1 United States Court of Appeals,

Fifth Circuit.

No. 96-60884

Summary Calendar.

Mary MURRAY, Plaintiff-Appellant,

v.

RED KAP INDUSTRIES, INC., Defendant-Appellee.

Oct. 9, 1997.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Mary Murray sued Red Kap Industries, Inc. ("Red Kap") for

violating the Family and Medical Leave Act of 1993 ("FMLA"), 29

U .S.C. § 2601 et seq., by discharging her after she had misse d

eigh t days of work due to a respiratory tract infection. After

Murray presented her case in chief to the jury, Red Kap moved for

judgment as a matter of law pursuant to Rule 50(a) of the Federal

Rules of Civil Procedure. The district court found that Murray had

failed to produce sufficient proof that she suffered from a

"serious health condition" during the second week of her illness,

and thus granted the motion. We affirm.

I

Mary Murray worked as a machine operator for Red Kap for

eleven years, sewing pants. On Sunday, March 19, 1995, Murray

became ill with an upper and lower respiratory tract infection.

She did not go to work on Monday, and did not n otify her2

supervisor, Mary Beth West, that she was ill. On Tuesday, Murray

visited the emergency room at a local hospital where a doctor gave

her antibiotics and i nstructed her to contact her personal

physician, Dr. William Rogers. Murray then scheduled an

appointment with Dr. Rogers on Friday. Also that afternoon, Murray

informed West of her visit to the emergency room and that she had

a doctor's appointment in a few days.

On Friday, Dr. Rogers prescribed a corticosteroid to

supplement Murray's antib iotics and asked her to call his office

the following Monday. Dr. Rogers then provided Murray with a work

release excusing her absence from Monday, March 20 to Friday, March

24 (" the first week") but wrote on the release that she would be

able to return to work on Monday, M arch 27. Immediately after

seeing Dr. Rogers, Murray visited Red Kap and gave the work release

to West. However, contrary to Dr. Rogers' written statement that

she could resume employment on Monday, Murray told West that she

would only return to Red Kap when she no longer felt sick.

On Monday, March 27, Murray contacted Dr. Rogers' office and

informed someone there that she was "fe eling better." However,

Murray did not return to work. Rather, she remained at home from

Monday through Thursday of that week ("the second week"). During

this period, she did not notify West of her condi tion or seek

further medical assistance. On Wednesday, Red Kap terminated

Murray for violating employee policy by being absent at work for

three consecutive days without no tifying her supervisor. On

Friday, a relative called Murray and mentioned that she had heard3

that Murray had quit her job. Shortly afterwards, Murray went to

Red Kap to talk to West and learned that she had been fired.

Subsequently, Murray sued Red Kap, alleging that she suffered

from a serious medical condition from March 19 through March 29

that rendered her unable to work, and that Red Kap violated the

F MLA when it terminated her. Red Kap then moved for summary

judgment, which the district court denied. At trial, Dr. Rogers

confirmed that Murray had a lower and upper respirat ory tract

infection and testified that a one-week period of convalescence

after her illness would be reasonable. However, during her

testimony, Murray conceded that she had not contacted West during

the second week until Friday, that she knew it was her

responsibility to tell West if she had to miss work, and that she

was aware that three consecutive unexplained absences would

normally lead to dismissal.

After hearing and seeing Murray's evidence, the district court

found that Murray had failed to show that she had a "serious health

condition" during the second week of her illness, and granted Red

Kap's motion for judgment as a matter of law.

II

On appeal, Murray contends that the district court erred in

granting judgment as a matter of law on her FMLA claims in light of

the substantial evidence in the record demonstrating that she

suffered from a serious health condition during the s econd week.

We review de novo the district court's decision to grant a motion

for judgment as a matter of law pursuant to Rule 50(a), applying1 Red Kap does not dispute that Murray was covered by the FMLA

and that it had to comply with the act. S ee generally 29 U.S.C. §

2611 (describing what kind of employees are eligible for leave

under the FMLA and what kind of employers must abide by the act's

requirements).

4 the same legal standard the court used below. R TC v. Cramer, 6

F.3d 1102, 1109 (5th Cir.1993).

A motion for judgment as a matter of law is appropriate if,

after considering the evidence presented and viewing all reasonable

inferences in the light most favorable to the nonmovant, the facts

and inferences po int so strongly in favor of the movant that a

rational jury cou ld not arrive at a contrary verdict. L ondon v.

MAC Corp. of Am., 44 F.3d 316, 318 (5th Cir.), cert. denied,

---

U.S. ----, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995). If there is

substantial evidence of such quality and weight that reasonable and

fair-minded jurors might reach a different conclusion, then we will

conclude that the district court erred in granting the motion. I d.

The FMLA attempts to balance the needs of sick employees

against the demands of the workplace by allowing certain employees

to take as much as twelve weeks medical leave whe n they have a

"serious health condition that makes [them] unable to perform the

functions of [their] position ..." and then, following a qualified

absence, to return to the same position or an alternate position

with equivalent pay, benefits, and working conditions. 1 29 U.S.C.

§ 2612(a)(1); 29 C.F.R. § 825.100. In order to qualify for

protection under the FMLA, the employee must provide the employer

with proper notice of his intention to take leave. 29 C.F.R. §

825.302.2 Murray's FMLA claims arose more than a month after the final

regulations began to apply. Murray became sick on March 19, 1995;

the final regulations took effect on February 6, 1995.

5 Under authority granted by the FMLA in 29 U.S.C. § 2654, the

Department of Labor ("DOL") h as issued final regulations for the

act. 2 Murray contends she had a "serious health condition" as

defined by the particular DOL regulat ion that deals with

"continuing treatment by a health care provider." This regulation

states:

(a) For purposes of FMLA, "serious health condition" entitling

an em ployee to FMLA leave means an illness, injury,

impairment, or physical or mental condition that involves:

...

(2) Continuing treatment by a health care provider. A serious

health condition invol ving continuing treatment by a health

care provider includes ...:

(i) A period of incapa city (i.e., inability to work, attend

school or perform regular other daily activit ies due to the

serious health condition, treatment therefor, or recovery

therefrom) of more than thr ee consecutive calendar days and

any subsequent treatment or period of incapacity relating to

the same condition, that also involves:

(A) Treatment two or more times by a health care provider, by

a nurse or physician's assistant under direct supervision of

a health care provider, or by a provider of health care

servi ces (e.g., physical therapist) under orders of, or on

referral by, a health care provider; or

(B) Treatment by a health care provider on at least one

occasion which results in a regimen of continu ing treatment

under the supervision of the health care provider.

29 C.F.R. § 825.114. Thus, under the regulation, where an employee

alleges that he has a serious health condition involving continuing

treatment by a health care provider, he must first demonstrate a

period of incapacity (i.e., the inability to work) for at least6

four consecutive days. Next, he must show that he received

subsequent treatment or had a period of incapacity, in which he was

either seen at least two ti mes by a health care provider (or a

qualified provider of health care services) or obtained a regimen

of continuing treatment under the supervision of a health care

provider.

In applying this regulatory test, we note that the di strict

court assumed that Murray was unable to work during the first week,

that is, she had a period of incapacity from March 20 to March 24

(and, on appeal, Red Kap appears to concede the point). The

preliminary question, then, becomes whether this initial period of

incapacity includes the period from the first day of the second

week to the day Murray was fired, that is, the period from March 27

to March 29 (or, alternatively, whether the period from the first

day of the second week to the day Murray was fire d is a separate

and independent period of incapacity). If the answer to this

question is affirmative, the n the issue is whether the relevant

period of incapacity me ets the requirements of either §

825.114(a)(2)(i)(A) or (B). If the answer to the question is

negative, then the issue is whether Murray received s ubsequent

treatment satisfying the requirements of § 825.114(a)(2)(i)(A) or

(B).

As a threshold matter, Murray can defeat Red Kap's motion for

judgment as a matter of law if she presents proof that March 27 to

March 29 was at least part of a period of incapacity for her or, in

other words, that she was unable to work during these three days.7

In this regard, Murray points to her testimony as well as that of

Dr. Rogers. For instance, Murray testified that Dr. Rogers told

her that "he didn't want me working in no plant long as I" was "out

of breath and winded...." Murray also stated that she informed

West that Dr. Rogers told her not to work as long as she was weak,

and that she advised West on Friday, March 24 that "if I was still

sick[,] I wasn't coming to work." Finally, Murray claimed that she

was convalescing at home from Monday to Thursday of the second

week. However, this evidence is all immaterial, conclusory, and/or

hearsay. Also, it is highly doubtful that Dr. Rogers told Murray

not to return to work as long as she felt weak given the fact that

he gave her a written release stating that she could return to Red

Kap the following business day. Moreover, Murray's supposed

comment to West on Friday of the first week about not coming to

wor k while she was unwell seems somewhat beside the point.

According to Murray herself, West (presumably because of Dr.

Rogers' statement in the work release) "was steady telling me, I'll

see you Monday." In short, Murray's testimony here does little, if

anything, to help show that her absence from work during the period

from March 27 to March 29 was necessa ry. See Brannon v. OshKosh

B'Gosh, Inc., 897 F.Supp. 1028, 1037 (M.D.Tenn.1995) (holding that

plaintiff's testimony that she was "too sick to work" is

insufficient to show that she was unable to return to work).

Next, Murray notes that Dr. Roger s testified that she "was

having significant respiratory problems" and "needed to be off work

until she was no longer short of breath." Murray also points out8

that Dr. Rogers stated that it would have been "reasonable" for her

to have taken a week off for convalescence following her Friday,

March 24 appointment, and that Dr. Rogers, at an appointment the

Tuesday after the second week, wrote in his notes that his

"IMPRESSION" was that Murray had a "[l]ower respiratory tract

infection, almost had pneumonia which has cleared." However, this

evidence is large ly irrelevant in light of the fact that, at the

Friday appointment, Dr. Rogers gave Murray a work release stating

that she "is able to retu rn to work ... on 3/27/95," that is, on

Monday of the second week. S ee Price v. Marathon Cheese Corp., 119

F.3d 330, 335 (5th Cir.1997) (holding that, given doctor's

description of plaintiff's manifestation of carpal tunnel syndrome

as a "mild to moderate" impairment and his testimony that her

conditio n was not severe enough to "tak[e] her off work

altogether," plai ntiff's alleged disability did not rise to the

level of a "serious health condition" for purposes of the FMLA).

In addition, Murray called Dr. Rogers on that Monday and told him

that she was feeling better, and, at no time during the second

w eek, did Murray seek any additional medical treatment. Lastly,

Murray did not bother to contact West to tell her why she was

staying home until Friday of the second week. During this period,

West had no information about why Murray was absent, other than

Murray's statemen t the previous Friday about not coming in until

she felt well. In fact, the only reason that Murray even went into

work on Friday was because she thought that she had been fired.

Given this evidence, we determine that no rational jury would9

believe that Murray was unable to work during the period from March

27 to March 29. S ee Price, 119 F.3d at 335-36 (affirming district

court's grant of judgment as a matter of law in favor of employer

where there was a dearth of evidence that fired employee with

manifestation of carpal tunnel syndrome was actually incapacitated

during her absence from work). Hence, March 27 to March 29 was not

a period of incapacity or part of such a period.

The next issue, then, is whether Murray can offer proof that

she received "subsequent treatment" during the period from March 27

to March 29 that meets the requirements of either §

825.114(a)(2)(i)(A) or (B). She cannot. The record is clear that,

durin g the second week, Murray did not have any treatment from a

health care provider or qualified provider of health care services.

In fact, sh e did not even return to Dr. Rogers for a follow-up

visit until April 4, 1995.

Therefore, we discern no way that a rationa l jury could

determine that Murray had a serious health condition entitling her

to FMLA leave during the period from March 27 to March 29.

Accordingly, the district court did not err in granting Red Kap's

motion for judgment as a matter of law pursuant to Rule 50(a).

III

For the foregoing reasons, we AFFIRM the judg ment of the

district court.