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 ap peals 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 Caucasian2

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 pr esaged

trouble to come is an issue in this appeal. In December of 1994,

Sutton gave Boyd his a nnual Performance Planning and Review

Eva luation (“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

r efused 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 contended3

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 a s 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 Farminformed 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 c ertification, 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 ac tion. At the time of his termination, Boyd had

been classified as AWOL for ten day s. Shortly before and after

State Farm fired Boyd, it had also terminated Lisa Bitters, a4

Cau casian 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 electe d 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 d e

novo

. W alton v. Bisco Industries

, 119 F.3d 368, 370 (5th Cir.

1997). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admi ssions 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. 7925

(1973). In the context of summary judgment, a substantial conflict

in evidence must exist to cre ate a jury question on the issue of

discrimination. R hodes 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 whet her each of the employer’s

stated reasons wa s 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. W alton

, 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 t o 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 orga nization, communication, and

project planning. Finally, State Farm emphasized that Boyd never6

challenged the accuracy of the PP R, 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 contend ed 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 becau se 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 race1 "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. S ee D aniels

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. Sup p. 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); R ay v. Tandem Computers

, 63 F.3d 429, 435 (5th Cir. 1995) (single comment too re mote to

infer discrimination); G uthrie 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 motivated State Farm’s decision not to promote him, the u ltimate

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.” R hodes

,

7 5 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. A nderson v. Douglas & Lomason Co., Inc.

, 26 F.3d

1277, 1295 (5 th Cir. 1994). 2 Second, the alleged “Porch Monkey”3 The district court applie d 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 comment and the other r emarks 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 beco me stray remarks that

cannot support a discrimination verdict. R ay 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

“Buckwh eat” comment, provides no proof from which a reasonable

juror could infer discrimination in the failure to promote claim. 3

Timing standing alone is not suff icient 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

considera bly 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. W allace 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.4 We apply the sam e 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 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 f or 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

offer ed 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 similarlysituated employees outside of plaintiff’s p rotected class were10

treated diffe rently may assist in establishing the prima facie

case. W alton

, 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 employee s 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 mater ial question of fact that Boyd’s termination was

motivated by racial animus. The district court’s grant of summary

judgment on Boyd’s discri minatory 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 physicia ns, 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 the5 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 profes sional opinion that Mr.

Boyd’s health conditi on 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 pr oblems. 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 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 f ormed

contemporaneously with the event s at issue. The district court

further stated that the affidavit provide d 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 court12

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. AlliedSignal Co.

, 939 F.2d 1106, 1109 (5th Cir. 1991) (en banc). We have

p reviously rejected the argument that, in the context of summ ary

judgment, Fed.R.Evid. 705 does not require an expert’s affidavit to

contain factual support for the opinion expressed therein.

Slaugh ter 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 his13

credentials and a subjective opinion, an expert’s testimony that a

medical condition simply “is so.” is not admissible. H ayter v.

City of Mount Vernon

, No. 9 8-40071, 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 tha t 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 practica ble under the particular

circumstances to do so desp ite 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 he14

reviewed immediately before requesting leave from work. Moreover,

State Farm urged Boyd several times by p hone 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 res ponded 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 reque st, 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 present ed here. The district court’s grant of15

summary judgment on the FMLA clai m 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.