125 F.3d 1432 (11th Cir. 1997), 96-9490, Gay v. Gilman Paper Co.

Docket Nº:96-9490.
Citation:125 F.3d 1432
Party Name:Queen Ester GAY, Plaintiff-Appellant, v. GILMAN PAPER COMPANY, d.b.a. Gilman Converted Products, Defendant-Appellee.
Case Date:October 29, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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125 F.3d 1432 (11th Cir. 1997)

Queen Ester GAY, Plaintiff-Appellant,


GILMAN PAPER COMPANY, d.b.a. Gilman Converted Products,


No. 96-9490.

United States Court of Appeals, Eleventh Circuit

October 29, 1997

Lonzy F. Edwards, Edwards & Youmas, Macon, GA, for Plaintiff-Appellant.

Patrick D. Coleman, Jennifer S. Yates, Coffman, Coleman, Andrews & Grogan, Jacksonville, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before COX and BARKETT, Circuit Judges, and HUNT [*], District Judge.

BARKETT, Circuit Judge:

Queen Ester Gay appeals from the district court's order granting defendant Gilman Paper Company's ("Gilman") motion for summary judgment as to her claims under the Family and Medical Leave Act ("FMLA").

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The district court based its grant of summary judgment on Gay's failure to offer any evidence from which a jury could conclude either that she gave Gilman sufficient notice of her need for leave under the FMLA or that Gilman's asserted reason for terminating her was a pretext for discrimination. We affirm the grant of summary judgment.


Appellant, Queen Ester Gay, was employed by the Gilman Paper Company from 1988 until her termination on June 28, 1994. 1 Between January 1992 and February 1994, Gay was disciplined on five separate occasions for tardiness and/or absenteeism. Gay last worked at Gilman on June 18, 1994 and was scheduled to return to work four days later on June 22. On June 20, however, Gay was admitted to the Houston County Medical Center, a psychiatric hospital, to receive treatment for a nervous breakdown. On June 22, Gay's husband called Gay's supervisor, Polly McKendree, informing McKendree that Gay was in the hospital. Mr. Gay did not inform McKendree that his wife had suffered a nervous breakdown, but instead told her that Gay was having some tests run. During his deposition, Mr. Gay subsequently admitted that he had lied to McKendree about Gay's whereabouts and condition. He also admitted that he had instructed his sons not to give Gilman any information regarding Gay's condition or location. Specifically, Mr. Gay testified:

Q. What do you recall telling her [McKendree]?

A. I told her Queen was in the hospital.

Q. Did she ask you where?

A. Yes.

Q. What did you tell her?

A. I probably told her Atlanta, I think, or somewhere. I didn't tell her where she was at.

Q. Did you lie to her?

A. Yes.

Q. Why did you lie to her?

A. 'Cause I just didn't want them [Gilman] to know--I didn't want them to know her condition.

Q. So you lied to them both about the location and the condition, didn't you?

A. Yes.

Q. Did she ask when your wife would be back?

A. She asked what--she asked me what was wrong, but I didn't answer the question. I think she asked--hope she--told me she hoped she'd be okay but I wouldn't give her any information or anything 'cause I ain't willing--I didn't think they needed to know.

Q. Did you tell her she was having some tests run?

A. I probably did.

Q. Do you know whether or not Polly called your home and talked to one of your boys?

A. I don't know.

Q. You don't know whether she talked to Darren?

A. No, I don't know. She may have. She may have. The kids may have told me someone called. I don't know.

Q. Did you tell the boys if Gilman called not to tell them where--

A. Yeah.

Q. --she was?

A. Right.

Q. You told them that?

A. Uh-huh. (Affirmative)

Q. Told them if the company called, lie to them about where she was?

A. Just don't give them any information.

Q. And Dan never told you he talked to Polly McKendree?

A. I can't remember. He might have told me that she called and I asked him did you tell them anything and he said no 'cause I told them not to tell them anything, where she at or what. Just tell them she's in the hospital and that's it.

Gay made no further effort to communicate with Gilman regarding her condition or

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absence from work during the following week. On June 28, Gay was terminated by letter for "extended failure to report off, or explain absences."

Gay subsequently filed suit in the United States District Court for the Southern District of Georgia, alleging that she had been improperly denied leave for a serious health condition under the FMLA and wrongfully terminated for exercising her rights under the FMLA. 2


We review the district court's grant of summary judgment de novo, applying the same legal standards that bound the district court, and viewing all facts and any reasonable inferences therefrom in the light most favorable to the non-moving party. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1557 (11th Cir.1992). Summary judgment is appropriate only when "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The FMLA provides eligible employees with "a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition 3 that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). Where such leave is foreseeable based on planned medical treatment, the Act requires the employee to "provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph." 29 U.S.C. § 2612(e)(2)(B). Although the Act itself is silent regarding the notice required in the case of unforeseeable leave, interim regulations 4 promulgated by the Department of Labor provide that

[w]hen the need for leave, or its approximate timing, is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary cases.

29 C.F.R. § 825.303(a) (1993). The interim regulations further provide that the required notice may be given by telephone and that

[n]otice may be given by the employee's representative (e.g., a spouse ... ) if the employee is unable to do so personally. The employer will be expected to obtain any additional required information through informal means. The employee or representative will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.

29 C.F.R. § 825.303(b) (1993...

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