employment for numerous

unexcused absences from the period of 1 to 15 April 2003. Kirk

contends such absences were due to his illness. 

In April 2005, Kirk filed this action, claiming interference

with his rights under FMLA. Kirk contends Reed Tool unlawfully

terminated him by: refusing to provide to him necessary sick-leave

paperwork; and not allowing him to obtain the requisite medical

certification within the 15-day minimum time period prescribed by

FMLA. See 29 U.S.C. § 2613(a). This action was tried in November

2006, and the jury found in favor of Reed Tool. Kirk’s December

2006 new-trial motion was denied.

Kirk’s sole contention is that a jury instruction stated an

incorrect statement of law under the FMLA and accordingly, imposed

on him a higher burden of proof. Jury instruction challenges are

generally reviewed for an abuse of discretion. Brown v. Parker

Drilling Offshore Corp., 410 F.3d 166, 179 (5th Cir. 2005).

Reversible error occurs “only if the charge as a whole creates a

substantial doubt as to whether the jury has been properly guided

in its deliberations”. C.P. Interests, Inc. v. Cal. Pools, Inc.,

238 F.3d 690, 700 (5th Cir. 2001). Here, however, as discussed

infra, while Kirk may have objected to the original jury charge, he

did not object to the supplemental charge. Therefore, our review
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is only for plain error. FED. R. CIV. P. 51(d); e.g., Resendez v.

Wal-Mart Stores, Inc., 180 Fed. App’x 543, 543 (5th Cir. 2006);

United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994). Under

this standard, this court has the discretion to reverse the jury

verdict only if a clear or obvious error affected Kirk’s

substantial rights. Taita Chem. Co., Ltd. v. Westlake Styrene,

LP., 351 F.3d 663, 668 (5th Cir. 2003) (internal citation and

quotation marks omitted).

Under the FMLA, an eligible employee is entitled to a total of

12 weeks of leave a year for, inter alia, 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). A

serious health condition is any injury or illness that involves an

inability to work for more than three consecutive days. See 29

C.F.R. 825.114(a)(2)(i). When, as here, the leave is

unforeseeable, the employee bears the burden of providing notice to

the employer of the need for medical leave, and must do so as soon

as practicable, or “no more than one or two working days of

learning of the need for leave, except in extraordinary

circumstances where such notice is not feasible”. 29 C.F.R. §

825.303(a). To prevail on a FMLA claim, Kirk must prove: (1) he

was an eligible employee; (2) Reed Tool interfered with his rights

under the FMLA; and (3) he was prejudiced by the interference. 29

U.S.C. §§ 2615, 2617(a)(1). 
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Jury Charge Question No. 2, which Kirk objected to at the

charge conference, asked the jury to determine whether “Mr. Kirk’s

serious health condition [was] the cause of his missing work from

April 1 ... through ... 15, 2003.” Kirk objected that this

question gave him a higher burden of proof; it required the jury to

find he was absent due to a serious health condition for 15 full

days, rather than the minimum three consecutive days under the

FMLA. 

During deliberations, the jury sent a note asking the court

whether it must find Kirk was out “every single day” due to his

condition. The court, after conferring with both parties in

formulating a response, offered the following supplemental

instruction:

You may answer Question number 2 ‘yes’ if you

find that Mr. Kirk’s serious health condition

caused him to miss more than three days of

work from April 1, 2003 through April 15,

2003; however, if you find that his serious

health condition was the cause of his missing

some but not all of the days of work between

April 1, 2003, and April 15, 2003, then also

state in your answer to Question number 2 the

dates, i.e., April blank, blank, and blank,

that his serious health condition caused him

to miss from work.

The supplemental instruction was not objected to by Kirk; in fact,

his counsel stated he “like[d] it”. Accordingly, as discussed

supra, the supplemental instruction is reviewed for only plain

error. 
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Even assuming the original jury instruction was in error, the

clarifying instruction was proper statement of the law as provided

in 29 C.F.R. 825.114(a)(2)(i) and cured any prejudice; it gave the

jury an opportunity to specify any absences related to Kirk’s

health condition, and any that were not. Had the jury found Kirk’s

medical condition caused his absence from work for at least three

consecutive days, Kirk would have established his eligibility for

leave under the FMLA. Here, however, the jury found that none of

Kirk’s absences were due to his health problems. Kirk has not

shown reversible plain error. See Taita Chem. Co., 351 F.3d at

668.

AFFIRMED