Mauder v. Metropolitan Transit Authority

• Decision Date: 14 April 2006
• Docket Number: No. 05-20299.,05-20299.
• Parties: Kenneth A. MAUDER, Plaintiff-Appellant, v. METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, also known as Metro, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.3d 574

Kenneth A. MAUDER, Plaintiff-Appellant, v. METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, also known as Metro, Defendant-Appellee.

No. 05-20299.

United States Court of Appeals, Fifth Circuit.

April 14, 2006.

COPYRIGHT MATERIAL OMITTED

Sufi Nasim Ahmad (argued), Joseph Y. Ahmad, Ahmad, Zavitsanos & Anaipakos, Houston, TX, for Plaintiff-Appellant.

Jeffrey C. Londa, Michael D. Mitchell, Stephen Eric Hart (argued), Ogletree, Deakins, Nash, Smoak & Stewart, Houston, TX, for Defendant-Appellee.

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

Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Appellant Kenneth Mauder ("Mauder") appeals from the district court's grant of summary judgment in favor of the defendant-appellee Metropolitan Transit Authority of Harris County, Texas ("Metro"). Mauder states that the district court erred in its grant of summary judgment because (1) he presented sufficient evidence that he suffers from a serious health condition, and, therefore should have been granted temporary leave under the Family and Medical Leave Act ("FMLA") to take necessary bathroom breaks; and (2) Metro's termination of his employment was done in retaliation to his exercise of his FMLA rights. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Mauder was an employee of Metro, the operator of the public transportation system for Harris County, Texas, from June 1999 through October 2002 as a Senior Support Center Analyst in Metro's Information Technology Support Center ("Support Center"). The function of the Support Center is to answer telephone calls from internal Metro customers relating to computer problems; Mauder's job duties mainly included providing technical support via telephone, resolving internal customers' technology problems, and assisting others in the IT department in training Support Center Analysts. In February 2002, a new Lead Support Center Analyst ("Supervisor Watkins") was hired and she determined that the Support Center needed improvement, as there were no accountability or customer service standards in place. She also determined that Mauder was "often away from his desk and unavailable to answer customer service calls." Therefore, she sent an e-mail to him explaining that he needed to be more visible. She later instituted specific procedures, scheduled break times, and established attendance policies to make the Support Center more productive.

In March 2000, Mauder missed two weeks of work; he was receiving medical treatment for boils caused by ingrown hairs. Through tests administered during his treatment, Mauder discovered he had Type II diabetes. Mauder returned to work on April 1, 2002, but his return to work notice made no mention of any medical restrictions, though his doctor advised him to change his diet and stop smoking. In mid-April, Mauder's doctor prescribed Metaformin, a generic version of the insulin drug Glucophage, which has a side-effect of temporary uncontrollable bowel movements and diarrhea. Metaformin was prescribed to treat Mauder's diabetes. Mauder, however, explained that he did not experience the side-effects of Metaformin until May or June, at which time Mauder told his doctor because he "thought [his doctor] would like to know." In his brief, Mauder stated that coping with the medication's side-effects "required approximately 15 minutes in the restroom [at a time]. . . . As a result, Mauder was medically required to leave his work station for restroom breaks at unscheduled times."

After the aforementioned procedures, scheduled break periods, attendance policies, etc.,¹ were implemented at the Support Center in May, Supervisor Watkins noticed that Mauder was not adhering to these rules. According to Mauder, his break time was from 9:00 a.m.-9:15 a.m. and 2:00 p.m.-2:15 p.m. and "he could not always [defer his trips to the bathroom] until the scheduled break time." Supervisor Watkins, unaware of Mauder's medical condition, sent an email to him reminding him of the necessity of following such procedures as logging off his computer when he left his desk. Thereafter, she sent another e-mail to Mauder concerning his tardiness in returning from scheduled breaks and mentioning three specific occasions of tardiness. Mauder responded to the first email by sending an email back to Supervisor Watkins stating sarcastically, "[n]o problem. I'll log out even if I back up in my chair"; and he responded to Supervisor Watkins's second email by giving her a handwritten doctor's note which stated that a side-effect of his diabetes medication was diarrhea, but that his condition should improve. Mauder concedes in his brief that he was frequently late, but explains that he told Supervisor Watkins that his medication made him experience severe diarrhea.

Despite the inconvenient side-effects of the medication, Mauder states that his doctor concluded that he should continue taking Metaformin. Mauder says that he explained his special circumstances to Supervisor Watkins and that he requested a flexible break schedule. According to Mauder, Metro refused the request and instructed him to take his breaks at the scheduled times.

On June 6, 2002, Mauder sent Supervisor Watkins an email with the subject line "We're losing the 3 Tardy's." He requested that the three instances of tardiness be removed from his record, based on the aforementioned doctor's note. Supervisor Watkins met with Mauder the next day and upon asking Mauder to provide more information regarding his medical condition, Mauder refused and instead stated in a follow-up email that he and his doctor had provided enough information and he would not provide any additional information. Supervisor Watkins denied Mauder's demand that the three incidents of tardiness be removed from his record and that he be allowed flexible break times.

After this incident, Mauder was warned repeatedly regarding his tardiness, both verbally and in written reprimands. He also received his 2002 performance appraisal on June 19, 2002, which noted that "on several occasions especially during peak times [Mauder] has been away from the Support Center." His overall rating of the appraisal was "satisfies most";² therefore, Mauder rationalizes that his performance did not suffer even though he took longer breaks. The performance appraisal also noted Mauder's tardiness and unavailability. Less than two weeks later, when his performance did not improve, Supervisor Watkins issued a documented verbal warning to him for repeated tardiness. In August, she issued a written reprimand to Mauder because of his tardiness. Mauder argues that because of the written reprimand in August, he had his doctor write Supervisor Watkins a final note explaining that his diarrhea may indeed be a permanent side effect of taking Metaformin. Contrary to this assertion, the record reveals that this five-line doctor's note did not take such a position. In fact, in it the doctor explains that "[u]sually the side effects are transient, but not always. I will try to manage the side effects on his next office visit." Supervisor Watkins, according to Mauder, again refused his request for flexible restroom breaks.

Finally, on September 12, 2002, Supervisor Watkins issued a memo indicating that Mauder, because of his unavailability during the work day, would be placed on a one-month corrective action plan effective the next day. This memo also indicated what areas in Mauder's work performance needed improvement; specifically, the memo noted that Mauder needed to increase his work area visibility and improve his negative attitude. Mauder asserts that he was "placed on probation for issues concerning not ready mode and total available time" and "Metro placed him on probation for this conduct with no previous warning and threatened him with termination," which is contrary to "Metro's own progressive disciplinary policy." The record reflects, however, that Supervisor Watkins had issued several previous warnings to Mauder. Furthermore, upon instituting Mauder's probation, she explained to Mauder that the corrective action period would end on October 11, 2002, and that if he did not adhere to the established guidelines during the probationary period, he would be terminated.

On September 25, 2002, Supervisor Watkins issued a memo concerning Mauder's progress during the corrective action period, noting that Mauder had not improved in any of the areas identified in the corrective action plan. A similar record was logged on October 1, 2002, and October 8, 2002. On October 4, 2002, Mauder made his only FMLA leave request to Metro's Human Resources Department ("HR"); in response, HR mailed a FMLA packet to Mauder and explained that Mauder was to return the packet by October 19, 2002. Just one week later, on October 11, 2002, however, Mauder was terminated from his position at Metro. Mauder asserts that his termination was a direct result of his FMLA claim with HR and that he believed, based on his conversation with HR, that his probation would likewise be extended until the packet's due date of return passed.

On January 13, 2003, Mauder filed this lawsuit against Metro, asserting claims for violations of the American With Disabilities Act ("ADA") and the FMLA. On June 22, 2004, Metro filed a motion for summary judgment and, in his response to the motion, Mauder expressly abandoned his ADA claims. On March 28, 2004, the district court granted Metro's motion for summary judgment, stating that Mauder "repeatedly admitted that he did not meet the hour standards during the corrective action period, and he offers no argument or evidence why this legitimate, nondiscriminatory reason for terminating him was a pretext for discrimination." From the grant of the motion, Mauder appeals contending that the district court erroneously concluded that he failed to produce sufficient...