United States Court of Appeals,
Fifth Circuit.
No. 96-60884
Summary Calendar.
Mary MURRAY, Plaintiff-Appellant,
v.
RED KAP INDUSTRIES, INC., Defendant-Appellee.
Oct. 9, 1997.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Mary Murray sued Red Kap Industries, Inc. ("Red Kap") for
violating the Family and Medical Leave Act of 1993 ("FMLA"), 29
U.S.C. § 2601 et seq., by discharging her after she had missed
eight days of work due to a respiratory tract infection. After
Murray presented her case in chief to the jury, Red Kap moved for
judgment as a matter of law pursuant to Rule 50(a) of the Federal
Rules of Civil Procedure. The district court found that Murray had
failed to produce sufficient proof that she suffered from a
"serious health condition" during the second week of her illness,
and thus granted the motion. We affirm.
I
Mary Murray worked as a machine operator for Red Kap for
eleven years, sewing pants. On Sunday, March 19, 1995, Murray
became ill with an upper and lower respiratory tract infection.
She did not go to work on Monday, and did not notify her
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supervisor, Mary Beth West, that she was ill. On Tuesday, Murray
visited the emergency room at a local hospital where a doctor gave
her antibiotics and instructed her to contact her personal
physician, Dr. William Rogers. Murray then scheduled an
appointment with Dr. Rogers on Friday. Also that afternoon, Murray
informed West of her visit to the emergency room and that she had
a doctor's appointment in a few days.
On Friday, Dr. Rogers prescribed a corticosteroid to
supplement Murray's antibiotics and asked her to call his office
the following Monday. Dr. Rogers then provided Murray with a work
release excusing her absence from Monday, March 20 to Friday, March
24 ("the first week") but wrote on the release that she would be
able to return to work on Monday, March 27. Immediately after
seeing Dr. Rogers, Murray visited Red Kap and gave the work release
to West. However, contrary to Dr. Rogers' written statement that
she could resume employment on Monday, Murray told West that she
would only return to Red Kap when she no longer felt sick.
On Monday, March 27, Murray contacted Dr. Rogers' office and
informed someone there that she was "feeling better." However,
Murray did not return to work. Rather, she remained at home from
Monday through Thursday of that week ("the second week"). During
this period, she did not notify West of her condition or seek
further medical assistance. On Wednesday, Red Kap terminated
Murray for violating employee policy by being absent at work for
three consecutive days without notifying her supervisor. On
Friday, a relative called Murray and mentioned that she had heard
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that Murray had quit her job. Shortly afterwards, Murray went to
Red Kap to talk to West and learned that she had been fired.
Subsequently, Murray sued Red Kap, alleging that she suffered
from a serious medical condition from March 19 through March 29
that rendered her unable to work, and that Red Kap violated the
FMLA when it terminated her. Red Kap then moved for summary
judgment, which the district court denied. At trial, Dr. Rogers
confirmed that Murray had a lower and upper respiratory tract
infection and testified that a one-week period of convalescence
after her illness would be reasonable. However, during her
testimony, Murray conceded that she had not contacted West during
the second week until Friday, that she knew it was her
responsibility to tell West if she had to miss work, and that she
was aware that three consecutive unexplained absences would
normally lead to dismissal.
After hearing and seeing Murray's evidence, the district court
found that Murray had failed to show that she had a "serious health
condition" during the second week of her illness, and granted Red
Kap's motion for judgment as a matter of law.
II
On appeal, Murray contends that the district court erred in
granting judgment as a matter of law on her FMLA claims in light of
the substantial evidence in the record demonstrating that she
suffered from a serious health condition during the second week.
We review de novo the district court's decision to grant a motion
for judgment as a matter of law pursuant to Rule 50(a), applying
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the same legal standard the court used below. RTC v. Cramer, 6
F.3d 1102, 1109 (5th Cir.1993).
A motion for judgment as a matter of law is appropriate if,
after considering the evidence presented and viewing all reasonable
inferences in the light most favorable to the nonmovant, the facts
and inferences point so strongly in favor of the movant that a
rational jury could not arrive at a contrary verdict. London v.
MAC Corp. of Am., 44 F.3d 316, 318 (5th Cir.), cert. denied, ---
U.S. ----, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995). If there is
substantial evidence of such quality and weight that reasonable and
fair-minded jurors might reach a different conclusion, then we will
conclude that the district court erred in granting the motion. Id.
The FMLA attempts to balance the needs of sick employees
against the demands of the workplace by allowing certain employees
to take as much as twelve weeks medical leave when they have a
"serious health condition that makes [them] unable to perform the
functions of [their] position ..." and then, following a qualified
absence, to return to the same position or an alternate position
with equivalent pay, benefits, and working conditions.1 29 U.S.C.
§ 2612(a)(1); 29 C.F.R. § 825.100. In order to qualify for
protection under the FMLA, the employee must provide the employer
with proper notice of his intention to take leave. 29 C.F.R. §
825.302.
1
Red Kap does not dispute that Murray was covered by the FMLA
and that it had to comply with the act. See generally 29 U.S.C. §
2611 (describing what kind of employees are eligible for leave
under the FMLA and what kind of employers must abide by the act's
requirements).
4
Under authority granted by the FMLA in 29 U.S.C. § 2654, the
Department of Labor ("DOL") has issued final regulations for the
act.2 Murray contends she had a "serious health condition" as
defined by the particular DOL regulation that deals with
"continuing treatment by a health care provider." This regulation
states:
(a) For purposes of FMLA, "serious health condition" entitling
an employee to FMLA leave means an illness, injury,
impairment, or physical or mental condition that involves:
...
(2) Continuing treatment by a health care provider. A serious
health condition involving continuing treatment by a health
care provider includes ...:
(i) A period of incapacity (i.e., inability to work, attend
school or perform regular other daily activities due to the
serious health condition, treatment therefor, or recovery
therefrom) of more than three consecutive calendar days and
any subsequent treatment or period of incapacity relating to
the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by
a nurse or physician's assistant under direct supervision of
a health care provider, or by a provider of health care
services (e.g., physical therapist) under orders of, or on
referral by, a health care provider; or
(B) Treatment by a health care provider on at least one
occasion which results in a regimen of continuing treatment
under the supervision of the health care provider.
29 C.F.R. § 825.114. Thus, under the regulation, where an employee
alleges that he has a serious health condition involving continuing
treatment by a health care provider, he must first demonstrate a
period of incapacity (i.e., the inability to work) for at least
2
Murray's FMLA claims arose more than a month after the final
regulations began to apply. Murray became sick on March 19, 1995;
the final regulations took effect on February 6, 1995.
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four consecutive days. Next, he must show that he received
subsequent treatment or had a period of incapacity, in which he was
either seen at least two times by a health care provider (or a
qualified provider of health care services) or obtained a regimen
of continuing treatment under the supervision of a health care
provider.
In applying this regulatory test, we note that the district
court assumed that Murray was unable to work during the first week,
that is, she had a period of incapacity from March 20 to March 24
(and, on appeal, Red Kap appears to concede the point). The
preliminary question, then, becomes whether this initial period of
incapacity includes the period from the first day of the second
week to the day Murray was fired, that is, the period from March 27
to March 29 (or, alternatively, whether the period from the first
day of the second week to the day Murray was fired is a separate
and independent period of incapacity). If the answer to this
question is affirmative, then the issue is whether the relevant
period of incapacity meets the requirements of either §
825.114(a)(2)(i)(A) or (B). If the answer to the question is
negative, then the issue is whether Murray received subsequent
treatment satisfying the requirements of § 825.114(a)(2)(i)(A) or
(B).
As a threshold matter, Murray can defeat Red Kap's motion for
judgment as a matter of law if she presents proof that March 27 to
March 29 was at least part of a period of incapacity for her or, in
other words, that she was unable to work during these three days.
6
In this regard, Murray points to her testimony as well as that of
Dr. Rogers. For instance, Murray testified that Dr. Rogers told
her that "he didn't want me working in no plant long as I" was "out
of breath and winded...." Murray also stated that she informed
West that Dr. Rogers told her not to work as long as she was weak,
and that she advised West on Friday, March 24 that "if I was still
sick[,] I wasn't coming to work." Finally, Murray claimed that she
was convalescing at home from Monday to Thursday of the second
week. However, this evidence is all immaterial, conclusory, and/or
hearsay. Also, it is highly doubtful that Dr. Rogers told Murray
not to return to work as long as she felt weak given the fact that
he gave her a written release stating that she could return to Red
Kap the following business day. Moreover, Murray's supposed
comment to West on Friday of the first week about not coming to
work while she was unwell seems somewhat beside the point.
According to Murray herself, West (presumably because of Dr.
Rogers' statement in the work release) "was steady telling me, I'll
see you Monday." In short, Murray's testimony here does little, if
anything, to help show that her absence from work during the period
from March 27 to March 29 was necessary. See Brannon v. OshKosh
B'Gosh, Inc., 897 F.Supp. 1028, 1037 (M.D.Tenn.1995) (holding that
plaintiff's testimony that she was "too sick to work" is
insufficient to show that she was unable to return to work).
Next, Murray notes that Dr. Rogers testified that she "was
having significant respiratory problems" and "needed to be off work
until she was no longer short of breath." Murray also points out
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that Dr. Rogers stated that it would have been "reasonable" for her
to have taken a week off for convalescence following her Friday,
March 24 appointment, and that Dr. Rogers, at an appointment the
Tuesday after the second week, wrote in his notes that his
"IMPRESSION" was that Murray had a "[l]ower respiratory tract
infection, almost had pneumonia which has cleared." However, this
evidence is largely irrelevant in light of the fact that, at the
Friday appointment, Dr. Rogers gave Murray a work release stating
that she "is able to return to work ... on 3/27/95," that is, on
Monday of the second week. See Price v. Marathon Cheese Corp., 119
F.3d 330, 335 (5th Cir.1997) (holding that, given doctor's
description of plaintiff's manifestation of carpal tunnel syndrome
as a "mild to moderate" impairment and his testimony that her
condition was not severe enough to "tak[e] her off work
altogether," plaintiff's alleged disability did not rise to the
level of a "serious health condition" for purposes of the FMLA).
In addition, Murray called Dr. Rogers on that Monday and told him
that she was feeling better, and, at no time during the second
week, did Murray seek any additional medical treatment. Lastly,
Murray did not bother to contact West to tell her why she was
staying home until Friday of the second week. During this period,
West had no information about why Murray was absent, other than
Murray's statement the previous Friday about not coming in until
she felt well. In fact, the only reason that Murray even went into
work on Friday was because she thought that she had been fired.
Given this evidence, we determine that no rational jury would
8
believe that Murray was unable to work during the period from March
27 to March 29. See Price, 119 F.3d at 335-36 (affirming district
court's grant of judgment as a matter of law in favor of employer
where there was a dearth of evidence that fired employee with
manifestation of carpal tunnel syndrome was actually incapacitated
during her absence from work). Hence, March 27 to March 29 was not
a period of incapacity or part of such a period.
The next issue, then, is whether Murray can offer proof that
she received "subsequent treatment" during the period from March 27
to March 29 that meets the requirements of either §
825.114(a)(2)(i)(A) or (B). She cannot. The record is clear that,
during the second week, Murray did not have any treatment from a
health care provider or qualified provider of health care services.
In fact, she did not even return to Dr. Rogers for a follow-up
visit until April 4, 1995.
Therefore, we discern no way that a rational jury could
determine that Murray had a serious health condition entitling her
to FMLA leave during the period from March 27 to March 29.
Accordingly, the district court did not err in granting Red Kap's
motion for judgment as a matter of law pursuant to Rule 50(a).
III
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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