Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

SHONNA L. BAGGISH, 

Plaintiff, 

Case No.: 3:11cv315/RV-EMT

vs. 

CLEAR WIRELESS, LLC, a foreign

limited liability corporation, F/K/A

CLEARWIRE U.S., LLC, 

Defendant. 

_____________________________________/

ORDER

The plaintiff, Shonna L. Baggish, has brought this action against her former

employer, the defendant, Clear Wireless, LLC, alleging that her termination for

excessive absenteeism violated the Family Medical Leave Act [29 U.S.C. § 2601,

et seq.] (“FMLA”). The parties have had a full opportunity to conduct discovery,

and the defendant now moves for summary judgment (doc. 15). The plaintiff has

filed a response in opposition.

I. APPLICABLE LAW

A. Summary Judgment Standard

Summary judgment is proper where the pleadings, discovery, affidavits, and

disclosure materials on file show that there is no genuine issue of material fact and

that the movant is entitled to judgment as matter of law. Fed. R. Civ. P. 56(a), (c).

“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). 

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 1 of 9
Page 2 of 9

Summary judgment is improper “[i]f a reasonable fact finder evaluating the

evidence could draw more than one inference from the facts, and if that inference

introduces a genuine issue of material fact.” Allen v. Board of Public Educ. for Bibb

Cty., 495 F.3d 1306, 1315 (11th Cir. 2007). An issue of fact will be “material” if it

might affect the outcome of the case under the governing law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

It is “genuine” if the record, taken as a whole, could lead a reasonable trier of fact

to find in favor of the non-moving party. Id. On summary judgment, the facts must

be viewed in the light most favorable to the non-movant. Reeves v. C.H. Robinson

Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010).

Employment discrimination cases are fact-intensive, but it is well established

that “the summary judgment rule applies in job discrimination cases just as in other

cases.” Chapman v. AI Transport, 229 F.3d 1012, 1026 (11th Cir. 2000) (en banc);

accord Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It

is now beyond cavil that summary judgment may be appropriate even in the factintensive context of discrimination cases.”).

B. FMLA

The FMLA allows eligible employees to take twelve weeks of unpaid leave

each year for a qualifying medical purpose. See 29 U.S.C. § 2612. The employee

may take the leave to treat his own medical condition, or provide care to a family

member suffering from such a condition. The stated purpose of the FMLA is to

“balance the demands of the workplace with the needs of families.” See id. at §

2601(b)(1). Congress sought to accomplish this objective “in a manner that

accommodates the legitimate interests of employers.” Id. at § 2601(b)(3). To that

end, an employee seeking leave under the statute must: i) demonstrate that he (or

a family member) has a “serious health condition”, and ii) give the employer proper

notice of the need for leave. See id. at § 2612. After the employer receives notice

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 2 of 9
Page 3 of 9

of the need for FMLA leave, the employer may require that the employee verify the

need by providing medical certification from a health care provider. See 29 C.F.R. §

825.305(a).

The FMLA allows for two causes of action: interference claims, in which the

employee asserts that the employer denied or interfered with his substantive rights

under the statute, and retaliation claims, in which the employee asserts that the

employer discriminated against him because he engaged in activity protected by the

statute. Strickland v. Water Works & Sewer Board of City of Birmingham, 239 F.3d

1199, 1206 (11th Cir. 2001). In order to state an interference claim, the employee

must “demonstrate by a preponderance of the evidence that he was entitled to the

benefit denied.” Id. at 1206-07. To state a claim for retaliation, the employee must

“demonstrate that his employer intentionally discriminated against him in the form

of an adverse employment action for having exercised an FMLA right.” Id. at 1207.

Because the FMLA was not meant to replace “employer-established sick leave and

personal leave policies, but to provide leave for more uncommon and, presumably,

time-consuming events” [Price v. City of Fort Wayne, 117 F.3d 1022, 1023 (7th

Cir. 1997)], both interference and retaliation claims are necessarily dependent on

the employee (or a family member) having a “serious health condition.” Russell v.

North Broward Hosp., 346 F.3d 1335, 1340 (11th Cir. 2003) (emphasis supplied). 

A “serious health condition” requires that the employee or family member

receive: i) inpatient care in a hospital, or ii) continuing treatment by a health care

provider. 29 U.S.C. § 2611(11). While the FMLA does not define “continuing

treatment by a health care provider,” the United States Department of Labor has

issued regulations defining that phrase, in relevant part, as a period of incapacity

for more than three consecutive calendar days, and any subsequent treatment or

period of incapacity related to the same condition that also involves (1) treatment

by a health care provider on two or more occasions, or (2) treatment by a health

care provider on one occasion that results in a “regimen of continuing treatment

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 3 of 9
Page 4 of 9

under the supervision of the health care provider.” 29 C.F.R. § 825.115(a)(1),(2).

The Eleventh Circuit has held that “more than three consecutive calendar days” of

incapacity entails a period of 72 hours or more. Russell, supra, 346 F.3d at 1344-

45. “Continuing treatment” also includes “examinations to determine if a serious

health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(c).

The phrase “serious health condition” is defined objectively, not subjectively. See

Russell, supra, 346 F.3d at 1345. “Whether an illness or injury constitutes a

serious health condition under the FMLA is a legal question that an employee may

not sidestep in the context of summary judgment merely by alleging his condition

to be so.” Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999).

II. BACKGROUND

A. Facts

Except where otherwise noted, the following facts are undisputed.1

At the time relevant here, the plaintiff was employed by the defendant, a

wireless internet service provider, as an account service specialist and retention

representative. She left work on July 2, 2009, and was not scheduled to return

until after the July 4th weekend, on July 6th. However, she did not report to work

on that date (or in the weeks that followed). The plaintiff contends that her theneight-year old son Tyler --- who had been diagnosed with a prolapsed heart valve

years prior --- had passed out in his second grade class “somewhere around” the

1

 The parties spend a large portion of their respective memoranda focusing

on the defendant’s “point system” attendance policy, whether the plaintiff knew of

it, whether it was properly applied, whether it was “evenly and equally” enforced

among all employees, and whether the plaintiff timely submitted a FMLA-required

certification form for her absences. However, as will be discussed further infra, the

legally dispositive issue is simple and straightforward: were the plaintiff’s absences

due to a “serious health condition”? Because the answer to that question is plainly

no, I will discuss the facts of this case briefly, and only to the extent necessary to

decide the defendant’s motion for summary judgment.

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 4 of 9
Page 5 of 9

Fourth of July.2

At or around this same general time (the record is not clear exactly when),

Tyler developed chest pains and had difficulty breathing. The plaintiff thought he

may be having a heart attack, so she took him to the emergency room, where he

underwent an EKG. The test results did not lead to a definitive diagnosis, however,

and Tyler was discharged later that same day and the plaintiff was told to have his

pediatrician “read over everything.”

The plaintiff has testified that she needed time off from work because she

was Tyler’s primary care giver, and, “as [his] mother, I want[ed] to be there for my

child.” She needed “to make sure that he was taken care of” and “make sure he’s

as comfortable as possible. Make sure he’s not under any stress.” If he ever got

sick or dizzy, she wanted to be there to “hold his head up”; give him “Tylenol,

Motrin”; “make sure that he had a cool cloth”; and “put him in bed.” When asked

how often she had to perform these duties, the plaintiff replied “it was sporadic,”

possibly once a week.

Tyler saw two doctors during this period of time. The first, Dr. Mehta, was a

heart specialist, and she found nothing wrong with Tyler’s heart. In fact, according

to the plaintiff, Dr. Mehta “said [Tyler’s] heart was good” and he only needed “to

come back at least once a year or so to have him rechecked.” Dr. Van Ostenbridge,

the second doctor who saw Tyler, ordered some additional tests and “basically just

[gave] checkups.” Significantly, a note in Dr. Van Ostenbridge’s medical file, dated

July 30, 2009 --- written in response to plaintiff’s request for FMLA certification ---

states that: “[F]rom what I can tell there is no need for mom to be missing work to

care for child. Perhaps the initial 8 days for the [chest pain] to resolve is excusable,

but extended care does not appear to be necessary.” 

2

 The defendant has attached the school’s 2009 calendar as an exhibit to its

motion for summary judgment. It reflects that the school term ended that year one

month prior, on June 4, 2009. The plaintiff has made no attempt to respond to this

factual inconsistency in her response in opposition to the defendant’s motion.

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 5 of 9
Page 6 of 9

Almost two weeks later, on August 10, 2009 --- which was more than one

month after the plaintiff had last worked --- Clear Wireless’s manager of retention,

Kim Camacho, and her supervisor, Regina Galarsa, called the plaintiff and asked

when she planned to return to work. Because the doctors did not have a definitive

diagnosis of Tyler’s condition at that time, the plaintiff told them “I don’t have an

exact date. And then Kim says, well, then we’re just going to have to let you go if

you can’t give me an exact date.” The plaintiff was terminated at that time. A few

weeks after she was fired, Dr. Van Ostenbridge finally diagnosed Tyler’s condition

as “a little bit of anxiety” and heartburn. The plaintiff has testified that “chewable

Rolaids . . . seemed to calm it down quite a bit.”

B. Claims and Arguments

In her two-count complaint, the plaintiff has asserted both FMLA interference

and retaliation claims. The defendant moves for summary judgment on the grounds

that: 1) the plaintiff did not provide timely certification from Tyler’s doctor attesting

to the need for FMLA leave; 2) Tyler did not have a “serious health condition”; and

3) the plaintiff was lawfully terminated for excessive accumulation of points under

the defendant’s attendance policy. The plaintiff argues in response that: 1) she did

“all that was practical” to get the FMLA certification forms to the defendant, but

the medical provider did not complete his evaluation in time; 2) while it may have

ultimately turned out that Tyler did not have a “serious health condition,” she was

entitled to FMLA leave while his doctors were still trying “to determine whether he

suffered a serious health condition”; and 3) the attendance policy/point system “is

a sham . . . [that is] not applied evenly or equally to all employees subjected to it.” 

III. DISCUSSION

As indicated in footnote 1, supra, the threshold and legally dispositive issue

in this case is whether Tyler suffered from a serious health condition. If he did not,

then summary judgment in favor of defendant is appropriate as both the retaliation

and interference claims must fail as a matter of law. See Russell, supra, 346 F.3d

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 6 of 9
Page 7 of 9

at 1340 (“Interference and retaliation claims both require the employee to establish

a ‘serious health condition’”).

In the absence of overnight care in a hospital --- and there was none here ---

a ”serious health condition” is an illness or condition that results in incapacity for

more than three, full consecutive calendar days and requires “continuing treatment”

by a health care provider. It is clear and manifest that Tyler’s “little bit of anxiety”

and heartburn do not qualify as a “serious health condition” as there is no evidence

that he was incapacitated for more than 72 consecutive hours. In fact, the plaintiff

has testified that she had to provide care (e.g., by making him comfortable, giving

him Tylenol or Motrin, holding his head, and applying a cool cloth before he went to

sleep) only “sporadically,” maybe once a week. Otherwise, he appeared to be doing

fine. The plaintiff impliedly conceded during her deposition that someone else could

have watched and cared for him during this period, “but as [his] mother, I want[ed]

to be there for my child.” While that is certainly understandable, it does not a

“serious health condition” make.

The legislative history of the FMLA provides examples of the sort of ailments

that Congress intended the statute to cover:

Examples of serious health conditions include but are not

limited to heart attacks, heart conditions requiring heart

bypass of [sic] valve operations, most cancers, back

conditions requiring extensive therapy or surgical

procedures, strokes, severe respiratory conditions, spinal

injuries, appendicitis, pneumonia, emphysema, severe

arthritis, severe nervous disorders, [and] injuries caused

by serious accidents on or off the job. . . . All of these

conditions meet the general test that either the underlying

health condition or the treatment for it requires that the

employee be absent from work on a recurring basis or for

more than a few days for treatment or recovery. They

also involve either inpatient care or continuing treatment

or supervision by a health care provider, and frequently

involve both.

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 7 of 9
Page 8 of 9

Miller v. AT&T Corp., 250 F.3d 820, 834-35 (4th Cir. 2001) (quoting S. Rep. No.

103-3, at 28-29). Tyler’s anxiety and heartburn (for which he took antacid tablets

and showed improvement) is simply not a “serious health condition.” See Seidle v.

Provident Mut. Life Ins. Co., 871 F. Supp. 238, 242 (E.D. Pa. 1994) (recognizing

that although the list of ailments in the FMLA legislative history is not exhaustive,

child’s ear infection was not “serious health condition” as it was “[c]onspicuously

absent from” and “not as severe as” the ailments that were listed); see also 29

C.F.R. § 825.113(c) (“regimen of continuing treatment that includes the taking of

over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest

[and antacids] . . . is not, by itself, sufficient to constitute a regimen of continuing

treatment for purposes of FMLA leave”).

The plaintiff does not really dispute the foregoing as she does not appear to

contend that Tyler’s anxiety and heartburn constituted a “serious health condition.”

Rather, she argues that she was entitled to FMLA leave while the doctors were still

in the process of trying to definitively diagnose his condition and ascertain if it was

a “serious health condition.” The regulations do, indeed, provide that “continuing

treatment” can include “examinations to determine if a serious health condition

exists and evaluations of the condition.” See 29 C.F.R. § 825.113(c). However,

“examinations and evaluations concerning ‘serious health conditions’ implicate the

FMLA only to the extent their importance, duration and frequency require absence

from work.” See Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir. 1997).

The problem for the plaintiff is she has not pointed to any evidence in the record

that Tyler’s doctors were conducting such examinations --- particularly not toward

the end of her five-week absence from work. Quite to the contrary, Dr. Mehta told

the plaintiff that Tyler’s heart was “good” and that he only needed to come back

for a yearly check-up, while Dr. Van Ostenbridge’s file reveals that, as of July 30th,

“there is no need for mom to be missing work to care for child . . . [as] extended

care does not appear to be necessary.” And yet, the plaintiff told her supervisors

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 8 of 9
Page 9 of 9

almost two weeks later, on August 10th, that she was unable to tell them when she

would be willing and able to return to work. Summary judgment must be granted in

favor of defendant as Tyler’s medical condition was at that time --- if not sooner ---

objectively not a “serious health condition.” See Williams v. City of Plantation, Fla.,

2008 WL 4821757, at *5 (S.D. Fla. 2008) (minor child of employee did not have a

“serious health condition,” and thus summary judgment was appropriate, where the

medical record was “contrary to Plaintiff’s position,” i.e., the doctor who examined

the child stated that he “‘would not describe the child’s illness as a serious medical

condition’”). 

IV. CONCLUSION

The defendant’s motion for summary judgment (doc. 15) is GRANTED. The

Clerk is hereby directed to enter judgment in favor of the defendant, together with

taxable costs, and close this case.

DONE and ORDERED this 16th day of August, 2012.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

Case No.: 3:11cv315/RV-EMT

Case 3:11-cv-00315-RV-EMT Document 24 Filed 08/16/12 Page 9 of 9