REVISED, November 11, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-11396
_____________________
JIMMY BOYD,
Plaintiff-Appellant,
versus
STATE FARM INSURANCE COMPANIES;
ET AL.,
Defendants,
STATE FARM INSURANCE COMPANIES,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
November 3, 1998
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Jimmy Boyd appeals a summary judgment on his failure to
promote claim and termination claim brought under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Family
Medical Leave Act. Finding no error, we affirm.
I
Boyd, a black male, began employment at State Farm Insurance
Company in 1990 in the Administrative Services Department. Terry
Vice managed the Department. Boyd was hired by his immediate
supervisor Bruce Sutton, who selected Boyd over a Caucasian
applicant. Over the course of Boyd’s employment, either or both
Sutton and Vice approved Boyd’s numerous raises and promotions. By
1994, Boyd had been promoted to Administrative Services Supervisor
III.
There was at least one rough ripple on these otherwise calm
waters, however. At a 1993 social event, Sutton called Boyd
“Buckwheat.” Boyd took offense to the remark and complained to
Vice and Sutton. Vice privately disciplined Sutton for the remark
who apologized to Boyd.
Whether this incident was isolated or whether it presaged
trouble to come is an issue in this appeal. In December of 1994,
Sutton gave Boyd his annual Performance Planning and Review
Evaluation (“PPR”), which was not as favorable as Boyd’s past
reviews. Included in the PPR were skills that Boyd needed to
improve to be eligible for the promotion to Supervisor IV, a
promotion that Boyd had earlier sought unsuccessfully.
On June 1, 1995, Boyd submitted a written complaint to Sutton
for failure to promote him to Supervisor IV. Sutton and Vice
refused to promote Boyd on the grounds that he was not qualified
for the position. Consequently, on August 14, 1995, Boyd
complained to the EEOC that State Farm had not promoted him because
of his race. Two weeks after Boyd’s EEOC complaint, State Farm
promoted Delores Clemons, a black woman, to Supervisor IV.
Before these events occurred, however, on August 8, 1995, Boyd
had requested a medical leave of absence from work. Boyd contended
2
that he suffered from stress and anxiety. Following its policies
under the Family Medical Leave Act, as set forth in its handbook,
State Farm approved Boyd’s requested leave of absence. Boyd, who
had a copy of the handbook, remained absent from work for over five
weeks.
During his absence, in response to State Farm’s numerous
requests for medical certification as required by the handbook,
Boyd submitted a total of three letters written by Drs. Pascoe and
Colley, two psychologists who treated him. Each time Boyd
responded, State Farm informed him that the letters were
insufficient to support his leave of absence and that he should
return to work immediately.
On September 6, 1995, State Farm sent Boyd a written request
for medical certification, which also informed Boyd that his
absence from work had now been classified as Absent Without
Official Leave (“AWOL”) and that Boyd would be subject to
termination unless he provided immediate documentation of a medical
need for his absence. Boyd submitted a second note from Dr. Colley
on September 11, 1995, which again failed to indicate that his
leave of absence was medically required. Consequently, on
September 15, 1995, approximately nine days after its written
request for documentation, State Farm terminated Boyd. Sutton took
no part in the action. At the time of his termination, Boyd had
been classified as AWOL for ten days. Shortly before and after
State Farm fired Boyd, it had also terminated Lisa Bitters, a
3
Caucasian female, and Johnny Kirby, a Caucasian male, for being
AWOL for only three and two days, respectively.
Contending that State Farm refused to promote him and
eventually terminated him because of his race, Boyd brought suit
under Title VII. Boyd also alleged that his termination violated
the FMLA because his absence was protected leave under the Act.
The district court granted summary judgment for State Farm on each
of Boyd’s claims. In granting summary judgment on the FMLA claim,
the district court elected to disregard Boyd’s expert affidavit.
On April 2, 1998, Boyd filed this appeal.
II
We review the district court’s grant of summary judgment de
novo. Walton v. Bisco Industries, 119 F.3d 368, 370 (5th Cir.
1997). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
III
A
Title VII prohibits employers from discriminating against
employees on the basis of race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a). We continue to adhere to the
evidentiary framework of Title VII claims as established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
4
(1973). In the context of summary judgment, a substantial conflict
in evidence must exist to create a jury question on the issue of
discrimination. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 983
(5th Cir. 1996)(en banc). Therefore, a plaintiff can defeat a
motion for summary judgment only if the evidence, taken as a whole:
(1) creates a fact issue as to whether each of the employer’s
stated reasons was what actually motivated the employer; and (2)
creates a reasonable inference that race was a determinative factor
in the actions of which the plaintiff complains. Walton, 119 F.3d
at 370; Rhodes, 75 F.3d at 994.
B
(1)
Boyd contends that the district court erred in granting
summary judgment on his Title VII failure to promote claim. We
assume, as did the district court, that Boyd established a prima
facie case on this claim. Our immediate inquiry is whether State
Farm met its burden of offering a legitimate reason for its adverse
employment action. In its motion for summary judgment, State Farm
asserted that Boyd was not qualified for promotion. State Farm
produced Boyd’s 1994 PPR, which stated that Boyd had only achieved
seven of ten performance goals, that he was on schedule to achieve
an eighth goal, but that he would not achieve the last two goals.
The PPR further stated that Boyd needed to make his work system
more productive and improve on organization, communication, and
project planning. Finally, State Farm emphasized that Boyd never
5
challenged the accuracy of the PPR, but indeed indicated his
agreement with it by signing the PPR on the date it was completed.
In opposition, Boyd argued that he only had the burden of
creating a triable issue of pretext. Boyd asserted that at a 1993
social gathering Sutton called him “Buckwheat,” and on some other
unspecified occasion had also called him a “Porch Monkey.” Relying
solely on his affidavit testimony, Boyd further contended that
someone told him “State Farm does not hire many people like
you . . . you should be happy just to be here.” However, Boyd
identified neither who made this remark, nor when. Finally, Boyd
concluded that the timing of his 1994 PPR created a triable issue
of pretext because it occurred only after he complained of the
alleged racist remarks.
The district court granted summary judgment in favor of State
Farm. The district court held that even if the “Porch Monkey” and
“Buckwheat” comments were assumed to be racist, the comments were
merely stray remarks and did not imply discrimination. The
district court rejected the remaining comments as self-serving and
unsupported. Regarding the 1994 PPR, the district court reasoned
that the “same actor” principle rebutted the inference that Sutton
would discriminate against Boyd because Sutton was the same
individual who initially hired Boyd.
(2)
Because Boyd focused solely on proving pretext and offered no
evidence from which a reasonable fact-finder could infer that race
6
motivated State Farm’s decision not to promote him, the ultimate
issue for this court is whether Boyd’s failure to promote claim is
within the Rhodes subcategory of cases where “[a] jury may be able
to infer discriminatory intent . . . solely from substantial
evidence that the employer’s proffered reasons are false.” Rhodes,
75 F.3d at 994. We conclude that Boyd’s pretext evidence is
insufficient to carry the day.
During Boyd’s five-year tenure at State Farm, Sutton referred
to Boyd as “Buckwheat”1 only once. The district court properly
categorized this isolated utterance as a stray remark from which no
reasonable fact-finder could infer race discrimination. The mere
utterance of a racial epithet is not indicia of discrimination
under Title VII. Anderson v. Douglas & Lomason Co., Inc., 26 F.3d
1277, 1295 (5th Cir. 1994).2 Second, the alleged “Porch Monkey”
1
"Buckwheat” is the stereotypical black character from the
“Our Gang” or “Little Rascals” television series. However, in the
context of employment discrimination law, the term “Buckwheat” is
generally considered to be a racial slur or epithet. See Daniels
v. Essex Group, Inc., 937 F.2d 1264, 1266 (7th Cir. 1991); Dunbar
v. Landis Plastics, Inc., 996 F. Supp. 174, 184 (N.D. N.Y. 1998);
Lenoir v. Roll Coater, Inc., 841 F. Supp. 1457, 1461 (N.D. Ind.
1992); Harris v. International Paper Co., 765 F. Supp. 1509, 1518
(D. Maine 1991).
2
See also, Brown v. CSC Logic, Inc., 82 F.3d 651, 656 (5th
Cir. 1996) (specific comments over a lengthy period of time
sufficient to establish discrimination); Ray v. Tandem Computers,
63 F.3d 429, 435 (5th Cir. 1995) (single comment too remote to
infer discrimination); Guthrie v. Tifco Industries, 941 F.2d 374,
379 (5th Cir. 1991)(comments made at least a year prior to demotion
insufficient to infer discrimination); Daniels, 937 F.2d at 1266
(discrimination prevalent where employee was nicknamed “Buckwheat”
for first ten years of employment and subjected to other racial
taunts).
7
comment and the other remarks proffered by Boyd are similarly
inadequate to meet his burden. There is no evidence of a causal
connection between these isolated remarks and the decision not to
promote Boyd. Absent a causal link between the references and the
conduct complained of, such epithets become stray remarks that
cannot support a discrimination verdict. Ray v. Tandem Computers,
63 F.3d 429, 434 (5th Cir. 1995). Finally, the timing of Boyd’s
1994 PPR, approximately one year after Boyd complained of Sutton’s
“Buckwheat” comment, provides no proof from which a reasonable
juror could infer discrimination in the failure to promote claim.3
Timing standing alone is not sufficient absent other evidence of
pretext. Swanson v. General Services Admin., 110 F.3d 1180, 1188
n.3 (5th Cir. 1997); Armstrong v. City of Dallas, 997 F.2d 62, 67
(5th Cir. 1993).
In the end, Boyd’s summary judgment evidence has fallen
considerably short of the mark. State Farm’s uncontroverted
evidence on its refusal to promote Boyd is sufficient to negate the
existence of any material fact on the issue of its discriminatory
motive. Wallace v. Texas Tech University, 80 F.3d 1042, 1048 (5th
Cir. 1996). The district court did not err in entering summary
judgment against Boyd on his failure to promote claim.
3
The district court applied the “same actor” inference to
dispose of this issue. Our disposal of Boyd’s failure to promote
claim under Rhodes and its progeny forecloses the necessity of a
second analysis of the case under the “same actor” inference.
Brown, 82 F.3d at 658 n.25.
8
C
(1)
Boyd next contends that the district court erred in granting
summary judgment on his Title VII discriminatory termination claim.
Again, we will assume that Boyd established a prima facie case of
discrimination. We thus turn to determine whether Boyd
successfully rebutted State Farm’s proffered reason for his
termination.4
State Farm argued that it terminated Boyd because Boyd had
been AWOL from work for ten days and had failed to prove that his
absence was medically necessary under its FMLA policy. State Farm
offered the affidavit testimony of the human resources personnel
who made the decision to fire Boyd, and the September 6, 1995
notice it sent Boyd informing him of his AWOL status. In response,
Boyd asserted that State Farm’s proffered reason was pretext
because initially he had been out on sick leave before his status
was changed to AWOL. Boyd further maintained that other Caucasian
employees were also out on sick leave but not terminated for being
AWOL. The district court rejected both arguments and granted State
Farm’s motion for summary judgment.
(2)
We have previously recognized that proof that similarly-
situated employees outside of plaintiff’s protected class were
4
We apply the same analysis to Boyd’s termination claim as
applied to Boyd’s failure to promote claim. See Walton, 119 F.3d
at 370; Rhodes, 75 F.3d at 994.
9
treated differently may assist in establishing the prima facie
case. Walton, 119 F.3d at 372; Nieto v. L&H Packing Co., 108 F.3d
621, 623 (5th Cir. 1997). However, State Farm has produced
unrefuted evidence that other Caucasian employees were also
terminated for their AWOL status. Under these circumstances, State
Farm’s decision to terminate Boyd for his AWOL status does not
raise a material question of fact that Boyd’s termination was
motivated by racial animus. The district court’s grant of summary
judgment on Boyd’s discriminatory termination claim is therefore
affirmed.
IV
A
(1)
Boyd’s final argument is that the district court erred in
granting summary judgment on his claim under the Family Medical
Leave Act. State Farm moved for summary judgment on the grounds
that Boyd’s absence from work was not protected under the FMLA
because he suffered from no serious health condition at the time he
requested leave, as required by the Act. State Farm offered three
letters from Boyd’s treating physicians, Drs. Pascoe and Colley.
State Farm also offered the deposition testimony of these doctors.
None of their letters supported Boyd’s claim that his absence,
purportedly due to the stress and anxiety of his job, constituted
protected leave under the FMLA. Further, both physicians testified
in their depositions that Boyd was not incapacitated within the
10
meaning of the Act. Boyd responded that the affidavit testimony of
his expert witness, Dr. Emerson Emory, created a genuine issue of
fact as to whether he suffered a serious health condition under the
FMLA.5 State Farm objected to the affidavit on the grounds that it
came two years “after-the-fact” and contradicted the diagnosis of
the physicians who treated Boyd at the time of his termination.
The district court characterized the affidavit as “vague and
conclusory” because it contained no details as to how, why, or to
what extent Boyd was allegedly incapacitated. The district court
acknowledged that the expert’s statements were made two years after
Boyd’s termination and reflected no professional opinion formed
contemporaneously with the events at issue. The district court
further stated that the affidavit provided no foundation for Dr.
Emory’s conclusions and spoke only in the most general of terms.
In short, the district court excluded the affidavit.
On appeal, Boyd argues that Dr. Emory’s affidavit could not be
excluded on the grounds assigned because Fed.R.Evid. 705 permitted
Dr. Emory to give his opinion without prior disclosure of the
underlying facts and data. Boyd contends that the district court
5
Dr. Emory’s affidavit, in pertinent part, stated:
“[B]ased upon my review of the records and my examination
of Mr. Boyd, it is my professional opinion that Mr.
Boyd’s health condition rendered him unable to perform
his job at State Farm, and in fact left him disabled.
Continued work at State Farm would have increased his
health problems. In my professional opinion, the only
solution to Mr. Boyd’s medical condition would have been
a leave of absence from State Farm. At a minimum, Mr.
Boyd required a leave of absence to obtain treatment from
his condition.”
11
was required to permit Dr. Emory to supplement his opinion if the
court deemed the disclosure of facts, data and reasons necessary to
decide the motion for summary judgment.
(2)
With respect to expert testimony offered in the summary
judgment context, the trial court has broad discretion to rule on
the admissibility of the expert’s evidence and its ruling must be
sustained unless manifestly erroneous. Christophersen v. Allied-
Signal Co., 939 F.2d 1106, 1109 (5th Cir. 1991) (en banc). We have
previously rejected the argument that, in the context of summary
judgment, Fed.R.Evid. 705 does not require an expert’s affidavit to
contain factual support for the opinion expressed therein.
Slaughter v. Southern Talc Co., 919 F.2d 304, 307 n.4 (5th Cir.
1990). For the purposes of summary judgment under Fed.R.Civ.P. 56
(e), an expert affidavit must include materials on which the expert
based his opinion, as well as an indication of the reasoning
process underlying the opinion.
It is against this backdrop that we decide the issue before
us. We need not address State Farm’s argument that Dr. Emory’s
opinion is “after-the-fact,” because notwithstanding when the
opinion was made, it is insufficient to create an issue of fact as
to whether Boyd suffered a serious health condition under the FMLA.
The opinion offers nothing more than the unsupported conclusion
that Boyd’s medical condition left him “unable to perform his job.”
It is a well established rule that without more than his
12
credentials and a subjective opinion, an expert’s testimony that a
medical condition simply “is so.” is not admissible. Hayter v.
City of Mount Vernon, No. 98-40071, slip op. at 5597 (5th Cir.
Sept. 21, 1998) (citations omitted). The district court did not
commit manifest error in rejecting the affidavit.
B
(1)
Boyd also contends that his termination violated the FMLA
because State Farm failed to wait fifteen days after its written
request for medical certification to terminate him. Boyd based his
claim on 29 C.F.R. § 825.305(b), which states in pertinent part:
“...[T]he employee must provide the requested
certification to the employer within the time frame
requested by the employer (which must allow at least 15
calendar days after the employer’s [written] request),
unless it is not practicable under the particular
circumstances to do so despite the employee’s diligent
good faith efforts.”
State Farm counters that because Boyd knew of the medical
certification requirement and had made numerous attempts to comply
with the FMLA, the fifteen-day allowance was not required. The
district court agreed and held that since Boyd had answered State
Farm’s written request for medical certification the issue of
whether Boyd’s termination in less than fifteen days violated the
FMLA was moot.
(2)
We agree that a fifteen-day allowance is not required in this
case. State Farm provided Boyd a copy of its FMLA policy, which he
13
reviewed immediately before requesting leave from work. Moreover,
State Farm urged Boyd several times by phone to comply with the
FMLA medical certification requirement. In response to these
requests Boyd submitted a total of three doctors’ notes, none of
which diagnosed his absence as medically required. Thus, it is
clear that before Boyd was terminated, he had been given more than
adequate notice of the FMLA certification requirement and had made
several attempts to comply with the Act. Next, State Farm sent its
written notice, to which Boyd responded with yet another
physician’s note on September 11, 1995. This note also failed
support Boyd’s claim that his absence from work was medically
necessary.
The regulation at issue, 29 C.F.R. 825.305(b), simply provides
that an employee must be allowed a minimum of fifteen days to
respond to an employer’s written request for medical certification.
Here, Boyd submitted the medical information in approximately five
days after he received State Farm’s written request, and
consequently, did not need the full fifteen days in which to
respond. In such situations, we hold as a matter of law, that when
an employee submits medical information in response to an
employer’s written request, 29 C.F.R. 825.305(b) is no longer
implicated and the employer is not required to wait fifteen days
before taking action on the employee’s request for medical leave.
The district court appropriately regarded the issue as moot under
the circumstances presented here. The district court’s grant of
14
summary judgment on the FMLA claim in favor of State Farm is
AFFIRMED.
V
For the aforementioned reasons, the judgment of the district
court is hereby
A F F I R M E D.
15