Opinion
Cause No. 1:00-CV-460
July 1, 2002
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
The plaintiff Steve McDowell ("Plaintiff") brings this suit against the defendant, SPX Corporation ("SPX") alleging violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601-2654.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636 (c), all parties consenting.
In short, the Plaintiff argues SPX interfered with his substantive FMLA rights when it terminated him for excessive absenteeism under its no-fault progressive discipline policy. Specifically, the Plaintiff points to seven absences that he contends qualified for FMLA leave, and if he is right about any of them, he may have a case.
Currently before the Court are SPX's September 27, 2001, motion for summary judgment, and the Plaintiffs November 9, 2001, cross-motion for summary judgment.
The Plaintiff filed his cross-motion for summary judgment more than five weeks after the dispositive motion deadline expired on September 27, 2001. The Plaintiff has offered no explanation for his untimely motion, but appears to argue that it is timely since it responds to SPX's timely filed motion. However, the Plaintiff has cited no authority for this proposition and our research has revealed none. Indeed, as we see it, the Plaintiff simply failed to timely file his cross-motion for summary judgment and never sought an enlargement of time under Fed.R.Civ.P. 6(b). Therefore, the Plaintiff's cross-motion for summary judgment will be DENIED as untimely.
In its motion for summary judgment, SPX at first limited its discussion to the Plaintiffs final two absences (i.e., July 26 and 27, 1999) because the Plaintiff testified during his deposition that only those dates were entitled to FMLA leave. However, in his response to SPX's motion, the Plaintiff changed course and argued that eight absences actually qualified for FMLA leave. SPX then argued that the Plaintiffs prior deposition testimony amounted to a binding judicial admission, so his claim could actually embrace only the July 26, and 27, 1999 absences.
However, because the Plaintiffs deposition testimony constituted only a non-binding evidentiary admission, rather than a judicial one, see Soo Line RR. Co. v. St. Louis Southwestern Railway Co., 125 F.3d 481, 482 (7th Cir. 1997); Keller v. United States, 53 F.3d 1194, 1199 n. 8 (7th Cir. 1995); W.R. Grace Co. v. Viskase Corp., 1991 WL 211647, *2 (N.D. Ill. 1991), and because SPX had relied on it, possibly misled into doing no discovery on the remaining absences, we allowed supplemental discovery and briefs on those six other absences. (See Docket No. 49.) Those briefs have now been filed.
SPX now contends that none of the Plaintiffs eight absences were due to a "serious health condition" as defined by the FMLA, see 29 U.S.C. § 2612 (a)(1), but even if they were, the Plaintiff failed to provide adequate notice of his intent to take them as FMLA leave. See 29 U.S.C. § 2612 (e)(1); 29 C.F.R. §§ 825.302; 825.303.
The Plaintiff responds that seven of his absences were all related to a serious health condition and he otherwise provided proper notice to SPX. To support his claims, the Plaintiff submitted his own affidavit and the affidavit of his cardiologist, Dr. Subhash Reddy ("Dr. Reddy"). This, in turn, led SPX to file a motion to strike portions of both affidavits, and the motion to strike has also been fully briefed.
The Plaintiff concedes that his absence on September 15, 1998, when he overslept, was properly counted against him. (Pl.'s Supp. Br. at 2.)
The record consists of various affidavits, deposition excerpts, and documents. The Court has jurisdiction under 28 U.S.C. § 1331.
For the following reasons, SPX's motion to strike will be GRANTED, and its motion for summary judgment will be GRANTED in part and DENIED in part.
II. SPX'S MOTION TO STRIKE
In its second motion to strike, SPX contends various portions of the Plaintiffs and Dr. Reddy's affidavits should be stricken. Since the Plaintiff concedes that SPX's second motion to strike should be granted except for Paragraph 17 of Dr. Reddy's affidavit ("Paragraph 17"), we limit our discussion to that paragraph. (See Pl.'s Resp. to Def.'s Second M. to Strike at 1.)
Specifically, SPX asks us to strike the following portions of the Plaintiff's affidavit: Paragraph 4, Paragraph 5, the last sentence of Paragraph 7, the fourth and sixth sentences of Paragraph 10, and the second and third sentences of Paragraph 11; also sought to be stricken is the second sentence of Paragraph 16, and all of Paragraph 17 of Dr. Reddy's affidavit.
SPX argues we should strike Paragraph 17 because it is not supported by information within Dr. Reddy's personal knowledge and because it lacks an adequate medical foundation. In Paragraph 17, Dr. Reddy states:
Any incident of heat exhaustion that [the Plaintiff] suffered in July, 1999 was caused in part by his heart condition, having rendered him more susceptible to such. Especially if it started by him having chest pains after working about an hour and a half
(Pl.'s Ex. 1, Reddy Aff., ¶ 17.)
Fed.R.Civ.P. 56(e) provides that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the mailers stated therein." Fed.R.Civ.P. 56(e) (emphasis added). While "personal knowledge" includes inferences and opinions, those inferences and opinions cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience;" rather, they must be "grounded in observation or other first-hand personal experience." Visser v. Packer Eng'g Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991); E.E.O.C. v. Admiral Maintenance Service, L.P., 174 F.R.D. 643, 647 (N.D. Ill. 1997); Mathis v. Pete Georges Chevrolet, Inc., 1998 WL 708806, *10 (N.D. Ill. Sept. 30 1998).
Here, Dr. Reddy's opinion is not "grounded in" his personal observation of, or experience with, the Plaintiff Indeed, Dr. Reddy never treated the Plaintiff for heat exhaustion, or even reviewed the medical records of the physician who did. (Reddy Dep. at 111.) Moreover, during his deposition, Dr. Reddy admitted that Paragraph 17 was not based on personal observation, but was simply a "generalized statement" summarizing "what we feel as physicians[.]" (Id.) However, such bald, unsubstantiated assertions are precisely what Fed.R.Civ.P. 56(e) was meant to exclude.
Nevertheless, the Plaintiff points to portions of Dr. Reddy's deposition supposedly to establish an underlying basis for his "generalized statement." (See Reddy Dep. at 106-110.) However, in his deposition, Dr. Reddy merely states that angina may be more likely in extreme conditions, somewhat anecdotally noting that the incidence of heart attacks occur more frequently in cold weather. (Id. at 108, 111.) However, the medical condition Dr. Reddy is supposed to be talking about here at issue is heat exhaustion, not angina or heart attacks, and there is simply no evidence in the record, and certainly Dr. Reddy does not discuss any, that suggests coronary artery disease leads or contributes to heat exhaustion. Consequently, Dr. Reddy's affidavit testimony is, as far as we can tell, nothing more than speculation, unsupported by his own deposition testimony.
Finally, because the Plaintiff appears to offer Dr. Reddy's statement as expert medical testimony, he must demonstrate that Paragraph 17 is reliable and relevant under Fed.R.Evid. 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Ueland v. United States ___ F.3d ___ 2002 WL 1159627, *4 (7th Cir. June 3, 2002) (medical expert opinion testimony admissible under Rule 702 "only if based on sufficient facts, [and] analyzed using medically appropriate methods by a person competent to give an opinion."); Masters v. Hesston Corp., ___ F.3d ___ 2002 WL 1075809, *5 (7th Cir. May 31, 2002).
Fed.R.Evid. 702 states "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."
However, Dr. Reddy's opinion is not based on any reliable medical principles or methods; for example, he admits in his deposition that his opinion is not based on any research, but is essentially unsubstantiated supposition or "what we feel as physicians." (Reddy Dep. at 112.) Moroever, Dr. Reddy's opinion appears to be offered in a vacuum; after all, he apparently was unaware of the conditions present when the Plaintiff suffered from heat exhaustion, and he offers no explanation why the Plaintiff suffered heat exhaustion in July 1999, but not before. And while Dr. Reddy is presumably competent to offer a medical opinion, he has provided no facts, data, or research to either support an opinion or to demonstrate that it comes from reliable principles or methods. See Fed.R.Evid. 702; Ueland, 2002 WL 1159627, at *4. Indeed, on this record, we only have Dr. Reddy's curriculum vitae and his conclusions, with no hint of an inferential process or analysis. Mid-States Fertilizer v. Exchange National Bank of Chicago, 877 F.2d 1333, 1339-40 (7th Cir. 1989). In short, Dr. Reddy has provided only a bare, conjectural conclusion, which must be excluded under Fed.R.Evid. 702. Id. ("An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process."). Therefore, SPX's motion to strike will be granted.
III. FACTUAL BACKGROUND
The following facts are recited in a light most favorable to the Plaintiff.
The Plaintiff, an FMLA eligible employee, worked as a furnace operator for SPX at its Auburn, Indiana Contech facility from July 17, 1995, until July 29, 1999, when he was terminated for excessive absenteeism. (Am. Compl. ¶¶ 7, 9.)
Since January 1, 1998, SPX has operated under a progressive discipline "no-fault" Absence Control Policy ("Absence Policy") (see Def.'s Ex. A, Conrad Aff., ¶ 7; Def.'s Ex. C, Absence Policy at 2-3) with no provision for so-called "excused" absences (e.g., a doctor's excuse), unless the absence otherwise qualified for some form of leave of absence, like FMLA leave. (Def.'s Ex. A, Conrad Aff., ¶¶ 8-9.) Simply stated, under the Absence Policy, an employee is discharged after eight (8) absences in a rolling twelve-month period, unless those absences somehow qualify for FMLA leave. (Def.'s Ex. A, Conrad Aff., ¶ 16; Def.'s Ex. C, Absence Policy at 3; Def.'s Ex. G, Auburn Policy at 3)
Several SPX policies document the employees' FMLA rights. SPX's employee handbook delineates the type of acceptable leave available to employees, including a brief summary of FMLA leave. (Def.'s Ex. 1, Employee Handbook at 3-5.) The SPX's Auburn, Indiana, Contech Division's Absence Control Policy also details the different forms of available leave. (Def.'s Ex. G, Auburn Policy at 3-5.) Moreover, SPX maintains a separate FMLA policy that addresses the requirements, including notice and certification, for taking advantage of FMLA leave. (Def.'s Ex. K, FMLA Policy at 1-3.) The Plaintiff concedes he received and reviewed all of these policies. (See Pl.'s Dep. I at 35, 37, 44, 77; Def.'s Ex. J, Pl.'s Employee Handbook Acknowledgment Form.)
Under the Absence Policy, the first five absences result in "corrective interviews" (i.e., verbal warnings) with the employee's supervisor. (Def.'s Ex. A, Conrad Aff. ¶ 10-12; Def.'s Ex. C, Absence Policy at 3.) The sixth absence results ma written Absence Control Notice warning. (Def.'s Ex. A, Conrad Aff. ¶ 14) The seventh absence results in either a disciplinary layoff and/or a job jeopardy warning that notes all prior absences leading to that warning. (Def.'s Ex. A, Conrad Aff. ¶ 15.) Finally, the eighth absence results in termination. (Def.'s Ex. A, Conrad Aff. ¶ 16.)
In 1997, the Plaintiff began suffering from coronary artery disease, ultimately requiring cardiac catheterization in September 1997 and again in January 1999. (Pl.'s Ex. 1, Reddy Aff., ¶ 4; Pl.'s Ex. 2, Pl.'s Aff., ¶ 6; Pl.'s Dep. I at 80.) As a result of this condition, the Plaintiff took approximately twenty (20) days of FMLA leave in September of 1997. (Pl.'s Dep. I at 80.) In fact, the Plaintiff ultimately requested and received a total of fifty (50) days of FMLA leave in 1997, twenty-four (24) days of FMLA leave in 1998, and seven (7) days of FMLA leave in 1999. (Def.'s Ex. A, Conrad Aff., ¶ 23.) The Plaintiff was obviously well acquainted with both the FMLA and SPX's Absence Policy because for each of these 81 FMLA absences, he submitted the required documentation, leave requests, and medical certification forms. (Def.'s Ex. A, Conrad Aff., ¶ 24.)
A cardiac catheterization is a diagnostic tool which examines the arteries of the heart for obstructions. (Reddy Dep. at 44.)
Nevertheless, beginning in August 1998, the Plaintiff started accumulating the disciplinary actions under the Absence Policy that ultimately led to his discharge. Since the Plaintiff now challenges seven of these disciplinary actions (i.e., August 24, 1998, December 4, 1998, January 18, 1999, April 26, 1999, June 10, 1999, July 26, 1999, and July 27, 1999) as violations of his substantive FMLA rights, it is necessary to examine each one. (See Def's Ex. A, Conrad Aff., ¶ 26.)
After working a half day on August 24, 1998, the Plaintiffs "heart started hurting," and he went home. (Pl.'s Ex. 2, Pl.'s Aff., ¶ 7.) The Plaintiff informed SPX, and they recorded the reason for his absence as "[w]ent home at 10:30 a.m. heart problem." (Pl.'s Ex. 7 at 5, Aug. 24, 1998 Absence Report.) However, despite this report, the Plaintiff apparently never saw or telephoned his cardiologist (see Reddy Dep. at 64, 72; Pl.'s Dep. II at 190-191), does not remember taking any heart medication (see Pl.'s Dep. II at 190-191), and now even admits that this absence was not because of a serious health condition. (Pl.'s Dep. II at 184, 189-90.) In fact, the Plaintiff returned to work the next day and worked nine (9) hours, followed by eight-hour days for the remainder of the week. (Def.'s Ex. T, Conrad Aff., ¶¶ 9, 10.)
On August 31, 1998, the Plaintiff received a corrective interview with his supervisor pursuant to the Absence Policy. At that time, the Plaintiffs supervisor read to him SPX's Absence Control Notice, which contained the following language:
CONTINUED ABSENCE WILL JEOPARDIZE YOUR EMPLOYMENT WITH [SPX.] YOUR ABSENCE MAY QUALIFY AS FEDERAL FAMILY AND MEDICAL LEAVE ACT (FMLA). IF YOU ARE INTERESTED IN PURSUING YOUR FMLA RIGHTS, PLEASE SEE YOUR HUMAN RESOURCE REPRESENTATIVE.
(Def.'s Ex. N, Aug. 31, 1998 Absence Control Notice) (emphasis added). However, despite signing an acknowledgment of this notice, the Plaintiff never pursued FMLA leave for this absence.
On December 4, 1998, the Plaintiff missed work, calling in merely to report being "sick." (Pl.'s Ex. 2, Pl.'s Aff., ¶ 9; Pl.'s Ex. 7 at 7, Dec. 4, 1998 Absence Report; Pl.'s Dep. II at 185-186.) Subsequently, on December 8, 1998, SPX presented the Plaintiff with another notice alerting him that this absence, like the August 24, 1998 absence, was unexcused, but that he could pursue FMLA leave. (Def.'s Ex. P. Aug. 24, 1998 Absence Control Notice.) However, the Plaintiff never pursued FMLA leave for this date either.
On January 9 and 10, 1999, the Plaintiff was absent from work again, but this time it was to help care for his wife who was suffering from shingles. (See Def.'s Ex. X, March 15, 1999 Certification of Health Care Provider at 1; Def.'s Supp. M. Ex. T., Conrad Aff. ¶ 18.)
On January 18, 1999, the Plaintiff left work after a few hours because of "chest pains" (Pl.'s Ex. 2, Pl.'s Aff. ¶ 10), but SPX merely recorded his absence as "[w]ent home sick at 8:40 a.m." (Pl.'s Ex. 7 at 10, Jan. 18, 1999 Absence Report.) Then, on January 19, 1999, the Plaintiff called in "sick." (Pl.'s Ex. 7 at 11, January 19, 1999 Absence Report.)
The Plaintiff returned to work on January 20, 1999, but, after working 30 minutes, he left and checked himself into the hospital, where he received a heart catheterization. (See Pl.'s Ex. 2, Pl.'s Aff., ¶ 10; Pl.'s Ex. 1, Reddy Aff. ¶ 5; Pl's Ex. 6 at 3, Wage Employee's Individual Attendance Record, 1999). He remained hospitalized for two days and stayed off work until January 25, 1999. (Id.) On January 26, 1999, Dr. Reddy provided a note to SPX requesting at least a two month reduction in the Plaintiffs work schedule to five (5) days per week because of his coronary artery disease. (See Pl.'s Ex. 9, January 26, 1999 Note from Reddy.)
Suspecting that this week-long absence might qualify as FMLA leave, SPX provided the Plaintiff with a FMLA health care certification form, which Dr. Reddy completed and returned on February 5, 1999. In the certification, Dr. Reddy indicated the Plaintiff suffered from a serious health condition as defined by the FMLA, noting that it began on January 20, 1999, rather than January 18, 1999, and that the Plaintiffs condition would require a shortened work week or intermittent absences from work until March 26, 1999. (Pl.'s Ex. 8 at 1, Feb. 5, 1999 Certification of Health Care Provider.)
In his deposition, Dr. Reddy claims he mistakenly listed January 20th because he thought the certification was only to cover the Plaintiffs hospitalization. (See Reddy Dep. at 79, 106-07.)
However, despite Dr. Reddy's certification that the Plaintiffs serious health condition began on January 20, SPX started his FMLA leave on January 19, 1999, marking the January 18, 1999, absence as unexcused. (See Def.'s Supp. Br. Ex. N, Conrad Aff., ¶ 4.)
Also on February 5, 1999, the Plaintiff received a corrective interview with his supervisor, and was informed that SPX was counting his August 24, 1998, September 15, 1998, January 9-10, 1999, and January 18, 1999 absences as unexcused under the Absence Policy. (Def.'s Ex. Q, Feb. 5, 1999 Absence Control Notice.) Once again, the Plaintiff was told he could pursue FMLA leave for these days.
In fact, the Plaintiff did pursue FMLA leave, but only for January 9-10 absences related to his wife's illness. In March 1999, the Plaintiff submitted another FMLA health care certification form, this time from his wife's physician, indicating those absences had been necessary to care for his wife's serious health condition. (Def.'s Ex. X, March 15, 1999 Certification of Medical Provider at 1; Def.'s Ex. T, Conrad Aff., ¶ 18.) After receiving this certification, SPX's company physician obtained medical releases and determined these absences to be FMLA-qualifying, and SPX counted the January 9-10, 1999 absences as FMLA leave. (Def.'s Ex. T, Conrad Aff., ¶ 18.)
On Monday, April 26, 1999, the Plaintiff was absent from work due to, as he describes it, "severe chest pains." (Pl.'s Ex. 2, Pl.'s Aff., ¶ 11.) The Plaintiff called SPX before work that day, and they recorded "chest pains" as the reason for the absence. (Pl.'s Ex. 7 at 15.) However, the Plaintiff did not visit or telephone Dr. Reddy and he did not receive any medical treatment. (Reddy Dep. at 83-84.) In fact, the Plaintiff returned to work the next day and continued working without restriction for the rest of the week. (Def.'s Ex. T, Conrad Aff., ¶ 10.)
Then, on April 29, 1999, during a corrective interview, the Plaintiffs supervisor provided the Plaintiff with a notice advising him that his August 24, 1998, September 15, 1998, December 4, 1998, January 18, 1999 and April 26, 1999 absences were unexcused, but that he could pursue FMLA leave for these days. (See Def.'s Ex. R, April 29, 1999 Absence Control Notice.)
Less than one week later, from May 5-9, 1999, the Plaintiff was again absent from work, but on May 7, 1999, he explained to SPX's human resources manager that he needed FMLA leave because his absences were caused by the same coronary artery disease covered in his January 1999 certification. (Def.'s Ex. T, Conrad Aff., ¶ 12.) Then later that day, Dr. Reddy provided SPX with a note, asking that SPX excuse the Plaintiff from work for all five (5) days due to "medical problems." (Pl.'s Ex. 9 at 4, May 7, 1999 Note from Dr. Reddy.) Based on this information, SPX counted the May 5-9, 1999 absences as FMLA leave. (Def's Ex. T, Conrad Aff., ¶ 12).
On June 10, 1999, the Plaintiff was again absent from work, simply calling in "sick." (Pl.'s Ex. 2, Pl.'s Aff., ¶ 12.)
On July 26, 1999, after a few hours of work, the Plaintiffs chest began hurting, he felt nauseous and he stopped sweating. (Pl.'s Dep. I at 73.) Before leaving early, the Plaintiff informed SPX, and they recorded the absence as being due to "chest pains, left at 7:30 a.m." (Pl.'s Ex. 7 at 19, July 26, 1999 Absence Report.) The Plaintiff went to his family physician, Dr. Steven Glassley, and he diagnosed the Plaintiff's problem as heat exhaustion, and instructed him to go home, drink fluids, and eat salty foods. (Pl.'s Dep. at 141.) Dr. Glassley did not prescribe any medication or other course of treatment.
The next day, July 27, 1999, the Plaintiff telephoned SPX and reported that he would be absent "due to heat exhaustion." (Pl.'s Ex. 7 at 20, July 27, 1999 Absence Report.) Later that same day, Dr. Glassley, without further examination, faxed a note to SPX indicating that the Plaintiff was "totally incapacitated," but could probably return to work on July 28, 1999. (See Def.'s Supp. Reply, Ex. 5, July 27, 1999 Disability Certificate; Def.'s Ex. A, Conrad Aff., ¶ 27; Pl.'s Dep. I at 74.) The Plaintiff then returned to work on July 28, 1999, but was terminated for excessive absenteeism under SPX's Absence Policy on July 29, 1999.
V. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "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). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a mater of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
VI. DISCUSSION
The FMLA provides covered employees with up to twelve weeks of unpaid leave per year "[b]ecause of 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). After the period of FMLA leave expires, the employee has the right to be reinstated to his former position or an equivalent one with no loss of benefits. 29 U.S.C. § 2614 (a); Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000). To insure the availability of these guarantees, the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any [FMLA] right . . ." 29 U.S.C. § 2615 (a)(1), and makes violators subject to consequential damages and appropriate equitable relief 29 U.S.C. § 2617 (a)(1); Ragsdale v. Wolverine World Wide, Inc., 535 U.S. ___, 122 S.Ct. 1155, 1160 (2002).
To establish a claim of interference with his substantive FMLA rights, the Plaintiff must demonstrate entitlement to the disputed leave by a preponderance of the evidence. See Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799, 804 (7th Cir. 2001); Rice, 209 F.3d at 1017; King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).
The parties agree that the Plaintiff is an "eligible employee" and that SPX is an employer under the FMLA. See 29 U.S.C. § 2612 (a)(1); 2611 (2) (4). Accordingly, to be entitled to leave, the Plaintiff must show that his need for leave falls into at least one of the enumerated reasons set out in 29 U.S.C. § 2612 (a)(1), and that he provided SPX with adequate notice. See 29 U.S.C. § 2612 (e)(1); 29 C.F.R. §§ 825.302-825.303; Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001); Stoops, 141 F.3d at 313. Here, the Plaintiff contends he was entitled to FMLA leave "[b]ecause of a serious health condition that [made him] unable to perform the functions of [his job]." 29 U.S.C. § 2612 (a)(1)(D); see also Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 1997); Stoops v. One-Call Communications, 141 F.3d 309, 312 (7th Cir. 1998).
A. Standard for a Serious Health Condition
The Plaintiff contends his coronary heart disease is a serious health condition that periodically made him unable to perform his job. Whether the Plaintiffs coronary heart disease constitutes a serious health condition is a question of law. See Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999). A serious health condition is "an illness, injury, impairment, or physical or mental condition that involves . . . inpatient care" or "continuing treatment by a health care provider." 29 U.S.C. § 2611 (11)(A) (B). Since the Plaintiff did not undergo "inpatient care," he must show that his heart condition is a "continuing treatment," as defined by the applicable regulations, specifically, that it is either a "chronic serious health condition" or a "condition for which treatment may not be effective." See 29 C.F.R. § 825.114 (a)(2)(iii) (iv).
The regulation defines "serious health condition involving continuing treatment," in pertinent part, to include:
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider. . . .;
(B) Continues over an extended period of time . . .; and
(C) May cause episodic rather than a continuing period of incapacity."
(iv) A period of incapacity which is long-term or permanent due to a condition for which treatment may not be effective. The employee . . . must be under the continuing supervision of . . . a health care provider.29 C.F.R. § 825.114 (a)(2)(iii) (iv) (emphasis added).
To support his claim, the Plaintiff offers Dr. Reddy's affidavit, which slavishly tracks 29 C.F.R. § 825.114 (a)(2)(iii) and states that the Plaintiffs heart condition requires periodic visits for treatment, (Pl.'s Ex. 1, Reddy Aff., ¶ 7), has continued over an extended period of time, (Pl.'s Ex. 1, Reddy Aff., ¶ 8), and causes episodic and/or continuing periods of incapacity. (Pl.'s Ex. 1, Reddy Aff., ¶ 9.) While this is probably sufficient at this stage to establish that the Plaintiffs coronary artery disease is a chronic serious health condition, to be entitled to FMLA leave the Plaintiff must go on to demonstrate that each absence was because of this condition. See 29 U.S.C. § 2612 (a)(1)(D). In section C, infra, I will apply this standard to each absence.
Less convincing, however, is the Plaintiffs argument that he suffers from a serious health condition because it is one "for which treatment may not be effective." See 29 C.F.R. § 825.114 (a)(2)(iv). Once again, Dr. Reddy offers an affidavit that tracks 29 C.F.R. § 825.114 (a)(2)(iv), by describing the Plaintiffs heart condition as one for which treatment may not be effective, (Pl.'s Ex. I, Reddy Aff., ¶ 11) and that the Plaintiff was under his continuing care from January 1999 until 2001. (Pl.'s Ex. 1, Reddy Aff. ¶ 12.) However, Dr. Reddy's affidavit fails to fully satisfy the regulation in this instance because while he states "[the Plaintiffs] heart condition is permanent and/or long term" (Pl.'s Ex. 1, Reddy Aff., ¶ 10) (emphasis added), he never gets around to saying that the Plaintiff experienced long-term periods of incapacity. 29 C.F.R. § 114 (a)(2)(iv). of course, this omission is understandable, since the Plaintiffs absences were all relatively brief. Therefore, the Plaintiff has not satisfied the requirements of 29 C.F.R. § 825.114 (a)(2)(iv) as a matter of law.
B. Standard for Notice
Whether the Plaintiff provided SPX with adequate notice that his absences may be FMLA-qualifying is a question of fact, Price, 117 F.3d at 1026, but still subject to summary judgment if no reasonable jury could find he gave sufficient notice. See Collins, 272 F.3d at 1007 (summary judgment appropriate where employee notified employer that she was simply "sick"). See also Satterfield v. Wal-Mart Stores, Inc., 153 F.3d 973, 980-81 (5th Cir. 1998) (employee notice that she had pain in her side inadequate); Carter v. Ford Motor Co., 121 F.3d 1146, 1147-48 (8th Cir. 1997).
The regulations provide that an employee must give 30 days advance notice, or at least notice as soon as practicable, for foreseeable leave. 29 U.S.C. § 825.302. However, if the need for leave is completely unforeseeable, the employee must still provide adequate notice within one or two days of discovering the need for leave. 29 C.F.R. § 825.303 (a); Collins, 272 F.3d at 1008 ("[t]he regulation allows notice to be delayed a day or two"). Adequate notice is "the sort of notice that will inform [SPX] . . . that the FMLA may apply," Collins, 272 F.3d at 1008, and when requesting FMLA leave, the employee need not specifically mention the FMLA, or even know of its existence. See Stoops, 141 F.3d at 312 ("it is sufficient notice if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed"); Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 971 (7th Cir. 2000).
Finally, once an employee provides adequate notice, the employer then bears the burden of ascertaining further details to determine whether the leave qualifies for FMLA protection. See 29 C.F.R. § 825.303 (b); Price, 117 F.3d at 1026.
C. Applying the Legal Standard to Each Absence
Having set out the legal standards, I now apply them to each absence the Plaintiff claims qualifies for FMLA protection.
1. August 24, 1998, Absence
On August 24, 1998, the Plaintiff left work after about a half day because his "heart started hurting." (Pl.'s Ex. 2, Pl.'s Aff., ¶ 7.) SPX argues the Plaintiff cannot demonstrate that his August 24, 1998 absence was because of a serious health condition, or that he failed to provide adequate notice of his need for FMLA leave.
(a) The Plaintiff Failed to Show His Absence was "Because of" a Serious Health Condition
In his supplemental briefing, the Plaintiff does not bother to argue that his August 24, 1998, absence was 'because of' a serious health condition, but blithely suggests that since his heart condition is chronic and serious, SPX should have given him FMLA leave. However, this position is legally untenable because it ignores the requirement that the absence be "because of a serious health condition," 29 U.S.C. § 2612 (a)(1)(D) (emphasis added), and that this be demonstrated by a preponderance of the evidence. See Kohls, 259 F.3d at 804; Rice, 209 F.3d at 1017; King, 166 F.3d at 891; Diaz, 131 F.3d at 713. Indeed, we know from Stoops that an "employee [must] state a 'qualifying reason' for the needed leave." Stoops, 141 F.3d at 313; see also Collins, 272 F.3d at 1007 (simply reporting "sick" fails to show entitlement to FMLA leave).
We extract this argument from the Plaintiffs unsupported statement that "[t]he employee does not have to show that his need for leave is due to a serious health condition. The most such an employee has to do is ask for leave." (Pl.'s Supp. Br. at 17.)
Here, there is simply no evidence that the Plaintiffs August 24, 1998 absence was because of a serious health condition. First, the Plaintiff admits his absence had nothing to do with his heart condition, (Pl.'s Dep. II at 184, 189-90), and he points to no evidence that he had a heart problem that day. Indeed, the Plaintiff did not see or speak with any physician regarding his heart condition, and apparently did not take any heart medication. (Reddy Dep. at 64, 72; Pl.'s Dep. II at 190-91.) Thus, there is no evidence by which a reasonable jury could conclude, or even infer, that the Plaintiffs absence was because of a serious health condition. 29 U.S.C. § 2612 (a)(1)(D).
(b) The Plaintiff Failed to Provide SPX with Adequate Notice
Moreover, the Plaintiff failed to provide SPX with adequate notice that his August 24 absence was because of a serious health condition. Indeed, after missing just a half-day of work, the Plaintiff returned to work nine hours the following day, and eight hours per day for the rest of the week. This is not indicative of someone afflicted with "serious" heart problems, and would not have led SPX to believe that the Plaintiff needed FMLA leave. See Collins, 272 F.3d at 1008 (employee must provide notice of a qualifying reason); Price, 117 F.3d at 1026 (employee must notify employer of the need for FMLA leave).
Additionally, on August 29, 1998, SPX afforded the Plaintiff ample opportunity to pursue FMLA leave by presenting him with an individualized notice that this absence was unexcused, but that he could pursue FMLA leave. See Ragsdale, 122 S.Ct. at 1166 ("[i]ndividualized notice reminds employees of the existence of the Act and its protections at the very moment they become relevant."); Price, 117 F.3d at 1026. Nevertheless, despite receiving this notice, and five others listing August 24, 1998, as unexcused, the Plaintiff never pursued FMLA leave for this date until well after his termination. This is telling given that the Plaintiff was experienced in obtaining FMLA leave. Thus, we believe no reasonable jury could conclude that the Plaintiff provided SPX with adequate notice of his need for FMLA leave.
Therefore, the Plaintiff has not met his burden of demonstrating entitlement to FMLA leave on August 24, 1998.
2. December 4, 1998, and June 10, 1999 Absences
On both December 4, 1998 and June 10, 1999, the Plaintiff simply called in "sick." (Pl.'s Ex. 2, Pl.'s Aff., ¶ 9, 12; Pl.'s Ex. 7 at 7, 17.) SPX contends the Plaintiff cannot demonstrate that his absences on December 4, 1998 and June 10, 1999, were because of a serious health condition and there was inadequate notice in any event.
(a) The Plaintiff Failed to Show His Absence was "Because of" a Serious Health Condition
The Plaintiff admits he was "just sick" on both days and that these absences had nothing to do with his heart condition. (Pl.'s Dep. II at 185, 186; Pl.'s Ex. 2, Pl.'s Aff., ¶ 9).
Therefore, because the Plaintiff admits that his need for leave on these days was not 'because of' coronary artery disease, he has failed to demonstrate entitlement to FMLA leave for either date. See 29 U.S.C. § 26 (a)(1)(D); Collins, 272 F.3d at 1008.
(b) The Plaintiff Failed to Provide SPX with Adequate Notice
Moreover, no reasonable jury could find that the Plaintiff provided adequate notice to SPX on these days; simply reporting "sick" is insufficient to put the employer on notice that the absences were covered under the FMLA. See Collins, 272 F.3d at 1008 ("'[s]ick' does not imply 'a serious health condition.'"); Satterfield, 135 F.3d at 981 (employee's statement that she is sick or has a pain in her side was insufficient to place employer on inquiry notice).
In addition, the Plaintiff never asked that these absences, indeed any of the absences (other than July 26 and 27, 1999, discussed infra) should be granted FMLA leave. This ommission is understandable here since he did not think these absence were entitled to FMLA coverage because he was "just plain sick." (Pl.'s Dep. II at 208-209.) Thus, there was no FMLA notice as a matter of law. Collins, 272 F.3d at 1008.
Therefore, the Plaintiff is not entitled to FMLA leave as a matter of law for these dates either.
4. January 18, 1999 Absence
On Monday January 18, 1999, the Plaintiff left work after a few hours because of chest pains, and apparently was not able to return to work full time until the following Monday, January 25. Although SPX counted the Plaintiffs January 19-22, 1999 absences as FMLA leave, they did not do so for January 18. SPX argues that the Plaintiff was not entitled to FMLA leave on that day because it was not included in Dr. Reddy's certification. In response, the Plaintiff appears to claim SPX violated the FMLA when it did not ask him to provide a separate certification for that date as well.
Under the FMLA, an employer may require "a certification issued by the [employee's] health care provider[.]" 29 U.S.C. § 2613 (a). The employer may rely on such a certification, so long as it is not contradicted by "overriding medical evidence." Stoops, 141 F.3d at 314.
Here, SPX had a right to rely on Dr. Reddy's certification that the Plaintiffs January 20-22 absences were entitled to FMLA leave, even if that certification contained a mistake. Id. Indeed, it is clear that SPX relied on the certification since it granted FMLA leave for those days. Moreover, it appears SPX actually granted the Plaintiff more FMLA leave than he was entitled to since he also received leave for January 19 as well. However, January 18 was certainly not covered by Dr. Reddy's certification, and SPX properly counted this day against him.
Nevertheless, the Plaintiff suggests that SPX should have caught Dr. Reddy's purported mistake on July 28, 1999 when it was reviewing the Plaintiffs absences, and should have required another certification at that time. However, the Plaintiff was "the person most able to determine that the . . . certification was 'wrong' and was the person with the incentive, certainly the burden, to have it corrected." Stoops, 141 F.3d at 313.
Moreover, the Plaintiff certainly knew that SPX had counted this absence against him; it was specifically listed on four Absence Control Notices he received on February 5, April 29, June 15, and July 29, 1999. In this regard, the Plaintiffs reaction to the February 5 notice is most instructive. Upon receipt of that notice, the Plaintiff challenged his January 9-10, 1999, absences, and pursued FMLA leave for them. However, at the same time, the Plaintiff never contested the January 18 absence. Now, over three years later, the Plaintiff claims it was solely SPX's obligation to catch this purported mistake. However, as the Seventh Circuit has counseled, it is the Plaintiff who needs to come forward to correct a certification and certainly "in time to save his job, not during the subsequent law suit." Stoops, 141 F.3d at 314.
Finally, the Plaintiff appears to argue that because SPX's Individual Employee's Attendance Record suggests that SPX thought at one point that each of the January 18-22 absences qualified as FMLA leave (Pl.'s Ex. 6 at 3, 1999 Individual Employee's Attendance Record), he should be granted FMLA leave for January 18. (See Pl.'s Supp. Br. at 6-7.) However, the unchallenged record on this point, from SPX's human resource director, is that this document does not accurately reflect SPX's final FMLA determinations. (Def.'s Supp. M. Ex. N, Conrad Aff. ¶ 7.) The validity of this point is reinforced by the fact that the same record shows the Plaintiffs May 5-9, 1999, absences as unexcused, even though he later received FMLA leave for them.
In short, Dr. Reddy's certification did not indicate that the Plaintiff was entitled to FMLA leave on January 18, and SPX had every right to rely on that unchallenged certification. In fact, a fair inference is that the Plaintiff relied on it too, because he left it unchallenged through four subsequent absences. Therefore, the January 18, 1999 absence also does not qualify for FMLA leave as a matter of law.
5. April 26, 1999, Absence
On April 26, 1999, the Plaintiff was absent from work because of "severe chest pains." (Pl.'s Ex. 2, Pl.'s Aff., ¶ 11.) SPX contends he cannot demonstrate that this absence was due to a serious health condition, or that he provided adequate advance notice of his need to take intermittent leave for his chronic serious health condition, as required under
(a) The Plaintiff Failed to Show His Absence was "Because of" a Serious Health Condition
The Plaintiff does not argue that this absence was because of a serious health condition, but once again suggests that because his heart condition is serious and chronic, SPX should have provided him FMLA leave. However, as discussed supra, this contention ignores the requirement that the absence be because of a serious health condition. 29 U.S.C. § 2612 (a)(1)(D).
Indeed, there is simply no evidence here revealing that the Plaintiffs absence was because of his heart condition, and he points to no evidence that he had an actual heart problem on April 26. Indeed, like his August 24, 1998 absence, the Plaintiff did not see or speak with any physician regarding his heart condition. (Reddy Dep. at 83-84.) Moreover, it is hard to believe that the Plaintiff was unable to perform the functions of his job on April 26, see 29 U.S.C. § 2612 (a)(1)(D), since he only missed that day of work, returning to work for eight-hour days the rest of the week. In contrast, the only evidence suggesting the April 26 absence was because of a serious health condition is the Plaintiffs own supplemental deposition testimony, where he indicates it was related to his heart condition. (Pl.'s Dep. II at 185.) However, that testimony, standing alone as it does, is insufficient to demonstrate that the absence was in fact necessary. See Price v. Marathon Cheese Corp., 119 F.3d 330, 335 (5th Cir. 1997); Brannon v. Osh Kosh B'Gosh, Inc., 897 F. Supp. 1028, 1035 (M.D.Tenn. 1995). This observation is further validated by the Plaintiffs first deposition, where he admitted that he did not believe the absence qualified for FMLA leave (Pl.'s Dep. I at 126), see Keller, 58 F.3d at 1198-99 n. 8; 3 Graham, Handbook of Federal Evidence § 801.26 (5th Ed. 2001), a point further reinforced by his failure to even argue the issue in his supplemental brief. Thus, there is no evidence by which a reasonable jury could conclude, or even infer, that the Plaintiffs April 26 absence was because of a serious health condition. 29 U.S.C. § 2612 (a)(1)(D).
(b) The Plaintiff Failed to Notify SPX of His Need for Intermittent Leave
SPX argues that since the Plaintiff alleges a chronic serious health condition requiring intermittent periods of leave (see Pl.'s Resp. Br. at 15; Compl., ¶ 18), he had a duty under 29 C.F.R. § 825.302 to provide SPX with advance notice of any foreseeable need for intermittent leave. SPX then maintains that because the Plaintiff never told them his heart condition was a chronic one requiring intermittent leave for the rest of his life, they had no reason to suspect his April 26, 1999, absence qualified for FMLA leave when he missed that day due to "chest pains."
The Plaintiff appears to contend that because his need for leave on April 26, 1999, was unforeseeable, either no notice was required, or he provided sufficient notice under 29 C.F.R. § 825.303. However, as the Seventh Circuit explains, where an employee has a recurrent, chronic condition which requires him to take leave intermittently, the need for leave is actually foreseeable and notice is generally governed by 29 C.F.R. § 825.302, which requires 30 days advance notice. See Collins, 272 F.3d at 1008.
With that understanding it is clear that the Plaintiffs need for intermittent leave was foreseeable, and he should have provided notice consistent with § 825.302. Indeed, the Plaintiffs coronary artery disease "did not come to [him] overnight[;]" in fact, it had plagued him since at least September 1997, almost two years prior to his April 26, 1999 absence. Id. Therefore, since the Plaintiff knew he had a heart problem that would lead to missed work on occasion, he should have given the notice contemplated by § 825.302 long before April 26, 1999. Id.
In fact, the Plaintiff knew as early as 1997 that his heart condition would require intermittent absences from work, yet he largely kept SPX in the dark about the seriousness of his condition and his need for intermittent leave. For example, in January 1999, Dr. Reddy's medical certification only indicated that the Plaintiff had been hospitalized, it did not reveal that he had a chronic serious health condition necessitating intermittent leave. Since SPX was entitled to rely, and did rely, on this certification, it had no reason to believe that intermittent leave was needed. See Stoops, 141 F.3d at 314.
Therefore, because we believe no reasonable jury could find that the Plaintiff gave SPX adequate notice of his need for intermittent leave, he is not entitled to FMLA leave for April 26, 1999.
(c) SPX Satisfied its Obligation to Inquire Further
Finally, even if it could be concluded that the Plaintiff gave adequate notice, it is clear that SPX fulfilled its duty to inquire further. Indeed, on April 29, 1999, just three days after the absence, the Plaintiffs supervisor informed him that it would be counted against him, and recited SPX's Absence Control Notice, specifically alerting the Plaintiff that FMLA leave could still apply. (Pl.'s Dep. II at 185-86; Pl.'s Answers to Def.'s Req. for Admis., ¶¶ 15-16.) See, e.g., Ragsdale, 122 S.Ct. 1t 1166. Yet despite these efforts, the Plaintiff never challenged SPX's initial determination, or explained the reason for his absence, or went to human resources.
Nevertheless, the Plaintiff appears to suggest that because SPX arguably knew he suffered from coronary heart disease as evidenced by Dr. Reddy's January 26, 1999 work restriction (see Pl.'s Ex. 9 at 2), it should have known his April 26, 1999, absence was caused by his heart condition. However, the relatively non-descriptive reason offered by the Plaintiff on this occasion was merely "chest pains," a symptom that frequently encompasses even minor ailments, such as heartburn or a pulled muscle. Nevertheless, SPX responded to the Plaintiffs somewhat oblique reference by informing him he might qualify for FMLA leave and instructing him to talk to his human resources representative about applying for it. However, despite extensive experience obtaining FMLA leave, the Plaintiff failed to approach human resources, a notable omission given that at about the same time he was requesting four other days of FMLA leave. (Def.'s Ex. A, Conrad Aff., ¶ 24.)
Perhaps all of this can be explained by the fact that the Plaintiff does not believe his April 26, 1999 absence warrants FMLA protection, a point underscored by his failure to argue the issue in his supplemental brief (See Pl.'s Dep. I at 126.) See Keller, 58 F.3d at 1198-99 n. 8; 3 Graham, Handbook of Federal Evidence § 801.26 (5th Ed. 2001). Indeed, it was not until SPX moved for summary judgment that the Plaintiff suddenly changed course, essentially arguing for the first time that SPX should have divined the real basis for his absence. However, this argument can easily be dispatched, because SPX "is not required to be clairvoyant." Johnson v. Primerica, 1996 WL 34148, *5 (S.D.N.Y. Jan. 30, 1996); Satterfield, 135 F.3d at 980.
Therefore, the Plaintiff has failed to show any entitlement to FMLA leave for his April 26, 1999 absence as a mailer of law.
6. July 26-27, 1999, Absence
On July 26-27, 1999, the Plaintiff missed work due to heat exhaustion. The Plaintiff contends these absences fall under the FMLA because his heat exhaustion was caused, at least in part, by his coronary artery disease. However, our review of the record reveals no evidence supporting this proposition.
While Dr. Glassley diagnosed the Plaintiff with heat exhaustion, caused by a depletion of electrolytes, his treatment notes make no mention of coronary artery disease. (See Def.'s Ex. Z, July 26, 1999 Treatment Notes of Dr. Glassley.) Moreover, apparently even the Plaintiff did not link these absences to his heart condition since his explanation to SPX in a July 27, 1999 phone call was that they were "due to heat exhaustion." (Pl.'s Ex. 7 at 20, July 27, 1999 Absence Report.) In fact, the only evidence in the record which even remotely suggests a relationship between heat exhaustion and coronary artery disease is the deposition testimony of Dr. Donald Marshall, who did not treat the Plaintiff for either one, but who nevertheless offers the opinion that heat exhaustion can have a negative effect on coronary artery disease. (Marshall Dep. at 27.) However, what is missing from the record is any evidence that coronary artery disease, the supposed "serious health condition" for FMLA purposes, contributes in any way to heat exhaustion. Even more telling is that Dr. Glassley, who actually examined the Plaintiff, apparently did not believe that the Plaintiffs coronary artery disease contributed to his heat exhaustion, a point reinforced by the fact that he only excused the Plaintiff from two (2) days of work. Thus, there is no evidence that these absences were because of a serious health condition. See 29 U.S.C. § 2612 (a)(1)(D).
However, even though I have rejected the link proposed by the Plaintiff, I will proceed to determine whether the Plaintiffs heat exhaustion, experienced by someone with coronary artery disease, independently constitutes a serious health condition under the regulations. Because this single episode of heat exhaustion did not involve a pregnancy, a chronic condition, or a long-term or permanent period of incapacity, and did not require multiple treatments, see 29 C.F.R. § 825.114 (A)(2)(ii)-(v), the Plaintiff must show that it resulted in a "period of incapacity . . . of more than three consecutive calendar days, and any subsequent treatment[.] See 29 U.S.C. § 825.114 (A)(2)(i); Price, 117 F.3d at 1024. However, as the Plaintiff recognizes (see Pl.'s Resp. Br. at 17), he cannot satisfy the incapacity requirement of the regulation, since he was absent for only two consecutive days, not three as required under the regulation. 29 C.F.R. § 825.114 (A)(2)(i); Haefling, 169 F.3d at 499.
Moreover, the Plaintiff cannot satisfy the treatment requirements of the regulation, which require either two or more treatments by a health care provider or one treatment with an ordered future regimen. See 29 C.F.R. § 825.114 (a)(2)(i)(A) (B). Here, the record reveals that the Plaintiff only saw Dr. Glassley once, and no future regimen ordered.
While Dr. Marshall suggests that heat exhaustion can be more serious for someone with heart disease, (see Marshall Dep. at 27), that apparently was not the case here. After all, Dr. Glassley only excused the Plaintiff from two (2) days of work and there is no suggestion that this leave was medically insufficient.
Therefore, the Plaintiff's July 26-27, 1999, absences were not due to a serious health condition, and are not entitled to FMLA leave as a matter of law.
CONCLUSION
Because we find the Plaintiff has failed to demonstrate his entitlement to FMLA leave for any of his absences, we will grant SPX's motion for summary judgment.
Therefore, for the foregoing reasons, SPX's motion to strike is GRANTED, and its motion for summary judgment is GRANTED. The Plaintiffs cross-motion for summary judgment is DENIED as untimely. The Clerk is directed to enter Judgment for the Defendant and against the Plaintiff on his complaint.