UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

MITEZ T. ORMOND,

Plaintiff

v.

CTVSEH PLLC D/B/A CENTRAL 

TEXAS VETERINARY SPECIALITY 

AND EMERGENCY HOSPITAL,

Defendant

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§

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Case No. 1:20-CV-661-RP

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

Before the Court are Defendant’s Motion for Summary Judgment, filed June 30, 2021

(Dkt. 13); Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment and 

Motion to Strike, filed July 14, 2021 (Dkt. 16); Defendant’s Objections to Plaintiff’s Summary 

Judgment Response and Motion to Strike, filed July 21, 2021 (Dkt. 18); Defendant’s Reply to 

Plaintiff’s Response to Defendant’s Motion for Summary Judgement, filed July 21, 2021 

(Dkt. 19); and Plaintiff’s Response to Defendant’s Objections to Plaintiff’s Summary Judgment 

Response, filed July 28, 2021 (Dkt. 21). On August 2, 2021, the District Court referred the motions

to the undersigned Magistrate Judge for disposition and report and recommendation, pursuant to 

28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local 

Rules of the United States District Court for the Western District of Texas (“Local Rules”). 

I. Background

Plaintiff Mitez (“Mitzi”) T. Ormond brings this employment discrimination suit against her 

former employer, Defendant Central Texas Veterinary Specialty & Emergency Hospital 

(“CTVSEH”), under the Americans with Disabilities Act of 1990 (“ADA”), the Family Medical 

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Leave Act (“FMLA”), and the Texas Labor Code. CTVSEH is a Texas professional limited 

liability company that operates three animal care hospitals in the Central Texas area. 

A. Plaintiff’s Job

In October 2013, CTVSEH hired Plaintiff for the position of Accounts Receivable 

Bookkeeper; later, she was promoted to Accounts Receivable Manager. Plaintiff’s job duties 

included overseeing accounts receivables, collecting money owed from clinics, going to different 

office locations to collect funds and paperwork, and depositing funds into CTVSEH’s bank 

account. Ormond Dec. (Dkt. 16-1) ¶ 2. Dr. Stephanie Beardsley, DVM, DACS, the Chief 

Executive Officer of CTVSEH, was Plaintiff’s direct supervisor, and Hospital Relations Manager 

Kim Messenger handled human resources issues.

Plaintiff contends that she “was a salaried employee with a Flex schedule,” so that she set “my 

own schedule and was not required to be in the office at particular times.” Id. ¶ 3. Plaintiff states 

that she typically worked in person at one of CTVSEH’s locations, but “would also regularly work 

from home.” Id. Plaintiff contends that “CTVSEH never had a strict attendance and call-in 

procedure for administrative employees.” Id. ¶ 17. Plaintiff alleges that her general practice was 

to text Dr. Beardsley if she planned to work from home or take time off. Plaintiff contends that 

there were a few occasions where she did not inform Dr. Beardsley she was missing work until 

after the fact, but “[Dr. Beardsley] never seemed to care, or think I was doing something wrong.” 

Id.

In contrast, Defendant contends that Plaintiff, like all of its employees, was required to follow 

the CTVSEH attendance policy for requesting Paid Time Off (“PTO”) or a Work From Home 

(“WFH”) day which had not been approved in advance. That policy was (1) to notify Dr. Beardsley 

before the start of the business day and inform her of the employee’s reason for being out; 

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(2) confirm that essential responsibilities would be covered by a co-worker; (3) enter absence and 

contact information in the event of an emergency in the company’s veterinary practice 

management software; and (4) request PTO hours for all time missed in the CTVSEH payroll 

software system. Beardsley Aff. (Dkt. 13-5) ¶ 8.

Defendant also submitted summary judgment evidence showing that Plaintiff had excessive 

absences during 2017 and 2018. For example, during 2017, Plaintiff took 194 hours of PTO, 

exceeding her 137-hour PTO allowance for that year, and had another 99.5 hours of undocumented 

time away from the office for which she was fully paid. Dkt. 13-5 ¶ 14. Between January 1, 2018 

and July 20, 2018, Plaintiff took at least 166 PTO hours, exceeding her 88-hour hourly PTO 

allowance for 2018, and was paid for an additional 46 undocumented hours off. Id. ¶ 15. Plaintiff 

does not dispute this.

B. Plaintiff’s Health Issues

Plaintiff alleges that she has experienced various health issues “over the years,” including 

seizures and migraine headaches. Ormond Dec. (Dkt. 16-1) ¶¶ 4-5. Plaintiff was diagnosed with 

epilepsy and migraine headaches in October 2017. Id. ¶ 4; Dkt. 16-15 at 2. Plaintiff alleges that 

she is unable to work when she has migraine headaches and seizures. Ormond Dec. (Dkt. 16-1) 

¶ 5. Plaintiff alleges that she began taking medications in 2018 to control her symptoms but 

experiences serious side effects, including dizziness, sleepiness, and difficulty focusing. Id. ¶ 6.

Plaintiff alleges that Defendant was aware of her medical conditions and that she was taking 

prescription medications to control her symptoms. Id. ¶ 7. Plaintiff contends that she frequently 

discussed her migraine headaches with both Dr. Beardsley and Messenger because they also 

suffered from migraine headaches. Id. Plaintiff also contends that she provided medical 

documentation of her medical conditions to Dr. Beardsley and Messenger. Id. ¶ 8.

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Although Defendant admits that Plaintiff told Dr. Beardsley and Messenger that she suffered 

from migraine headaches, it contends it was unaware that she suffered from a “serious health 

condition.” Beardsley Aff. (Dkt. 13-5) ¶ 6-7. Defendant also disputes that Plaintiff ever provided

Dr. Beardsley or Messenger with medical documentation of her migraine headache and epilepsy

diagnoses. Id. While Defendant claims in its “Statement of Facts” that Dr. Beardsley and 

Messenger were not aware “that Plaintiff claimed to have a seizure condition before Plaintiff was 

terminated,” Dkt. 13-2 ¶ 5, Dr. Beardsley admits in her deposition that she received text messages

from Plaintiff on June 5 and June 8, 2018, informing her that Plaintiff had suffered seizures. 

Beardsley Dep. (Dkt. 13-14) 24:2-9; Dkt. 16-6 at 1, 6.

C. Plaintiff’s Termination

In the spring of 2018, CTVSEH transitioned its practice management software system from 

DVMax, which it had used for 23 years, to ezyVet. Defendant contends that all administrative 

employees were required to attend training sessions in July 2018 to learn the new software system. 

On July 18, 2018, Plaintiff arrived for a 7 a.m. mandatory training session at the South location of 

CTVSEH. Plaintiff alleges that Dr. Beardsley gave Plaintiff permission to leave the training early 

to “go about my normal Wednesday duties, traveling to the other locations to collect money and 

paperwork.” Ormond Dec. (16-1) ¶ 9. Accordingly, Plaintiff left the South location office

sometime between 7:30 a.m. and 8:45 a.m. 

Defendant contends that at approximately 8 a.m. that same day, Dr. Krista Adamovich 

approached Enma Anderson, one of Plaintiff’s co-workers, and said that she was looking for 

Plaintiff and could not find her. Anderson Aff. ¶ 8. Defendant avers that Dr. Adamovich was

concerned because she had a client (the “Client”) coming in at 10 a.m. for a recheck appointment

and no payment had been entered in the Client’s account since the Client’s previous appointment

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on June 21, 2018. Id. Plaintiff was responsible for entering payments into client accounts. 

Defendant contends that it had a strict policy of refusing to render additional services to a client if 

the client did not make any payment on his or her accounts receivable since the last appointment.

Id. ¶ 9. Therefore, Defendant contends, Anderson called Plaintiff on her cell phone at 8:30 a.m. to 

inquire about the Client’s account. Id. ¶ 10. Defendant avers that Plaintiff told Anderson that she 

would look into the matter later that day once she was able to access a computer. Because the 

Client was coming in later that morning, Defendant contends that Anderson then informed 

Operations Manager Torrey Pond and Dr. Beardsley so that they could handle the matter. 

Beardsley Aff. (Dkt. 13-5) ¶ 9.

Dr. Beardsley then checked both DVMax and ezyVet and saw that Plaintiff had not entered 

any payments in the Client’s account since the Client’s last appointment. Id.1 Dr. Beardsley called 

Plaintiff on her cell phone at 9:05 a.m. to ask why Plaintiff had not updated the Client’s account.

Id. Plaintiff alleges that she was not able to answer Dr. Beardsley immediately because she was 

driving and did not have access to a computer. Ormond Dec. (Dkt. 16-1) ¶ 10. Dr. Beardsley ended 

the call by telling Plaintiff that “if she wanted to do her job, to do it, and if not, she needed to 

decide.” Beardsley Aff. (Dkt. 13-5) ¶ 9. Plaintiff alleges that immediately after Dr. Beardsley’s 

call, she became worried that “I was being or had been fired,” and so she 

quickly researched the issue, and learned that the customer had paid 

but that the payment was not correctly recorded in CTVSEH’s 

computer system. I called someone else at CTVSEH and had them 

update the computer system to reflect the payment, then I left 

Dr. Beardsley a voicemail telling her the client had paid.

Ormond Dec. (Dkt. 16-1) ¶ 10. Defendant disputes this and contends that after getting off the call 

from Dr. Beardsley: 

1 Defendant alleges that it later discovered the Client had made an online payment sent to Plaintiff’s email 

10 days before. Beardsley Dep. (Dkt. 13-14) 119:22-120:24.

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Mitzi then called a client care team member at 9:08 a.m. and coerced 

her to add the payment information but to back date it so that it 

would appear to have been added a few days earlier. Mitzi then left 

a voicemail message for me at 9:13 a.m. and lied, saying the 

information was already in there. I knew that Mitzi had lied to me 

about the status of the client’s payment on the account because I had 

just checked it myself.

Beardsley Aff. (Dkt. 13-5) ¶ 9. Defendant further contends that because Plaintiff had never logged 

into the ezyVet software, “[Plaintiff] did not realize that one of the controls of the ezyVet software 

program is that it automatically time-stamped the entry at 9:11 a.m., after Dr. Beardsley had called 

Plaintiff,” and thus Plaintiff was unaware that Dr. Beardsley could monitor when Plaintiff accessed 

the system. Dkt. 13-2 ¶ 67 (citing Dkt. 13-36).

Regardless, Plaintiff worked the remainder of that day and took home $16,000 in CTVSEH 

cash, $14,000 in CTVSEH checks, and CTVSEH business records which, according to Defendant,

“needed to be immediately processed through the DVMax and ezyVet software programs.” 

Beardsley Aff. (Dkt. 13-5) ¶ 10. 

The next day, on Thursday, July 19, 2018, Plaintiff “took a personal day” and did not work. 

Ormond Dec. (Dkt. 16-1) ¶ 13. Plaintiff alleges that she took a personal day because she was 

having a bad headache. Id. However, Plaintiff’s text to Dr. Beardsley that morning did not mention 

a headache, stating instead: “I never heard back from you yesterday so [I] will need to take a 

personal day today.” Dkt. 13-39. Dr. Beardsley responded that she did not have time to talk to her 

but “[w]hen you come in we can talk face to face.” Id.

On Friday, July 20, 2018, Plaintiff sent Dr. Beardsley a text message asking Dr. Beardsley to 

“reconsider your decision made on Wednesday,”2that she hoped that they “can talk over a cup of 

coffee maybe next Monday if your schedule will allow,” and noted that ‘[t]hese last three days 

2 Plaintiff alleges that at that time she believed that Dr. Beardsley had fired her on Wednesday. 

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have my migraines in overdrive.” Id. Plaintiff did not ask Dr. Beardsley if she could take the day 

off. In response to Plaintiff’s text, Dr. Beardsley stated: “If you are not coming in today, I need 

you to courier all the stuff you have from RR and North [which Plaintiff took home on July 18th] 

so we can get the work completed.” Id. Plaintiff did not respond to Dr. Beardsley’s message and 

did not courier the cash, checks, and business records to Defendant. Plaintiff claims that she never 

saw the message because she was on strong medications and “spent most of the day asleep.” 

Ormond Dec. (Dkt. 13-1) ¶ 14. 

On Sunday, July 22, 2018, Dr. Beardsley sent Plaintiff a text message notifying her that she 

was terminated because she failed to follow the CTVSEH absence policy and was a “no call no 

show” on July 20, 2018. Dkt. 13-39. Plaintiff argues that when Defendant terminated her, “it knew 

that [Plaintiff] was claiming she was unable to work that day due to a medical condition.” Dkt. 16 

at 13. Plaintiff argues that “she was fired for missing work” because her “disability caused her to 

miss work.” Id. at 13-14. Thus, Plaintiff contends, she was terminated because of her disabilities.

Defendant denies this and alleges that it fired Plaintiff because she (1) failed to show up for 

work on July 20, 2018; (2) failed to follow the CTVSEH absence notification policy; (3) was 

excessively absent and greatly exceeded her accrued PTO; (4) failed to comply with 

Dr. Beardsley’s direct order to courier cash, checks, and business records to Defendant; and 

(5) had poor job performance over the prior two years.

D. This Litigation

On April 24, 2020, Plaintiff filed this case in state court, alleging that Defendant (1) violated 

the ADA and the Texas Labor Code by discriminating against her because of her disability and for 

failing to accommodate her disability; and (2) interfered with her rights under the FMLA. Ormond 

v. CTVSEH PLLC, D-1-GN-20-002278 (98th Dist. Ct., Travis County, Tex. April 24, 2020) (Dkt. 2 

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at 9-17). Defendant removed this case to federal court on the basis of federal question jurisdiction

pursuant to 28 U.S.C. § 1441(a) on June 24, 2020. 

Defendant now moves for summary judgment under Federal Rule of Civil Procedure 56(a),

arguing that there is no genuine dispute as to any material fact and that it is entitled to judgment 

as a matter of law on all of Plaintiff’s claims. Plaintiff opposes the Motion. Both parties also have 

filed motions objecting to the other’s summary judgment evidence. 

The Court makes the following rulings and recommendations. 

II. Legal Standard

Summary judgment shall be rendered when the pleadings, the discovery and disclosure 

materials, and any affidavits on file show there is no genuine dispute as to any material fact and 

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). 

[A] party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions of “the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any,” which it believes demonstrate 

the absence of a genuine issue of material fact. 

Celotex, 477 U.S. at 323 (quoting FED. R. CIV. P. 56(a)). 

If the moving party fails to meet this initial burden, the motion must be denied, regardless of 

the nonmovant’s response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). But if 

the movant meet this burden, the nonmovant must come forward with competent summary 

judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. v. Zenith Radio, 

475 U.S. 574, 586 (1986). A dispute regarding a material fact is “genuine” if the evidence is such 

that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). 

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When ruling on a motion for summary judgment, the court is required to view all inferences 

drawn from the factual record in the light most favorable to the nonmoving party. Matsushita, 475 

U.S. at 587; Washburn, 504 F.3d at 508. A court “may not make credibility determinations or 

weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing 

Prods., 530 U.S. 133, 150 (2000); see also Anderson, 477 U.S. at 254-55.

Mere conclusory allegations are not competent summary judgment evidence, and thus are 

insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 

476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and 

unsupported speculation also are not competent summary judgment evidence. Id. The party 

opposing summary judgment is required to identify specific evidence in the record and to articulate 

the precise manner in which that evidence supports its claim. See Adams v. Travelers Indem. Co. 

of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing 

sufficient to establish the existence of an element essential to its case and on which it will bear the 

burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Motions to Strike Evidence

The Court addresses the parties’ evidentiary motions first.

A. Defendant’s Motion to Strike

In support of her opposition to Defendant’s Motion for Summary Judgment, Plaintiff relies in 

part on her sworn declaration, which summarizes her version of the facts of the case. See Ormond 

Dec. (Dkt. 16-1). Defendant argues that the Court should strike Plaintiff’s Declaration because it 

is “self-serving and conclusory” and “filled with nothing more than her iteration that despite what 

Dr. Beardsley or Kim Messenger testified to under oath, the opposite is true.” Dkt. 18 at 1. 

First, Defendant is mistaken that self-serving affidavits may not serve as competent summary

judgment evidence. See United States v. Carter, 737 F. App’x 687, 691 (5th Cir. 2018). As the 

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Fifth Circuit has explained: “A party’s own testimony is often ‘self-serving,’ but we do not exclude 

it as incompetent for that reason alone. Instead, an affidavit based on personal knowledge and 

containing factual assertions suffices to create a fact issue, even if the affidavit is arguably selfserving.” C.R. Pittman Const. Co. v. Nat’l Fire Ins. Co. of Hartford, 453 F. App’x 439, 443 

(5th Cir. 2011); see also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (“Provided that the 

evidence meets the usual requirements for evidence presented on summary judgment—including 

the requirements that it be based on personal knowledge and that it set forth specific facts showing 

that there is a genuine issue for trial—a self-serving affidavit is an acceptable method for a nonmoving party to present evidence of disputed material facts.”). “If all ‘self-serving’ testimony were 

excluded from trials, they would be short indeed.” C.R. Pittman, 453 F. App’x at 443. 

In addition, Defendant’s argument that the Court should strike Plaintiff’s Declaration because 

Plaintiff’s version of the facts conflicts with Defendants’ version “is inconsistent with fundamental 

rules governing summary judgment.” 

By choosing which testimony to credit and which to discard, a court improperly 

weighs the evidence and resolves disputed issues in favor of the moving party.

Doing so is tantamount to making a credibility determination, and—at this 

summary judgment stage—a court may make no credibility determinations. . . .

Although a court is not required to accept the nonmovant’s conclusory allegations, 

speculation, and unsubstantiated assertions which are either entirely unsupported, 

or supported by a mere scintilla of evidence, a nonmovant's statement may not be 

rejected merely because it is not supported by the movant’s or its representatives’

divergent statements.

Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 245 (5th Cir. 2016) (cleaned up).

Simply put, Ormond’s statements are no more and no less self-serving than those of the 

Defendant. Id. Accordingly, Defendant’s objection to Plaintiff’s Declaration for being conclusory 

or self-serving is meritless.

Defendant also objects to certain medical records from the Austin Epilepsy Care Center on 

which Plaintiff relies to show that she suffers from epilepsy. See Dkt. 16-15. Although Defendant 

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acknowledges that these medical records “were provided by Defendant as a courtesy” and does 

not dispute their authenticity, Defendant nevertheless argues that they should be stricken because 

“Plaintiff merely offers them to bolster her own unsubstantiated Declaration” and, therefore, they 

are “self-serving” medical records. Dkt. 18 at 3. Again, this is not an appropriate basis for objection

to summary judgment evidence. See Heinsohn, 832 F.3d at 245.

Finally, Defendant objects to documents submitted to the Texas Workforce Commission

(“TWC”) during its administrative review of Plaintiff’s discrimination claims. These documents 

include: (1) medical records from Dr. Sami Aboumatar, Plaintiff’s treating physician, which state

that Plaintiff has been diagnosed with epilepsy and migraine headaches (Dkts. 16-4; 16-15); (2) a 

one-page Work Separation document completed by Messenger summarizing the duration of 

Plaintiff’s employment (Dkt. 16-19); (3) a letter from Dr. Beardsley summarizing the final days of 

Plaintiff’s employment (Dkt. 16-11); and (4) a letter from Messenger summarizing the final days 

of Plaintiff’s employment (Dkt. 16-12).

3 Defendant argues that the Court should strike these 

documents because they are “littered with Plaintiff’s handwritten notes and self-serving hearsay”

and are “inadmissible under Texas Labor Code § 213.007.” Dkt. 18 at 5. 

Once again, Defendant’s contention that self-serving evidence is improper at summary 

judgment is meritless. Defendant also is mistaken that these documents are inadmissible under 

§ 213.007 of the Texas Labor Code. Section 213.007 provides that: 

A finding of fact, conclusion of law, judgment, or final order made under this 

subtitle is not binding and may not be used as evidence in an action or proceeding, 

other than an action or proceeding brought under this subtitle, even if the action or 

proceeding is between the same or related parties or involves the same facts.

3 Defendant mistakenly refers to Messenger’s letter as Exhibit 16 instead of Exhibit 12 in the title of 

Defendant’s Motion to Strike. 

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Thus, under Texas law, “the Texas Workforce Commission’s findings and conclusions may not be 

used as evidence in lawsuits, except for suits brought to enforce unemployment benefits.” Williams 

v. Aviall Servs. Inc., 76 F. App’x 534, 536 (5th Cir. 2003) (citing § 213.007) (emphasis added); 

see also Cartagena v. Aegis Mortg. Corp., 275 F.3d 46, 2001 WL 1268730, at *4 n.2 (5th Cir. 

2001) (same). Here, Plaintiff has not proffered findings and conclusions of the TWC as summary 

judgment evidence; rather, Plaintiff relies on a letter from her treating physician and three 

documents from Defendant describing why Plaintiff was terminated, all of which were submitted 

to the TWC during her administrative proceedings. Accordingly, these documents do not violate 

Texas Labor Code § 213.007 and Defendant’s objections are baseless. See Weddle v. Safety-Kleen 

Sys., Inc., No. 4:11-CV-017, 2012 WL 2505730, at *4 (E.D. Tex. June 28, 2012) (noting that while 

TWC’s findings are inadmissible, “testimony before the Texas Workforce Commission is proper 

summary judgment evidence”); see also Govea v. Landmark Indus., Ltd., No. SA-10-CV-200-XR,

2011 WL 632858, at *2 n.36 (W.D. Tex. Feb.10, 2011) (considering testimony before the TWC 

when considering motion for summary judgment).

Based on the foregoing, Defendant’s Motion to Strike (Dkt. 18) is DENIED.

B. Plaintiff’s Motion to Strike

Plaintiff asks the Court to strike Defendant’s 35-page “Statement of Facts in Support of 

Defendant’s Motion for Summary Judgment” (Dkt. 13-2), attached to its 18-page Motion for 

Summary Judgment, because Defendant’s Motion exceeds the 20-page limit in Local Rule CV7(c)(2). While the Court agrees that Defendant’s attachment circumvents the page limit, that is not 

a basis for exclusion. Local Rule CV-7(c)(1) provides that: “An appendix may be filed with the 

motion specifying any factual basis relied upon. If filed, the appendix must include all affidavits, 

deposition transcripts, or other documents supporting the relied upon facts.” Moreover, Local Rule 

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CV-7(c)(2) states that the 20-page limit is “exclusive of the caption, signature block, any 

certificate, and any accompanying documents.” Accordingly, the Statement of Facts summarizing

Defendant’s version of the facts does not violate Local Rule CV-7(c)(2), and, therefore, Plaintiff’s

Motion to Strike is DENIED. See Simms v. City of San Antonio, Texas, No. 5:18-CV-00211-DAE, 

2019 WL 7900484, at *4 (W.D. Tex. May 24, 2019) (overruling plaintiff’s motion to strike 

defendant’s summary of facts). 

IV. Defendant’s Motion for Summary Judgment

Defendant argues that it is entitled to summary judgment on Plaintiff’s ADA and Texas Labor 

Code claims because Plaintiff has failed to make out a prima facie case of disability discrimination. 

Alternatively, Defendant argues that even if Plaintiff has demonstrated a prima facie case of 

disability discrimination, it has provided legitimate nondiscriminatory reasons for terminating her.

A. Plaintiff’s ADA and Texas Labor Code Claims

Plaintiff alleges that Defendant discriminated against her on the basis of her disability and 

failed to accommodate her disability, in violation of the ADA and the Texas Labor Code.4

Discrimination under the ADA includes both a failure to accommodate a disability and disparate 

treatment because of a disability. E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 703 n.6 (5th Cir. 

2014). The Court turns first to Plaintiff’s discrimination claim. 

Discrimination Claim

Plaintiff alleges that she was terminated because of her migraine headaches, in violation of the 

ADA. The ADA prohibits employers from discriminating against “a qualified individual on the 

4 Because the Texas Labor Code parallels the language of the ADA, courts evaluating discrimination claims 

brought under the Texas Labor Code apply ADA law in evaluating such claims. Clark v. Champion Nat’l 

Sec., Inc., 952 F.3d 570, 578 n.16 (5th Cir.), cert. denied, 141 S. Ct. 662 (2020). Accordingly, the following 

ADA analysis applies equally to Plaintiff’s state law claims. Id.

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basis of disability” by, among other things, terminating the individual’s employment. 42 U.S.C. 

§ 12112(a). Because Plaintiff offers only circumstantial evidence to prove her claim, the Court 

applies the McDonnell Douglas burden shifting framework. See LHC Gp., 773 F.3d at 694 (citing 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under this framework, an employee 

first must show a prima facie case of disability discrimination. Id. Once an employee has 

established her prima facie case, the burden shifts to the employer to “articulate a legitimate, 

nondiscriminatory reason for” the adverse employment action. Id. The employee then must present 

evidence that the articulated reason is pretextual. Id.

To establish a prima facie discrimination claim under the ADA, a plaintiff must prove that 

(1) she has a disability; (2) she was qualified for the job; and (3) she was subject to an adverse 

employment decision on account of her disability. Id. at 697. In this case, the Court need not decide 

whether Plaintiff established her prima facie case because, even if she has, Defendant provided

numerous, legitimate nondiscriminatory reasons for firing her. See Trautman v. Time Warner 

Cable Tex., L.L.C., 756 F. App’x 421, 428 (5th Cir. 2018) (stating that court need not decide 

whether plaintiff established prima facie case because, even if she had, defendant presented nonpretextual reason for firing her). 

a. Legitimate Nondiscriminatory Reasons for Plaintiff’s Termination

Defendant stated that it fired Plaintiff because she (1) failed to show up for work on July 20, 

2018; (2) failed to follow the CTVSEH absence notification policy; (3) was absent excessively 

and greatly exceeded her accrued PTO; (4) failed to comply with Dr. Beardsley’s direct order to 

courier cash, checks, and business records to Defendant; and (5) had poor job performance for two 

years. These all are legitimate, nondiscriminatory reasons for termination.

It is undisputed that Plaintiff neither worked on June 20, 2018 nor received approval from 

Dr. Beardsley to take a personal day off, as required by CTVSEH’s attendance policy. “[A]s 

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should go without saying, an employee’s failure to show up for work is a legitimate reason for 

firing her.” Amedee v. Shell Chem., L.P., 953 F.3d 831, 835 (5th Cir. 2020) (quoting Trautman, 

756 F. App’x at 428 (collecting cases)).

5

Defendant also submitted summary judgment evidence that Plaintiff had excessive absences 

in 2017 and 2018. For example, during 2017, Plaintiff took 194 hours of PTO, exceeding her 137-

hour PTO allowance for the year, plus another 99.5 hours of undocumented time away from the 

office for which she was fully paid. Dkt. 13-5 ¶ 14. Between January 1, 2018 and July 20, 2018, 

Plaintiff took at least 166 PTO hours, which exceeded her 88-hour PTO allowance for 2018, and 

was paid for 46 more undocumented hours off. Id. ¶ 15. Plaintiff does not dispute this. Excessive 

absenteeism is a legitimate, non-discriminatory reason to fire an employee. Trautman, 756 

F. App’x at 428 (holding that employer stated a legitimate reason for firing plaintiff—excessive 

absenteeism—where plaintiff accrued 200 hours of absences). 

In addition, “[t]he failure of a subordinate to follow the direct order of a supervisor is a 

legitimate nondiscriminatory reason for discharging that employee.” Chaney v. New Orleans Pub. 

Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). Accordingly, Plaintiff’s failure to comply 

with Dr. Beardsley’s directive to courier cash, checks, and business records to Defendant on 

July 20, 2018 also is a legitimate reason for termination. 

Another legitimate reason for termination is poor work performance. See Burton v. Freescale 

Semiconductor, Inc., 798 F.3d 222, 231 (5th Cir. 2015) (holding that poor work performance was 

5 See also Bell v. Dallas Cnty., 432 F. App’x 330, 334 (5th Cir. 2011) (per curiam) (“Contrary to [the 

employee’s] assertion, the evidence demonstrates that the [employer] terminated [him] for violating the 

attendance policy, not because he used his FMLA leave.”); Powers v. Woodlands Religious Cmty. Inc., 323 

F. App’x 300, 302 (5th Cir. 2009) (per curiam) (“[The employer’s] stated reason for [the employee’s] 

termination—absenteeism—is a legitimate nondiscriminatory reason for its decision.”); Hypes ex rel. 

Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998) (per curiam) (recognizing that record 

of excessive absences is legitimate, nondiscriminatory reason to fire employee).

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legitimate, nondiscriminatory reason for termination where employee had received critical work 

assessments and broken some work equipment, improperly accessed the Internet, and failed to 

complete tasks absent direction); Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 320 (5th Cir. 1997) 

(holding that employer proffered legitimate, nondiscriminatory reasons for terminating employees 

where employer alleged employees had history of poor job performance, difficulties working with 

others, inadequate technical and leadership skills, inefficiency, and excessive billing).

Based on the foregoing, Defendant has met its burden to articulate a legitimate, 

nondiscriminatory reason for firing Plaintiff. 

b. Plaintiff Fails to Show Pretext

In response to a motion for summary judgment, an employee must present “substantial 

evidence” that the employer’s legitimate, nondiscriminatory reason for termination is pretextual. 

Burton, 798 F.3d at 233. Plaintiff has not shown by a preponderance of the evidence that 

Defendant’s articulated reasons for her termination were pretextual. Pretext is established “either 

through evidence of disparate treatment or by showing that the employer’s proffered explanation 

is false or ‘unworthy of credence.’” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 480 

(5th Cir. 2016). Here, Plaintiff does neither.

Plaintiff argues that Defendant’s articulated reasons for terminating her – specifically,

Plaintiff’s excessive absences and failure to come to work or ask for the day off on June 20, 2018

– are pretextual because Defendant never had a rigorous and consistently enforced attendance 

policy. Plaintiff argues that given her flexible schedule and Defendant’s past approval of her 

previous absences, terminating her for not being at the office on a specific day is “nonsensical.” 

Dkt. 16 at 14. Courts, however, have found that an employer’s past approval of leave is evidence 

that the employer’s proffered reason for terminating Plaintiff was not pretextual. See Villarreal v. 

Tropical Texas Behav. Health, No. 20-40782, 2021 WL 3525023, at *4 (5th Cir. Aug. 10, 2021) 

Case 1:20-cv-00661-RP Document 22 Filed 09/21/21 Page 16 of 26
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(finding fact that employer had record of granting employee accommodations “whenever she 

requested and even when the law did not compel them” strongly weighed against an inference of 

pretext); Trautman, 756 F. App’x at 429 (considering employer’s past conduct of approving 

FMLA leave as evidence proffered reason for firing employee was not pretext); Garcia v. Penske 

Logistics, L.L.C., 631 F. App’x 204, 212 (5th Cir. 2015) (same). Accordingly, the fact that 

Defendant had permitted Plaintiff to work a flexible schedule and routinely approved her PTO in 

the past cuts against her argument that Defendant’s proffered reason for termination was 

pretextual. 

Plaintiff further argues that Defendant’s purported reasons for termination are pretextual 

because she received a “meets expectations” score on the “Dependability and Attendance” section 

of her Performance Evaluation two months before she was terminated. Plaintiff fails to mention 

that the Performance Evaluation also stated the following: 

• The South hospital would benefit more if Mitzi were in the hospital more and 

working from home less.

• Mitzi does not report to work on regular basis, it’s hard sometimes to know which 

days she will be out and which days she will be in the office. If she is at the office 

we never know for how long she will be there since she tends to leave early.

• There are times that Mitzi does not stay on top of issues that need to be completed 

or dealt with. She needs to be reminded about them. There were north invoices 

never sent out and employees’ account balances have been allowed to go too high 

without warning or notice.

• Mitzi seems to be productive when she is here. I think the employees would benefit 

if Mitzi were in the office more often and have less days working from home. 

Dkt. 16-8 at 1-2. These comments do not show pretext but support Defendant’s proffered reasons 

for termination, namely, Plaintiff’s failure to appear for work and her poor job performance. 

In addition, Plaintiff has failed to come forward with any evidence that an employee who had 

an attendance record similar to Plaintiff was treated more favorably. See Delaval, 824 F.3d at 480

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(finding that plaintiff did not show employer’s proffered reason for termination – violation of the 

company’s attendance policy – was pretextual where plaintiff failed to contend that he was treated 

differently than any other employee regarding the attendance policy).

In sum, the Court concludes that Plaintiff has failed to produce evidence from which a 

reasonable jury could infer that the reasons Defendant gave for its decision to terminate her were

pretextual. Plaintiff has offered no evidence that Defendant’s stated reason was not the true one, 

such as that non-disabled employees were treated differently or that the explanation was so 

implausible as to be a cover-up. Rather, Plaintiff offers only her own speculation that her alleged 

disabilities motivated the decision to fire her. The Fifth Circuit has “consistently held that an 

employee’s subjective belief of discrimination, however genuine, cannot be the basis of judicial 

relief.” E.E.O.C. v. Louisiana Off. of Cmty. Servs., 47 F.3d 1438, 1447-48 (5th Cir. 1995). 

Accordingly, Defendant is entitled to summary judgment on Plaintiff’s disability discrimination 

claim. 

Failure to Accommodate Claim

Plaintiff also alleges that Defendant failed to accommodate her disability by allowing her to 

take leave on July 20, 2018, in violation of the ADA. Under the ADA, an employer must “make 

‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified 

individual with a disability.’” Delaval, 824 F.3d at 479 (quoting 42 U.S.C. § 12112(b)(5)(A)). To 

prevail on her failure to accommodate claim, Plaintiff must show that (1) she is a qualified 

individual with a disability; (2) the disability and its consequential limitations were known by the 

covered employer; and (3) the employer failed to make reasonable accommodations for such 

known limitations. Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017).

Case 1:20-cv-00661-RP Document 22 Filed 09/21/21 Page 18 of 26
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Plaintiff fails on the first prong. A plaintiff can establish that she is qualified by showing either

that (1) she could perform the essential functions of the job in spite of her disability, or (2) a 

reasonable accommodation of her disability would have enabled her to perform the essential 

functions of the job. Id. “However, the inability (or refusal) to attend work disqualifies one from 

being a ‘qualified individual with a disability’ under the ADA. That is because an essential element 

of any job is an ability to appear for work and to complete assigned tasks within a reasonable 

period of time.” Villarreal, 2021 WL 3525023, at *5 (cleaned up).

Plaintiff was not qualified to perform her job because she was not able to appear for work 

regularly and perform the essential functions of her job, even with her flexible schedule. See Hypes 

ex rel. Hypes v. First Com. Corp., 134 F.3d 721, 727 (5th Cir. 1998) (“Since regular attendance is 

an essential function of [employee’s] job, and since he could not be expected to have regular 

attendance even with the requested flex-time accommodation, [employee] is not ‘otherwise 

qualified’ to perform this job and thus may not prevail under the ADA.”); Rogers v. Int’l Marine 

Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (“Because [employee] could not attend work, he 

is not a ‘qualified individual with a disability’ under the ADA.”). As detailed above, Plaintiff 

greatly exceeded her PTO allowance and regularly failed to show up to work.

Moreover, “[a]n accommodation that does not permit an employee to perform essential job 

functions cannot be considered reasonable.” Cortez v. Raytheon Co., 663 F. Supp. 2d 514, 525 

(N.D. Tex. 2009). In other words, Defendant was not required to eliminate the requirement that 

Plaintiff appear for work and perform her job duties in order to accommodate her disability. Id.

Based on the foregoing, the Court finds that Plaintiff has failed to demonstrate that Defendant 

denied her a reasonable accommodation of her disability.

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Even if Plaintiff was a “qualified individual,” her failure to accommodate claim fails at a more 

fundamental level: Plaintiff never requested an accommodation on June 20, 2018. In Plaintiff’s 

text to Dr. Beardsley that day, Plaintiff did not ask to take the day off to accommodate her migraine 

headaches. “It is the plaintiff’s burden to request reasonable accommodations.” Clark v. Champion 

Nat’l Sec., Inc., 952 F.3d 570, 587 (5th Cir.), cert. denied, 141 S. Ct. 662 (2020). Because Plaintiff 

did not request an accommodation, reasonable or otherwise, her claim fails. Id.

Based on the foregoing, Defendant is entitled to summary judgment on Plaintiff’s failure to 

accommodate claim.

B. Plaintiff’s FMLA Claim

Plaintiff alleges that Defendant interfered with her rights under the FMLA by failing to give 

her individualized notice of leave available under the statute. Plaintiff contends that she “informed 

Defendant of her serious medical conditions, namely her seizure condition which entitled her to 

FMLA leave,” but that “Defendant never presented Plaintiff with information regarding FMLA 

leave or suggested to Plaintiff that FMLA leave was available.” Plaintiff’s Original Pet. (Dkt. 2 at

9-17) ¶ 35. 

The FMLA requires covered employers to grant covered employees up to twelve weeks of 

unpaid leave for certain qualifying reasons, such as the birth of a child or the occurrence of a 

“serious health condition.” 29 U.S.C. § 2612(a)(1). The FMLA makes it “unlawful for any 

employer to discharge or in any other manner discriminate against any individual for opposing any 

practice made unlawful by this subchapter.” Id. § 2615(a)(2). The FMLA also makes it unlawful 

for any employer to “interfere with, restrain, or deny” the exercise of any right provided under the 

FMLA. Id. § 2615(a)(1). 

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Plaintiff alleges that Defendant interfered with her rights under the FMLA by failing to give 

her individualized notice of leave available under the statute. An FMLA interference claim 

requires proof that the employer “interfered with, restrained, or denied” the plaintiff’s exercise or 

attempt to exercise his FMLA rights and that the violation prejudiced him.” Acker v. Gen. Motors, 

L.L.C., 853 F.3d 784, 788 (5th Cir. 2017). “When an employee requests FMLA leave, or when the 

employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, 

the employer must notify the employee of the employee’s eligibility to take FMLA leave within 

five business days, absent extenuating circumstances.” 29 C.F.R. § 825.300(b)(1). Failure to 

provide notice as required may constitute “interference with, restraint, or denial of the exercise of 

an employee’s FMLA rights.” § 825.300(e). 

To make a prima facie case of interference, a plaintiff must show that (1) she was an eligible 

employee, (2) her employer was subject to the FMLA, (3) she was entitled to FMLA leave, (4) she 

notified her employer of her intent to take FMLA leave, (5) her employer interfered with her 

exercise of FMLA rights, and (6) she was prejudiced as a result. See Tatum v. S. Co. Servs., 930 

F.3d 709, 713 (5th Cir. 2019); see also Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 

(2002) (requiring a showing of prejudice to prevail on a FMLA interference claim). 

It is undisputed that Defendant is a covered employer and Plaintiff is an eligible employee. 

Defendant disputes the remaining factors. 

Plaintiff Has a Serious Health Condition

Defendant first argues that Plaintiff’s notice claim fails because Plaintiff does not suffer from 

a serious health condition. Defendant argues that Plaintiff’s seizure condition does not qualify as 

a serious health condition because “[s]he never alleged that she needed inpatient care.” Dkt. 13 at 

12. Defendant misreads the statute and corresponding regulations. 

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The FMLA defines a “serious health condition” as “an illness, injury, impairment, or physical 

or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical 

care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The 

regulations promulgated under the statute clarify that a “serious health condition” encompasses

“[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health 

condition,” including “episodic rather than a continuing period of incapacity (e.g., asthma, 

diabetes, epilepsy, etc.).” § 825.115(c)(3). Thus, the regulations specifically state that epilepsy is 

a chronic serious health condition. See Hester v. Bell-Textron, Inc., No. 20-11140, 2021 WL 

3720103, at *1 (5th Cir. Aug. 23, 2021) (stating that epilepsy is a serious health condition under 

FMLA); Franklin v. Union Pac. R.R. Co., No. SA-17-CV-00020-OLG, 2018 WL 8576557, at *4 

(W.D. Tex. May 15, 2018) (stating that epilepsy may constitute “chronic serious health condition” 

that causes “episodic” incapacity). As previously noted, Plaintiff has provided summary judgment 

evidence that she was diagnosed with epilepsy and suffers intermittent incapacitating seizures. 

Dkt. 16-1 ¶ 5; Dkt. 16-15. Accordingly, Plaintiff has created at least a fact issue as to whether she 

suffers from a serious health condition as defined by the FMLA.

General Notice Requirements 

Defendant next argues that Plaintiff’s notice claim fails because Defendant complied with the 

general FMLA notice requirements by posting the relevant FMLA provisions and procedures for 

filing complaints under the statute at its offices and in its employee handbook. See 29 C.F.R. 

§ 825.300(a). Defendant’s argument is misplaced. Plaintiff is not claiming that Defendant failed 

to comply with the general notice requirements under § 825.300(a); rather, Plaintiff alleges that 

Defendant violated the individual eligibility notice requirements of § 825.300(b).

Case 1:20-cv-00661-RP Document 22 Filed 09/21/21 Page 22 of 26
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Plaintiff Did Not Notify Defendant 

Next, Defendant argues that Plaintiff’s notice claim fails because Plaintiff never “asked for, 

and was denied, FMLA leave.” Dkt. 13 at 13. The Court agrees. “While the employee has a right 

to take leave under the FMLA, the employee must give his employer notice of his intention to take 

leave in order to be entitled to it.” Acker, 853 F.3d at 788. The employee must “provide sufficient 

information for an employer to reasonably determine whether the FMLA may apply to the leave 

request,” such as including information “that a condition renders the employee unable to perform 

the functions of the job.” 29 C.F.R. § 825.303(b). In other words, “[t]he critical question is whether 

the information imparted to the employer is sufficient to reasonably apprise it of the employee’s 

request to take time off for a serious health condition.” Manuel v. Westlake Polymers Corp., 66 

F.3d 758, 764 (5th Cir. 1995). Thus, the Court must determine whether a rational juror could 

conclude that the information Plaintiff gave Defendant was “sufficient to reasonably apprise it of 

[Plaintiff’s] request to take time off for a serious health condition.” Satterfield v. Wal-Mart Stores, 

Inc., 135 F.3d 973, 977 (5th Cir. 1998) (quoting Manuel, 66 F.3d at 764).

In support of her argument that she requested FMLA leave, Plaintiff relies on the following

text messages she sent Dr. Beardsley between June 5 and July 20, 2018:

June 5, 2018, 8:50 AM: So sorry but I can’t come in today. I had a seizure this 

morning and I need to take some pain medicine. 

June 6, 2018, 10:37 AM: Back to normal schedule today fingers crossed

June 7, 2018, 9:31 AM: Just leaving Chase and I’m going to the ER/Neurologist. 

I’ve been up since 4 am with this crazy bad headache. I took care of getting south

receipts chart and Derm drugs dropped off this morning and will keep you posted 

if I don’t die first [sad face emoji]

June 8, 2018, 9:17 AM: Sorry Dr B the pain shots from yesterday made me sleep 

and I forgot to have Audrey hit the send button. I have had two harder seizure than 

in the past and a combination of two other issues that work against each other 

Stronger drugs will help [g]et me back on my feet I will be back at work Monday 

and will concentrate on getting South and EC caught up.

Case 1:20-cv-00661-RP Document 22 Filed 09/21/21 Page 23 of 26
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June 20, 2018, 8:35 AM: . . . I hope we can talk over a cup of coffee maybe next 

Monday if your schedule will allow[.] These last three days have my migraines in 

overdrive.

Dkt. 16-6 at 1-7; Dkt. 13-39. 

The Court finds that no rational trier of fact could conclude that Plaintiff’s texts were sufficient 

to reasonably apprise Defendant of Plaintiff’s request to take time off for a “serious health 

condition” within the meaning of the FMLA. Satterfield, 135 F.3d at 980. “When an employee 

seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert 

rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.302(c); see also Manuel v. 

Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995) (“We hold that the Family and Medical 

Leave Act of 1993 does not require an employee to invoke the language of the statute to gain its 

protection when notifying her employer of her need for leave for a serious health condition.”). But 

the employee must ask for leave. See Burnette v. RateGenius Loan Servs., Inc., 671 F. App’x 889, 

893 (5th Cir. 2016) (stating that while plaintiff was not required to mention FMLA in notice to 

employer, request was insufficient because it did not indicate that he “wanted leave of any kind”).

The regulations clarify that: “Calling in ‘sick’ without providing more information will not be 

considered sufficient notice to trigger an employer’s obligations under the Act.” 29 C.F.R. 

§ 825.303(b). This is precisely what Plaintiff did here. Plaintiff’s texts merely informed Defendant 

that she was taking time off and did not request extended leave for a serious health condition. 

Courts have found that similar statements from employees do not qualify as sufficient notice to an 

employer to trigger the employer’s obligations under the FMLA. See Seaman v. CSPH, Inc., 179 

F.3d 297, 302 (5th Cir. 1999) (finding that employee did not give employer adequate notice of 

intent to take FMLA leave where he told employer that “he might be suffering from bipolar 

disorder and needed time off to see a doctor” but never requested leave for serious medical 

condition); Satterfield, 135 F.3d at 980 (finding that employee did not give adequate notice to 

Case 1:20-cv-00661-RP Document 22 Filed 09/21/21 Page 24 of 26
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employer where employee told employer she “was having a lot of pain in her side” and “would 

not be able to work that day, but would like to make it up on one of her days off”); Carter v. Ford 

Motor Co., 121 F.3d 1146, 1148 (8th Cir. 1997) (holding that employee did not give employer 

adequate notice where employee’s wife told employer that she was sick and that employee would 

be out for a while, and employee later informed employer that he would be out, but offered no 

further information and stated that he did not know when he would return); Gay v. Gilman Paper 

Co., 125 F.3d 1432, 1436 (11th Cir. 1997) (finding that employee failed to provide sufficient notice 

to employer of request to take FMLA for nervous breakdown where employee’s wife told 

supervisor that employee would not be into work because he was having “some tests run”).

Plaintiff’s texts to Defendant between June 5 and July 20, 2018 show that Plaintiff continued 

to work despite her ailments and gave no indication that she needed an extended period of leave 

to treat a serious health condition. See Dkt. 16-6 at 1-7. “While an employer’s duty to inquire may 

be predicated on statements made by the employee, the employer is not required to be clairvoyant.” 

Satterfield, 135 F.3d at 980 (quoting Johnson v. Primerica, 1996 WL 34148, at *5 (S.D.N.Y. 

1996)). “The goal [of the FMLA] was not to supplant employer-established sick leave and personal 

leave policies, but to provide leave for more uncommon and, presumably, time-consuming events 

such as having or adopting a child or suffering from what is termed a ‘serious health condition.’”

Satterfield, 135 F.3d at 981 (quoting Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th Cir. 

1997)). Plaintiff did not provide Defendant enough information “to reasonably determine whether 

the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b). Accordingly, Plaintiff has 

failed to demonstrate that Defendant violated her rights under the FMLA, and Defendant is entitled 

to summary judgment on this claim. 

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V. Order and Recommendation

Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District

Court GRANT Defendant’s Motion for Summary Judgment (Dkt. 13) and enter judgment in favor 

of Defendant.

IT IS FURTHER ORDERED that Defendant’s Objections to Plaintiff’s Summary Judgment 

Response and Motion to Strike (Dkt. 18) and Plaintiff’s Motion to Strike Defendant’s Statement 

of Facts (Dkt. 16 at 1 n.1) are DENIED.

IT IS FURTHER ORDERED that this case be removed from the Magistrate Court’s docket 

and returned to the docket of the Honorable Robert Pitman.

VI. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within fourteen 

(14) days after the party is served with a copy of the Report shall bar that party from de novo 

review by the District Court of the proposed findings and recommendations in the Report and, 

except on grounds of plain error, shall bar the party from appellate review of unobjected-to 

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. 

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on September 21, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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