Opinion
Civil Action No. 01-2963, Section "C" (4)
September 16, 2002
ORDER AND REASONS
I. Introduction
Defendant, Central Progressive Bank ("CPB") moves the Court for summary judgment, dismissing, at Plaintiff's cost, this lawsuit alleging disability discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 2002, et seq. ("ADA'), and La. Rev. Stat. Ann. § 23:322, et seq. CPB argues that Plaintiff cannot state a claim against CPB, because she did not have a "disability," as defined in those statutes. Similarly, CPB argues that Plaintiff cannot state a cause of action against CPB under the Family and Medical Leave Act, 29 U.S.C. § 2611, et seq. ("FMLA"), because Plaintiff did not have a "serious health condition" as defined in the FMLA.
Plaintiff, Beverly Henderson offers no opposition to the motion for summary judgment with respect to her cause of action for Defendant's alleged violation of the ADA and La. Rev. Stat. Ann. § 23:322. Plaintiff opposes the motion for summary judgment with respect to her two "serious heath conditions," namely "the 'spells' [she] suffered over an extended period of time; and [her] "bout with the flu in February, 2000." (Rec. Doc #12. at 5). This is the first time that Plaintiff has asserted that her "serious health condition" was actually "the flu" causing her to miss three days of work in February 2000, and not her "spells," which are not longer the "real issue." (Id. at 5). Plaintiff now asserts that this completely new claim is the basis of the termination of her employment, because the absence from work as a result of the flu violated CPB's "attendance policy." (Id.)
In reply to Plaintiffs opposition, Defendant argues that: (1) Plaintiff is using her opposition to summary judgment to improperly amend her complaint by abandoning the factual allegations that gave rise to her original FMLA claim (i.e. her "spells') in favor of the flu; (2) Plaintiffs flu does not constitute a "serious health condition" under the FMLA; and (3) even if Plaintiffs flu did qualify as a "serious health condition," Plaintiff cannot establish a violation of the FMLA.
After reviewing the motions, the memoranda and exhibits submitted, the applicable law, and the case record, the Court GRANTS summary judgment in favor of Defendant.
II. Summary Judgment
The Court can grant a motion for summary judgment only when 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). Upon such a showing, the burden shifts to the non-moving party to produce evidence of the existence of a genuine issue for trial. Id. A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). When considering a motion for summary judgment, the Court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mutual Automobile Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986).
III. Standard of Review
The Court need not discuss the standard of review under the ADA nor the La. Rev. Stat. Ann. § 23:322, because Plaintiff does not oppose the motion for summary judgment on those grounds. The Court is satisfied after reviewing the record and the applicable law that even if Plaintiff had opposed on those grounds, Defendant's motion would still be granted. To establish a prima facie case under the FMLA, Plaintiff must demonstrate: (1) that she was protected under the FMLA; (2) that she suffered an adverse employment decision; and either (3a) that she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) that the adverse decision was made because she took FMLA leave. See Hunt v. Rapides Healthcare Sys., 277 F.3d 757, 768 (5th Cir. 2001) (citing Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319-20 (5th Cir. 1999) and the 5th Circuit's adoption of the McDonnell Douglas framework for assessing FMLA claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
To establish a prima facie case under the ADA or La. Rev. Stat. Ann. § 23:322, a plaintiff must demonstrate that she (1) suffers a "disability"; (2) is a "qualified individual" for the job; (3) suffered an adverse employment action as a result of her disability; and (4) was replaced or treated less favorably than other non-disabled employees. See McInnis v. Alamo Community College District, 207 F.3d 276, 279 (5th Cir. 2000); Craven v. Universal Life Insurance Co., 677 So.2d 1358, 1362 (La.App. 3rd Cir. 1996) writ denied, 697 So.2d 1355 (1996) (finding that Louisiana anti-discrimination law is based on the federal standard and state courts have looked to federal law for guidance). The Court is satisfied that its analysis of Plaintiff's claims under the FMLA sufficiently explains its grant of summary judgment on the unopposed claims, because establishing a prima facie case under the FMLA is similar to establishing one under the ADA and La. Rev. Stat. Ann. § 23:322. See Lempres v CBS, Inc., 916 F. Supp. 15, 23 n. 37 (D.C. Cir. 1997).
IV. Discussion
A. Whether Plaintiffs Has Established a Prima Facie Case under the FMLA
In her opposition, Plaintiff now asserts "[w]hether the spells were or were not a serious health condition for FMLA purposes is not the issue," because "[they were not] the precipitating factor in the decision to terminate plaintiffs employment." (Rec. Doc. # 12 at 5). Instead, Plaintiff now contends that her employment was terminated, because she was absent from work for three consecutive days in February 2000 as a result of the flu. Plaintiff argues that "the flu is a serious health condition under certain circumstances." (Id. at 6) (emphasis added).
Plaintiff asserts she was absent on Monday, February 14, 2000, the day she went to the clinic and that she remained absent from work the following Tuesday and Wednesday. She asserts that she returned to work on Thursday, February 17, 2000 and was subsequently fired on the following Monday, February 21, 2000.
The Court is uncertain whether Plaintiff is completely renouncing her claim based on the "spells" in favor of the newly asserted theory of "the flu," however, in the interest of judicial economy, the Court will consider both bases. Also, the Court acknowledges Defendant's apt admonition that Plaintiff is attempting to amend her pleadings in contravention of the Court's Scheduling Order set May 13, 2002. (Rec. Doc #15 at 3). Yet, the Court is satisfied that the matter will be more effectively resolved and all parties more judiciously heard by consideration of all memorandum presently submitted.
1. "the flu"
Plaintiff now contends that "[her] bout with the flu in February, 2000" qualifies as a "serious health condition" for FMLA purposes. Yet, chart notes from the Internal Medicine Clinic identify Plaintiff's chief complaint as a "cold." (Rec. Doc. # 12, Ex. 1). The impression of Dr. Mary Drummond states that Plaintiff suffered an "upper respiratory infection." (Id.) Plaintiff was given a celestone injection, Z-Pack and prescribed cough medication. (Id.). There no indication that Plaintiff had "the flu," nor is there any instruction from her doctor that she should not attend work or was incapacitated. Plaintiff was instructed to "call if not better by Thursday or Friday." (Id.). There is no indication in the record that Plaintiff called or revisited the clinic to obtain continuing treatment, because she remained ill. In fact, Plaintiff returned to work on Thursday, February 17, 2000. (Id. at 7).
Celestone" is an anti-inflammatory corticosteroid. See Physician's Desk Reference ("PDR"), 49 ed. 1995) at 2244.
"Z-Pack" is a trade term for zithromax, a brand name of azithromycin, indicated for treatment of respiratory infections due to bacterial infection. See id., at 324 1881-83.
In order to satisfy the threshold burden for coverage under the FMLA, a plaintiff must establish that she suffered from a "serious health condition." The existence of a "serious health condition under the FMLA is a legal question that a plaintiff may not avoid simply by alleging it to be so." Carter v. Rental Uniform Serv., 977 F. Supp. 753, 761 (W.D. Vir. 1997). The term "serious health condition" is defined in relevant part as "an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider." See Seaman v. CSPH, Inc., 179 F.3d 297, 302 (5th Cir. 1999) citing 29 U.S.C. § 2611 (11).
First, Plaintiff contends that her "bout with the flu" qualifies as a "serious health condition" if it "results in an absence of three of more days and if a health care provider is involved." (Rec. Doc #12 at 6). In support of this proposition, Plaintiff inaccurately cites 29 C.F.R. § 825.114(a)(2)(i)(B), which states in relevant part, "continuing treatment by a health care provider . . . involving . . . a period of incapacity . . . of more than three consecutive calendar days." Id. (emphasis added). First, the statute requires an absence of at least four consecutive days, which Plaintiff, by her own admission, has failed to meet. (Rec. Doc. #12 at 7). Second, the statute requires incapacity not merely an absence from work. See Murray v. Red Kap Indus., Inc., 124 F.3d 695, 698-99 (5th Cir. 1997) (applying the four day requirement of incapacity to reject FMLA claim where Plaintiff failed to demonstrate incapacity for the requisite consecutive period); Price v. Marathon Cheese Corp., 119 F.3d 330, 334-35 (5th Cir. 1997) (adhering to the regulatory requirement of more than three days of incapacity and finding that merely remaining at home due to illness was insufficient evidence that absence was due to incapacity or medically necessary).
Second, Plaintiff contends that a "serious health condition" is also defined by 29 C.F.R. § 825.114(a)(2)(i)(B) as "treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider." (Rec. Doc #12 at 6). And that a regimen of continuing treatment, "'includes, for example, a course of prescription medication (e.g. , an antibiotic).'" (Id. citing § 825.114(b)). Again, Plaintiff has parsed the statute in error. A "serious health condition" under the FMLA does not exist simply because an individual seeks treatment and is prescribed medication. Rather, it is predicated on an illness or injury that results in incapacity, of which treatment by a regiment of medication is one of several defining characteristics. See § 825.114(a)(i) ("serious health condition . . . means an illness, injury, impairment, or physical or mental condition that involves . . . treatment by a health care provider. . . ." Id.). Treatment alone does not evidence the condition.
Plaintiff has failed to establish the she was absent for more than three days and that her absence was the result of an incapacity. Therefore, "the flu" that she complains of cannot constitute a "serious health condition" as defined by the FMLA.
2. "Spells"
Plaintiff's original argument that her "spells" qualified as a "serious health condition" under the FMLA is equally unpersuasive. The regulations indicate that a "serious health condition" also includes "a period of incapacity or treatment for incapacity due to a chronic health condition." 29 C.F.R. § 825.114(a)(2)(iii). A "chronic health condition" is further defined as one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity(e.g. , asthma, diabetes, epilepsy, etc.).Id. Regardless of whether Plaintiff's "spells" were the result of a physical or mental condition, they never resulted in a period of incapacity required by the statute. Although Plaintiff was taken to the Emergency Room after her first "spell" in 1996, after subsequent "spells" she simply left work and went home to rest for the remainder of the day, even though she stated that she was fine to return to work after resting briefly in the computer room. (Rec. Doc. #11, Ex. A at pp. 48, 18-19). Further, Plaintiff admittedly ceased seeking treatment for her "spells" more than one year before her employment was terminated. (Id. at 61, 78-79, 108).
The Court is satisfied that the "spells" suffered by Plaintiff and described by her own testimony do not give rise to a "serious health condition" as defined by the FMLA. Plaintiff was admittedly not incapacitated for more than approximately 10-15 minutes per month and was never treated for incapacity. (Id. at pp. 48, 17-20). Because Plaintiff has failed to establish incapacity as a result of her "spells," no cognizable claim exists under the FMLA. See Laughlin v. Cardiovascular Inst. of the South, 2000 U.S. Dist. LEXIS 9586 (2000) at * 11; Bond v. Abbott Lab., 7 F. Supp.2d 967, 973 (N.D. Ohio 1998) citing Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1164 (N.D. Ohio 1997) ("If a plaintiff cannot show that he or she had a condition that incapacitated him or her, "the court's inquiry is over and summary judgment is appropriate.'").
V. Conclusion
After review of the motions, the memoranda and exhibits submitted, the applicable law, and the case record, the Court finds that there is no genuine issue as to any material fact in this case. All evidence supports the conclusion that neither illness, "the flu" nor the "spells" qualifies as a "serious health condition" pursuant to the FMLA. Therefore, CPB is entitled to judgment as a matter of law.
Accordingly, IT IS ORDERED that Defendant Central Progressive Bank's motion for summary judgment is hereby GRANTED.