Opinion
CIVIL ACTION NO. 2:99CV110-D-B
March 20, 2002
OPINION GRANTING SUMMARY JUDGMENT
Presently, before the court is the Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Upon due consideration, the court finds the motion is well taken and shall be granted.
A. Factual and Procedural Background
The Plaintiff, David Bryan (Bryan), filed this cause of action pursuant to 29 U.S.C. § 2601, et. seq, commonly known as the Family Medical Leave Act (FMLA), against his former employer, the Defendant, BL Development Corp., d/b/a Grand Casino-Tunica (Grand Casino). In his complaint, Bryan asserts that he was demoted, retaliated against and constructively discharged in violation of the FMLA. He seeks lost income, benefits, liquidated damages, costs, and attorneys' fees. Bryan began working for the Grand Casino on April 8, 1996, as a slot technician at its property located in Tunica, Mississippi. On June 10, 1996, the Grand Casino promoted Bryan from slot technician to lead slot technician. In December 1996, Bryan was promoted to Director of Slot Maintenance.
On May 15, 1997, Bryan experienced an incident of chest pains while at work. As a result, a co-worker Steve Gay, transported Bryan to the hospital. He stayed in the hospital overnight and was discharged the next day. His physician diagnosed him with non-cardiac related chest pains. The discharge instructions indicated that Bryan should resume normal activity as tolerated. Nevertheless, Bryan did not return to work until May 20th.
When Bryan came back to work, his supervisor told him that he needed a release from his doctor. A release was faxed to the Grand Casino from Bryan's doctor and a nurse called on May 22nd to explain that Bryan was released for full duty and did not have a heart problem. On May 23rd, Bryan was counseled concerning his lack of communications about his absences.
On May 24th, Bryan had yet another episode of chest pains while at work. This time, an ambulance transported him to the hospital. He was treated in the emergency room and released that same evening. His doctor ordered him to wear a heart event monitor for thirty days. As a result of these tests, it was ultimately determined that Bryan had non-cardiac related chest pains due to stress and hypertension.
On May 25th, Bryan called his supervisor and reported that he would return to work on Monday, May 26th. On May 26th, Bryan's supervisor offered him the option of stepping down from his position as Director of Slot Maintenance and resuming his prior position as Lead Slot Technician or being dismissed. Bryan accepted the demotion. On November 20, 1997, Bryan quit his job. Bryan had no further episodes with chest pains after June, 1997, and there is no evidence that Bryan was ever prescribed any medication therapy for his condition.
Bryan filed this cause on May 27, 1999, asserting claims under the FMLA. Subsequently, Bryan's attorney withdrew and Bryan moved this court to proceed pro se in his case. The court granted that request on April 2, 2001, and the Grand Casino filed their motion for summary judgment on December 21, 2001. Bryan has not responded. The court notes that while it cannot grant summary judgment merely because there is no opposition to the motion, the court may accept the Grand Casino's version of the facts as undisputed and grant the motion if they make a prima facie showing of their entitlement to summary judgment. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 (5th Cir. 1995); Eversley v. Mbank Dallas, 843 F.2d 172, 173 (5th Cir. 1988).
B. Summary Judgment Standard
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986).
C. Claim Under FMLA
Under the FMLA, an eligible employee is entitled to twelve weeks of leave in a twelve month-period because of: (1) the birth of a child; (2) the adoption of a child; (3) to care for certain family members who have a serious health condition; or (4) if the employee has 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). An employee needs to provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA leave. See 29 C.F.R. § 825.302(c). It is undisputed that the Grand Casino is an employer that is covered by the FMLA and Bryan is an employee covered by the FMLA.
The issues are whether Bryan was entitled to take FMLA leave because of a "serious health condition" which made him unable to perform his job and whether he gave the Grand Casino notice of his intent to take leave under the FMLA. The court finds that Bryan's condition did not keep him from performing his job and he did not give the Grand Casino required notice. Accordingly, the Grand Casino is entitled to summary judgment as a matter of law.
1. Serious Health Condition
The statute defines a serious health condition as "an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). It is uncontroverted that Bryan spent one night in the hospital after his first attack. However, when the doctor released him, he was released without restrictions to return to work. Bryan does not allege in his deposition that any doctor ever told him that he could not to return to work. He does, however, assert that his doctor told him to "take it easy." The court finds that this does not constitute inability to perform one's job under 29 U.S.C. § 2611.
The plain language of the statute requires that the person seeking protection under FMLA be unable to perform the functions of his position. 29 U.S.C. § 2612(a)(1)(D). Consistent with this, courts have focused on the ability to work in determining whether a person is incapacitated for the purposes of the FMLA.
In Price v. Marathon, 119 F.3d 330 (5th Cir. 1997), the plaintiff alleged that she was entitled to leave under FMLA because she suffered from carpal tunnel syndrome. However, the plaintiff's "mild to moderate impairment" did not prevent her from going to work and she was able to perform all of her job functions. Id. at 335. In Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1037 (M.D.Tenn. 1995), the district court held that the plaintiff's testimony that she was "too sick to work" was insufficient to show that she was unable to return to work. The possibility that a person can work removes FMLA protection. See Murray v. Red Kap Industries, Inc., 124 F.3d 695, 699 (5th Cir. 1997) (finding plaintiff who suffered stress from managing father's probate estate could still perform the activities of daily living, was actually able to work, and was not incapacitated for the purposes of FMLA); see also Boyce v. New York City Mission Society, 963 F. Supp. 290, 299, (S.D.N.Y. 1997) (finding employee's alleged condition of shortness of breath and chest pains was not "serious health condition" covered by FMLA); Hodgens v. General Dynamics Corp., 963 F. Supp. 102, 106 (D.R.I. 1997) (finding plaintiff was not incapacitated where plaintiff could still perform the functions and duties of his job). Accordingly, the court finds that Bryan has failed to prove that he could not perform his job as required by the FMLA. The Grand Casino is entitled to summary judgment as a matter of law.
2. Notice Requirement
Notwithstanding the court's above findings, in the alternative, the court also finds that Bryan failed to give adequate notice of his intent to take leave under the FMLA. When the need for FMLA leave is foreseeable, an employee must provide his employer with no less than 30 days advance notice. Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 975 (5th Cir. 1998). When leave is unforeseeable, an employee should give notice to the employer of the need for FMLA leave as soon as possible under the facts and circumstances of the particular case. "It is expected that an employee will give notice to the employer within 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. In the case of a medical emergency requiring leave because of an employee's own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved." 29 C.F.R. § 825.303. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. Id. The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition. Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995).
It appears to the court, from the evidence submitted, that Bryan was off work from May 15th, the day he was taken to the hospital, until May 20th, the day he returned to work. He was again taken to the hospital on May 24th and returned to work on May 27th. It is unclear to the court how many, if any, of the days off were regularly scheduled off days. However, it is clear to the court that Bryan never gave any kind of notice that he would need time off from work. It appears that he just called his supervisor and told him what day he would be returning to work. Additionally, he told his supervisor that he was suffering from stress, an non-serious illness according to the FMLA. See Boyd v. State Farm Ins. Co., 158 F.3d 326, 331 (5th Cir. 1998) (Fifth Circuit affirmed the district court's holding that an employee's absence due to stress and anxiety, was not medically necessary and employee did not suffer from serious health condition); see also Cole v. Sisters of Charity, 79 F. Supp.2d 668 (E.D.Tex. 1999) (court held that former employee who suffered stress and one day of illness did not suffer from serious health condition).
In Satterfield, the plaintiff asked her mother to deliver a note to her employer stating that she was having a lot of pain in her side and would not be able to come to work that day. The plaintiff made a doctor's appointment for three days later, but failed to call her employer to inform it of the appointment or that she would not be able to work for those three days. The plaintiff then saw the doctor, who wrote her a medical excuse and scheduled surgery. But, the plaintiff failed to deliver the excuse or contact her employer until one week later. The Fifth Circuit, in overturning a jury verdict for the plaintiff, held that the plaintiff's notice was insufficient. They noted that "[w]hile an employer's duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant." and that the plaintiff's notice was "either too little, too late, or both." Satterfield, 135 F.3d at 980.
In Robinson v. Overnite Transp. Co., 1997 WL 165416, 110 F.3d 60 (4th Cir. 1997), a truck driver who had been injured in an accident was cleared by his physician to resume work. The plaintiff, however, continued to experience pain and submitted another doctor's report recommending no driving. The employer suspended the plaintiff for insubordination before seeing the new doctor's report and terminated the plaintiff days later. The court held that the employer did not have sufficient notice of the nature of the plaintiff's injury at the time it took disciplinary action against him and there was no FMLA violation. Robinson, 110 F.3d at *9-*10. Accordingly, the court is of the opinion that no reasonable juror could find that adequate notice was given to the Grand Casino regarding Bryan's intention to take FMLA leave due to a serious illness. The court, therefore, finds that the Grand Casino is entitled to summary judgment as a matter of law.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING SUMMARY JUDGMENT
Pursuant to an opinion issued this day, it is hereby ordered that:
1. the Defendant, BL Development Corp., d/b/a Grand Casino-Tunica's, motion for summary judgment (docket entry #57) is GRANTED;
2. all claims arising under the Family Medical Leave Act are DISMISSED; and
3. this case is CLOSED.