# FILED February 25, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) VICTOR AUSTIN , ) Shelby County Chancery Court ) No. 105202-1 R.D. Plaintiff/Appella

nt, ) ) VS. ) C.A. No. 02A01-9805-CH-00145 ) SHELBY COUNTY GOVERNMENT ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery

Court of Shelby Count

y at Memphis. Honorable Neal Small, Chancellor

Sandra C. Isom , DOWDEN, ZDANCEWICZ & CAMP, Memphis, Tennessee Attorney for Plain

tiff/Appellant. Dedrick Brittenum, Jr. , Steven C. Brammer , FARRIS, MATHEWS, BRANAN & HELLEN, P.L.C., Memphis, Tennessee Attorney for Defendant/Appellee.

OPINION FILED: AFFIRMED AND REM ANDED FARMER, J. CRAWFORD, P.J.,W

.S. : (Concurs) HIGHERS, J. : (Concurs)

Plaintiff Victor Austin

appeals the trial court’s summary judgment which dismissedhis claim for wrongful discharge against Defendan t/Appel lee Shelby County Government. As pert inent to this appeal, Austin’s wrongful discharge claim was based upon the provisions of th e Tennessee Human Rights Act, Ti tle VII of the Civil

Rights Act of 1964, and the Family and Medical Leave Act. We a

ffirm the trial co

urt’s judgment bas

ed on our conclusi

on that, even when viewed in the light most favo

rable to Austin, the

evidence fails t

o support his wrongf

ul discharge cla

im.

Austin initiated these pr

oceedings in Janu

ary 1995 by filin

g a complaint again

st Shelby County Government and G uy Bates, in his

official capacity as the Shelby County Register. In his complaint, Austi

n alleged that, on January 28, 1994, Bates unlawfully dismissed Austin from his employment as a de

puty clerk in the She

lby County

R egister’s Offic

e. Although inartf

ully drafted, in essence, Austin’s complaint asserted that his dismissal violated the Te nnessee H uman Rights Act and several

federal statute

s, including Title VI

I of the Civil Rights Ac

t o f 1964, the Americans with Disabilities Act, and the Family and M edical Leave Act. The complain t also asserted that Bates’ dismissal of Austin constituted outrageous condu ct, but it failed to s

et forth facts supporting such a claim. Austi n later amended h

is complaint to allege that, in dismissing Austin, the Defendants act ed negligently, breached their covenant of good faith and fair dealing, and violated the Shelby County Employees Handbook. Austin’s complaint sought compensatory and punitive damages and other relief.

In June 1997, the trial court entered an order dismissing Defendant Guy Bates from this lawsuit. Relying on various affidavits and discovery materials,the remaining defendant, Shelby County Government, subsequently filed a motionfor summary judgment as to all cl aims against it. In December

1997 , the trial court e

ntered an order

granting the motion

and dismissing all cl

aims against the County.

On appe al, Austin

challenges only the trial court’s dismissal of his claims brought pursuant to the Tennessee

Human Rights Act (T

HRA), Title VII of

the Civ il Rights A ct of 1964 (Title VII), and the Family and Medical Leave Act (FMLA).

Summary judgment is app rop riate only when th e parties’ “ple

adings, depositions , answers to interrogatorie

s, and admissions on file, together with the affidavits, if any, show that thereis no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R.C.P. 56.04. In determining whether or not a genuine issue of material fact exists for purposes of summary judgment, the trial court is req uired to consider

the question in the s

ame
manner as a motion for directed verdict made at the close of the plaintiff’s proof. Byrd v. Hall, 847 S. W.2d 208, 210 (Tenn. 1993). That is, the trial court, and this court on appeal, “must take the stronge st legitimate view of

the evidence in f

avor of the nonmov

ing party, allow a

ll reaso nabl e inferences in favor of that party, and discard all countervailing evidence.” Id . at 210-11.

With this standard in mind, we first address Austin’s FMLA claim. Th e United States Courtof Appeals for th e First Circuit rec

ently set forth

the backgr ound of the FMLA and summarized its pro

visions:

“The FMLA was enacted to help wo rking m en and women balance the confli cting dem ands of work and personal life. It does so by r ecognizing that there will be times in a person’s life when t ha t person is incapable of performing her duties f or medical reasons.” Price v. City of For

t Wayne , 117 F.3d 1022, 1024 (7th Cir. 1997). The twin purposes of the FMLA are to “balance the demands of the wor kplace with the ne eds of families” a

nd “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1) & (2). A mong the findings prompting the Act was Congress’s belief that “ther e is inadequate

job security for

employees who have serious health conditions that prevent them from working for temporary periods.” 29 U.S. C. § 2601(a)(4). The FMLA seeks to accomplish its purposes “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3). The FMLA contain s two distinct types of provisions. First, it creates a series of

substantive rights.

Eligible employees “shall be entitled” to up to twelve weeks of unpaid leave per year for any one of the following purposes: when the employeehas “a serious he alth condition that makes [him or her] unable to perform the functions of [his or her] position,” 29

U.S.C. § 2612(a)(1 )(D); to care for a clos

e family member with such a condition, 29 U.S. C. § 2612(a)(1)(C); or because of the birth, adoption, or placement in foster care of a child, 29 U.S.C. § 2612(a)(1)(A) & (B). . . . Following a qualified absence, the employee is entitled to retur n to the same

position or an alte

rnate position with equivalent pay, benefits, an d working conditions, and withoutloss of accrued s

eniority. 29 U.S.C.

§ 2614(a)(1); 29 C.F.R. §§ 825.100(c) (1997). . . . These ri ghts are essentially pres criptive, “set[ting] substantive floors” fo r co nduct by employers, and creating “entitlements” for employees. Diaz v. Fort Wayne Foundry Corp. , 131 F.3d 711, 712- 13 (7th Cir. 1997). . . . In addition to creat

in g th e above entitlements, the FMLA provides protection in the event an employee is discriminatedagainstfor exercising those rights. See 29 U.S.C. § 2 61 5(a)(1) & (2); 29 C.F.R. § 825.220 (1997). In particular, “[a]n employer is prohibited from discriminating a ga inst employees . . . who have used FMLA leave.” 29 C.F.R. § 825.220(c). Nor may employers “use the taking of FMLA leave as a negative fact or in employment ac

tions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). For any such violation, the employer is subject to a cl aim f or compensatory damages and, unless the court finds the vi olation occurred in good faith, addit

ional l iquidat ed damages. 29 U. S.C. § 2617(a)(1)(A). These provisions are essentially proscriptive.
Hodgens v. General Dynamics Corp. , 144 F.3d 151, 159-60 (1st Cir. 1998) (footnotes omitted).

As we see it, the determinative issue in thi s case is whe ther the record contains evidence to support Austin’s claim that he was entitled to FMLA leave because he suffered from a “serious health condition.” In order to be entitled to FMLA leave based upon this provision, the plaintiff must suffer from a s erio us health condition which makes him “unable to perform the functions of [his] position.” Oswalt v. Sara Lee Corp. , 74 F.3d 91, 92 (5th Cir. 1996) (quoting 29 U.S.C. § 2612(a)(1)). In defending an action brought pursuant to the FMLA, therefore, an employer will be entitled to summary judgment in the absence of layor medical testimony that the plaintiff’s health condition rendered him una ble to perform the

functions of his

job. See Brannon v. Oshkosh B’Gosh, Inc. , 897 F. Su pp. 1028, 1037 (M.D. Te nn. 1995); see also Gudenkauf v. Stauffer Communications, Inc. , 922 F. Supp. 465, 475-76 (D. Kan. 1996).

The depositions and affidavits filed in this case revealed the following circumstances surrounding Austin’s health condition and his absence from work. Aus tin suffers from hypertension. On December 21, 19

93, Austin visited the

Shelby County employe

es health clinic. After examining Austin, the clinic’s staf

f sent him home for t

he day. Consequen

tly, Austin returne

d to the Register’s Office and informed administrative assistant Hazel Bills that he needed to leave work that day because of sickness. HazelBills, in turn, informed the Shelby County Register of Deeds, Guy Bates, that Austin needed to leave work to go see his private physician. After speaking to a clinic nurse, Guy Bates gave his permission for Austin to leave work that day.

In the summary judgment proceedings below, the evidence was undisputed that, at least in the beginni ng , Bates authorized Austin to stay off work due to his illness. What wasdisputed, however, was whether Austin requested additional time off

work due to his hypertension and whether such leave was approved by the Register’s Office. According to his a ffidavit, Austin advisedadminis trative a ssistant Hazel Bills and another Regis

ter’s Office e

mployee, Sherrie Morgan, as to why he was stil l absent f rom w ork during the period from December 22, 1993, through January 12, 1994. Austin claimed that, onseveral occasions, he attempted to advise Bates why he was still absent from work, but Bates would not agree to speak to him.

The testimony of Guy Bat es, provided by de

posit ion, tended to support Austin’s claim that he had some co

ntact with the Regis

ter’s Office du

ring his absence.

Nevertheless, J

o e Reves, the chief administrative officer who handled all personnel matters in the Register’s Office, insisted that Austin’s absence from work during the period from December 22, 1993, to January 27, 1994, was “unauthorized and unrequested.” In an affidavit, Reves stated that neither he, Bates, nor any other R egist er’s Office employee was contacted by Austin with regard to his absences from work on at least ten work days during this period, including December 22, 23, 28, 29, and 31, 1993, and January 5, 7, 10, 11, and 12, 1994.

Although Austin informed office staff, such as Ha zel Bills, that he suffered from high blood pressure, according to Joe Reves, Austin never indicated to anyone in the Register’s Office that this health condition made him unable to perform thefunctions of his position. On January 13, 1994, in an apparent atte

mpt to document his

absences from work, Austin provided the Register’s Office with an FMLA cert ification form signed by his personal physician. The certification form confirmed

that Austin was suffering from hypertension, set forth the drug regimen prescribed by the physician, and indicated that the probable duration of Austin’s condition was “undetermined.” The form, howev er, consp icuously failed to indicate in the space provided that it was medically necessary for Austin to be off work for any period of time. In fact, the physi cian certified t

hat Austin was able to perform the functions of his position. The record does not explain why, after presenting the Register’s Office with the FMLA certification f orm, Austin did not retur n to work prior to his termination on January 28, 1994.

After reviewing the foregoing evidence, we conclude that the t rial cour t properly grantedthe County’s motion for summary judgment as to Austin’s FMLA claim. The record reveals1 Although the evidence in the record does not make clear what these problems were,

Austin’s complaint asserted that the clinic staff instructed him to go home because his blood pressure was at

a dangerously hig

h level.
2 In affirming the t

rial court’s dismis sal of Austin’s FMLA claim, we do not mea

n to suggest that hyper

tension or high blood

pressure could n

ever be conside

red a serious hea

lth condition. See, e.g. , Oswalt v. Sara Lee Corp. , 74 F.3d 91, 92-93 (5th Cir. 1996) (wherein court concluded that high blood pressure could be considered “serious health condition” when plaintiff allegedly missed period of work due to side effects of high blood pressure medication, but court refused to apply FMLA’s provisions retroactively). that Austin initially

le ft work because

of unspecified pr

oblems 1 associated with his hypertension. The record also rev

eals that Austin did not re turn to work prior to his termination from employment
over six weeks later. The reco rd fails to reveal, howeve

r, that Austin’s hyp

ertension rende

red him
un able to perform the functions of his job so as to entitle him to FMLA leave. Absent from the record is any testimony or sworn statements by Austin as to the hype rtension’s effe

ct on his ability to work. Moreover, the only medical evidence in the record, the FMLA certification form signed by Austin’s personal physician, failed to indicate that Austin’s condition would require him to miss any periods of work. In

fact, the certification form affirmatively indicated that Austin was able to perform the func

tions of his job. Unde

r these circumsta

nces, the eviden

ce is insufficien

t to create
a genuine issue of ma

terial fact as to

whether Austin

suffered from a serious health condition which entitled him to FMLA leave. 2 See B rannon v . Oshkosh B’Gosh, Inc. , 897 F. Supp. 1028, 1037 (M.D. Tenn. 1995) (holding that plaintiff’s absences were not protected by FMLA where physician failedto advise plaintiff

to remain off work

and, in fact, provided plaintiff with “certificate to return to work or

school”); see also Gudenkauf v. Stauffer Communications, Inc. , 922 F. Supp. 465, 475- 76 (D. Kan. 1996) (holding that plaintiff’s absences were not protected by FMLA, despite her assertions of inability to work, where physician ind icated th at plaintiff did not request written authorization to take leave and where physician

did not note any con

dit io ns which would have impaired plaintiff’s ability to work).

We next address Austin’s contention that the trial court erred in dismissing

his claim for wrongful discharge under the THRA

and Title VII. Specifically, Austin contends that the trial court erred in granting the County’s motion for summary judgment on this claim because the record contains evidence that Ba tes and the County

fired Austin

in retaliation for engaging in activity that was protected by the THRA and Title VII.3 The THRA includes two additional terms, creed and age, but this difference does not

impact our analysis of the issues in this case. T.C.A. § 4-21-401(a) (1991).

We conclude that this argument is without merit. The alleged “protected activity” in which Austin enga

ged was a prior la

wsuit wherein Aus

ti n challen ged his dismissal from the Shelby County Register’s Office un der the Civil Service Merit System. See Austin v. Shelby County Gov’t , 761 S.W.2d 298 (Tenn. App. 1988). The dispute in that case began when Guy Bates admonished Austin f

or failing to

button his collar and pull up his tie as required by the Register’s Office dress code. Austin , 761 S.W.2d at 299. Thereafter, the two men engaged in a yelling match, and Austin was fired for insubordination. Id . Austin appealed his

discharge to the Sh

elby County Civil Service Merit Board, which found that Austin was guilty of insubordination but that termination was too severe a punishment. Id . at 298. The Board modified Austin’s punishment to ninetydays suspension without pay and six months probation. Id . Although the Chancery Court later reverse

d the Board’s dec

ision, this court ultimately reinstated the Board’s ruling. Id
. at 300. The litigation ended on July 18, 1988, when our Supreme Court denied the County’s application for permission to appe

al.

The THRA was enacted in 1978 to assure “that Tennessee

has appropriate

legislation prohi biting disc rimination in employment, public accommodations and housing” and to provide “for execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972” and other federal acts. T.C.A. § 4-21-101(a) (1 991); accord Eason v. Memphis Light, Gas & Water Div. , 866 S.W.2d 952, 955 (Tenn. App. 1993) . Like Title VII of the Civil Rights Act of 1964, the THRA prohibits employers from engaging in discriminatory e mployment practices because of an individual’s race, color, religion, sex, or national origin. See T.C.A. § 4-21-401(a) (1991); 42 U.S.C.A. § 2000e-2(a) (West 1994). 3

The THRA also prohibits employers from retaliating against an employee who “has made a charge, filed a complaint, testified, assisted or participated in any manner in any i nvestigation , proceeding or hearing” under the THRA. T.C.A. § 4-21-301(1) (1991). Title VII contains a similar prohibiti on, making it an unla wful employment pr

actice for an e

mployer to discriminate

against an employee who “has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or he aring” under Title VII. 42 U.S.C.A. § 2000e-3(a)4 Cf
. Clanton v. Cain-Sloan Co. , 677 S.W.2d 441, 445 (Tenn. 1984) (re

cognizing cause of action for retaliatory discharge where plaintiff was terminated for exercising her rights under Tennessee Workers’ Compensation Law). (West 1994). Whether a retaliatory discharge claim

is brought pursuan

t to the provisions of TH

RA
or Title VII, a plain

tiff must prove the

same four eleme

nts : (1) that the plaintiff engaged in an activity protected by the statute; (2) that the defendant

had knowledge of the plaintiff’s exercise of protected activity; (3) that the de fendant thereafter took an employment action adverse to the plaintiff; and (4) that a causal connection existed between the protected a ctivity and the adverse employment action. Newsom v. Textron Aerostructures , 924 S.W.2d 87, 96 (Tenn. App. 1995).

The recor d in the p resent case contains no evidence that Austin was fired for engaging in activity protecte

d by the THRA or Title

VII. This court’s opinion, filed on May 2, 1988, reveals that the nature of Austin’s previous litigation was the exercis e of his rights under the Civil Service Merit System. Austin , 866 S.W.2d at 298-99. The dispositive issues there were whether material evidence existed to support the finding that Austin was insubordinate and whether the Board abused its discretion in modifying the sanctions imposed by the Register’s Office. Id . at 300. Neither t his court’s prior opinion nor th e record in the pr

esent case suppo

rts Austin’s conte

ntion that his participati

on in the previous litigation constituted activity that was protected by the THRA or TitleVII. Accordingly , we can find no evidence that Austin participated in any manner in any investigation, proceeding, or hearing under either statute.

Even if we wereto assume, for pur poses of this appea

l, that Austin

has stated a clai

m for retaliatory discharge by alleging that he was discharged for exercising h

is rights under the Civ

il Service Merit System, 4 we still would affirm the summary judgment entered in

the County’s favor. Regardless

of which constituti

onal, sta tutory, or regulatory policy an employer is alleged to have violated, in order

to maintain an action for retaliatory discharge, a plaintiff must present evidence that his exercise of p

rotected rights w

as causally rela

ted to his subsequen

t disc harge. Mason v. Seaton , 942 S.W.2d 470, 473 (Tenn. 1997) (Tennessee Public Protection Act, also known as “whistleblower” statute); Anderson v. Sta ndard Register Co . , 857 S.W.2d 555, 558-59 (Tenn. 1993) (TennesseeWorkers’ Compen sation Law); Newsom v. Textron Aerostructures , 924 S.W.2d 87, 96 (Tenn. App. 1995) (THRA). A plaintiff may meet this requirement by presenting direct evidenceof

a causal link, such as where the employer was acting pursuant to an established policy or where the employer admitted

the reason for th

e termination, or b

y presenting compe

lling circums

tantial evidence. Thomason v. Better-Bilt Aluminum Prods., Inc. , 831 S.W.2d 291 , 293 (Tenn. App. 1992). The plaintiff c anno t meet this burden, however, merely by showing that the plaintiff’s participation in protected activity was followed by a discharge from employment, even where the proximity in time between the two events is ver y short. Mason v. Seaton , 942 S.W.2d 470, 473 (Tenn. 1997) (six days); Conats er v . Clarksville Coca-Cola Bottling Co. , 920 S.W.2d 646, 648 (Tenn. 1995) (three days).

During his deposition, Guy Bates testified that he delegated the problem of Austin’s continued absence from wo rk to his chief adm

in istrative officer, Joe Reves. Bates explained that he made this delegat

ion because he “

didn’t want to mess w

ith Victor” and he “

never could

talk with the man.” On appeal, Austin contends that these negative comments, coupled with the record of the prior litigation, constituted circumstantial evidence that his discharge from employment in January 1994 was causally related to the 1988 litigation.

We conclude that this evidence was ins ufficient to support Austin’s claim for retaliatory discharge based upon his participation in the prior litigation. The prior litigation was concluded

in July 1988, and Aus

tin was not discharged until January 1994, a period of five andonehalf years later. In

our view, the prio

r litigation was simp

ly too remote in

time to su pport an inferencethat the two events were causally related. Moreover, under existing case law, even if the interval between the prior litigation and the subsequent discharge w as much s horter, this circumstancealone would not constitute the compelling circumstantial evidence needed to support Austin’s retaliat

ory discharge c

laim.

As for the negative comments made b y Guy Bat es in his deposition, even if these comments demonstrated a pe rsonal animus towa

rd Austin, we note t

hat the law did not p

rohibit Bates from disliking his em ployees. As perti

nent to this case, the law

merely prohibited Bates from retaliating against his

employees for engaging in protected activity. The proof, as developed in the record, fails to support the c onclusion that Bates or any other employee of the Register’s Office retaliated against Austin for engaging in protected activity.We are mindful that the party seeking summary judgment has the initial burden of

demonstrating that there are no disputed, material facts creating a genuine issue for trial. Byrd v. Hall , 847 S.W.2d 208, 215 (Tenn. 1993). We also are mindful that the moving party cannot meet this burden merel

y by asserting in a conclusory manner that the nonmoving party has no evidence to support its claim. Id . In appropriate cases, however

, where the part

ies have had the o

pportunity to engage in discovery and to flesh out the relevant facts, a defendant moving for summary judgment may be able to meet this

burden by demonstr

ating that, even if

the facts are vi

ewed in the light mos

t favorable to the plaintiff, he

still cannot establish an essential element of his claim. See Caledonia Leasing & Equip. Co. v. Armstrong, Allen, Bra den, Goodman, McBride & Prewitt , 865 S.W.2d 10, 13 (Tenn. App. 199

2); see also Horton v. Hughes , 971 S.W.2d 957, 95 9 (Tenn. A pp. 1998) (explaining that failure of pr oof on essential e

lement of claim ne

cessa rily ren ders all other fa

cts immaterial). We believe this to be such a case.

The trial court’s judgment is affirmed, and thi s cause i s remanded for further proceedings.Costs of this appeal are taxed to Austin, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P. J., W.S. ( Concurs)

______________________________ HIGHERS, J. (Concu

rs)