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/Appellant, )

)

VS. ) C.A. No. 02A01-9805-CH-00145

)

SHELBY COUNTY GOVERNMENT )

)

 Defendant/Appellee. )

)

______________________________________________________________________________

From the Chancery Court of Shelby County at Memphis.

Honorable Neal Small, Chancellor 

Sandra C. Isom, DOWDEN, ZDANCEWICZ & CAMP, Memphis, Tennessee

Attorney for Plaintiff/Appellant.

Dedrick Brittenum, Jr.,

Steven C. Brammer,

FARRIS, MATHEWS, BRANAN & HELLEN, P.L.C., Memphis, Tennessee

Attorney for Defendant/Appellee. 

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

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

HIGHERS, J.: (Concurs)

Plaintiff Victor Austin appeals the trial court’s summary judgment which dismissed
his claim for wrongful discharge against Defendant/Appellee Shelby County Government. As

pertinent to this appeal, Austin’s wrongful discharge claim was based upon the provisions of the

Tennessee Human Rights Act, Title VII of the Civil Rights Act of 1964, and the Family and Medical

Leave Act. We affirm the trial court’s judgment based on our conclusion that, even when viewed

in the light most favorable to Austin, the evidence fails to support his wrongful discharge claim.

Austin initiated these proceedings in January 1995 by filing a complaint against

Shelby County Government and Guy Bates, in his official capacity as the Shelby County Register.

In his complaint, Austin alleged that, on January 28, 1994, Bates unlawfully dismissed Austin from

his employment as a deputy clerk in the Shelby County Register’s Office. Although inartfully

drafted, in essence, Austin’s complaint asserted that his dismissal violated the Tennessee Human

Rights Act and several federal statutes, including Title VII of the Civil Rights Act of 1964, the

Americans with Disabilities Act, and the Family and Medical Leave Act. The complaint also

asserted that Bates’ dismissal of Austin constituted outrageous conduct, but it failed to set forth facts

supporting such a claim. Austin later amended his complaint to allege that, in dismissing Austin,

the Defendants acted 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 motion for summary judgment as to all claims against it.

In December 1997, the trial court entered an order granting the motion and dismissing all claims

against the County.

On appeal, Austin challenges only the trial court’s dismissal of his claims brought

pursuant to the Tennessee Human Rights Act (THRA), Title VII of the Civil Rights Act of

1964 (Title VII), and the Family and Medical Leave Act (FMLA). 

Summary judgment is appropriate only when the parties’ “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.” 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 required to consider the question in the same

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

strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable

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. The United States

Court of Appeals for the First Circuit recently set forth the background of the FMLA and

summarized its provisions:

“The FMLA was enacted to help working men and women balance

the conflicting demands of work and personal life. It does so by

recognizing that there will be times in a person’s life when that

person is incapable of performing her duties for medical reasons.”

Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997).

The twin purposes of the FMLA are to “balance the demands

of the workplace with the needs of families” and “to entitle

employees to take reasonable leave for medical reasons.” 29 U.S.C.

§ 2601(b)(1) & (2). Among the findings prompting the Act was

Congress’s belief that “there 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 contains 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 employee has “a serious health

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 close

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 return to the same position or an alternate

position with equivalent pay, benefits, and working conditions, and

without loss of accrued seniority. 29 U.S.C. § 2614(a)(1); 29 C.F.R.

§§ 825.100(c) (1997). . . .

These rights are essentiallyprescriptive, “set[ting] substantive

floors” for conduct 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 creating the above entitlements, the FMLA

provides protection in the event an employee is discriminated against
for exercising those rights. See 29 U.S.C. § 2615(a)(1) & (2); 29

C.F.R. § 825.220 (1997). In particular, “[a]n employer is prohibited

from discriminating against 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 factor in employment actions, such as

hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c).

For any such violation, the employer is subject to a claim for

compensatory damages and, unless the court finds the violation

occurred in good faith, additional liquidated 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 this case is whether 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 serious 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 lay or medical testimony that the plaintiff’s

health condition rendered him unable to perform the functions of his job. See Brannon v. Oshkosh

B’Gosh, Inc., 897 F. Supp. 1028, 1037 (M.D. Tenn. 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 fromwork. Austin suffers from hypertension.

On December 21, 1993, Austin visited the Shelby County employees health clinic. After examining

Austin, the clinic’s staff sent him home for the day. Consequently, Austin returned to the Register’s

Office and informed administrative assistant Hazel Bills that he needed to leave work that day

because of sickness. Hazel Bills, 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 beginning, Bates authorized Austin to stay off work due to his illness. What was
disputed, 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 affidavit, Austin

advised administrative assistant Hazel Bills and another Register’s Office employee, Sherrie

Morgan, as to why he was still absent from work during the period from December 22, 1993,

through January 12, 1994. Austin claimed that, on several 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 Bates, provided by deposition, tended to support Austin’s

claim that he had some contact with the Register’s Office during his absence. Nevertheless, Joe

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 Register’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 Hazel 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 the functions of his position. On January 13,

1994, in an apparent attempt to document his absences from work, Austin provided the Register’s

Office with an FMLA certification 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, however, conspicuously 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 physician certified that 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 form, Austin did not return to work prior to his

termination on January 28, 1994.

After reviewing the foregoing evidence, we conclude that the trial court properly

granted the County’s motion for summary judgment as to Austin’s FMLA claim. The record reveals
1Although 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 high level.

2

In affirming the trial court’s dismissal of Austin’s FMLA claim, we do not mean to

suggest that hypertension or high blood pressure could never be considered a serious health

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 left work because of unspecified problems1

 associated with his hypertension.

The record also reveals that Austin did not return to work prior to his termination from employment

over six weeks later. The record fails to reveal, however, that Austin’s hypertension rendered him

unable 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 hypertension’s effect 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 functions of his job. Under these circumstances, the evidence is insufficient to create

a genuine issue of material fact as to whether Austin suffered from a serious health condition which

entitled him to FMLA leave.2 See Brannon 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

failed to advise plaintiff to remain off work and, in fact, provided plaintiff with “certificate to return

to work or school”); see alsoGudenkauf 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 indicated that plaintiff did not request written

authorization to take leave and where physician did not note any conditions 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 Bates and the County fired Austin in retaliation for engaging in activity that

was protected by the THRA and Title VII.
3The 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 engaged was a prior lawsuit wherein Austin challenged his dismissal from the

Shelby County Register’s Office under 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 for 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 Shelby 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

ninety days suspension without pay and six months probation. Id. Although the Chancery Court

later reversed the Board’s decision, 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 appeal.

The THRA was enacted in 1978 to assure “that Tennessee has appropriate legislation

prohibiting discrimination 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) (1991); 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 employment 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

investigation, proceeding or hearing” under the THRA. T.C.A. § 4-21-301(1) (1991). Title VII

contains a similar prohibition, making it an unlawful employment practice for an employer to

discriminate against an employee who “has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.A. § 2000e-3(a)
4Cf. Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn. 1984) (recognizing 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 pursuant to the provisions of THRA

or Title VII, a plaintiff must prove the same four elements: (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 defendant thereafter took an employment action adverse to the

plaintiff; and (4) that a causal connection existed between the protected activity and the adverse

employment action. Newsom v. Textron Aerostructures, 924 S.W.2d 87, 96 (Tenn. App. 1995).

The record in the present case contains no evidence that Austin was fired for engaging

in activity protected 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 exercise 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 this

court’s prior opinion nor the record in the present case supports Austin’s contention that his

participation in the previous litigation constituted activity that was protected by the THRA or

Title VII. Accordingly, we can find no evidence that Austin participated in any manner in any

investigation, proceeding, or hearing under either statute.

Even if we were to assume, for purposes of this appeal, that Austin has stated a claim

for retaliatory discharge by alleging that he was discharged for exercising his rights under the Civil

Service Merit System,4 we still would affirm the summary judgment entered in the County’s favor.

Regardless of which constitutional, statutory, 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 protected rights was causally related to his subsequent discharge. Mason v.

Seaton, 942 S.W.2d 470, 473 (Tenn. 1997) (Tennessee Public Protection Act, also known as

“whistleblower” statute); Anderson v. StandardRegisterCo., 857 S.W.2d 555, 558-59 (Tenn. 1993)

(Tennessee Workers’ Compensation Law); Newsom v. Textron Aerostructures, 924 S.W.2d 87, 96

(Tenn. App. 1995) (THRA). A plaintiff may meet this requirement by presenting direct evidence
of a causal link, such as where the employer was acting pursuant to an established policy or where

the employer admitted the reason for the termination, or by presenting compelling circumstantial

evidence. Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 293 (Tenn. App.

1992). The plaintiff cannot 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 very short. Mason v. Seaton, 942 S.W.2d 470, 473

(Tenn. 1997) (six days); Conatser 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 work to his chief administrative officer, Joe Reves. Bates explained that

he made this delegation because he “didn’t want to mess with 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 insufficient 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 Austin was not discharged until January 1994, a period of five and onehalf years later. In our view, the prior litigation was simply too remote in time to support an

inference that the two events were causally related. Moreover, under existing case law, even if the

interval between the prior litigation and the subsequent discharge was much shorter, this

circumstance alone would not constitute the compelling circumstantial evidence needed to support

Austin’s retaliatory discharge claim.

As for the negative comments made by Guy Bates in his deposition, even if these

comments demonstrated a personal animus toward Austin, we note that the law did not prohibit

Bates from disliking his employees. As pertinent 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 conclusion 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 merely by asserting in a conclusory manner that the nonmoving party has no evidence

to support its claim. Id. In appropriate cases, however, where the parties have had the opportunity

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 demonstrating that, even if the facts are viewed in the light most

favorable to the plaintiff, he still cannot establish an essential element of his claim. See Caledonia

Leasing & Equip. Co. v. Armstrong, Allen, Braden, Goodman, McBride & Prewitt, 865 S.W.2d

10, 13 (Tenn. App. 1992); see also Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. App. 1998)

(explaining that failure of proof on essential element of claim necessarily renders all other facts

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

The trial court’s judgment is affirmed, and this cause is 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. (Concurs)