Mincey v. Dow Chemical Co.

• Decision Date: 15 March 2002
• Docket Number: No. CIV.A.98-812.,CIV.A.98-812.
• Citation: 217 F.Supp.2d 737
• Parties: Connie F. MINCEY v. The DOW CHEMICAL COMPANY
• Court: U.S. District Court — Middle District of Louisiana

Page 737

217 F.Supp.2d 737

Connie F. MINCEY v. The DOW CHEMICAL COMPANY

No. CIV.A.98-812.

United States District Court, M.D. Louisiana.

March 15, 2002.

Louis L. Robein, Jr., Robein, Urann & Lurye, Metairie, LA, for Plaintiff.

Thomas Harry Kiggans, Karleen Joseph Green, Phelps, Dunbar, LLP, Baton Rouge, LA, for Defendant.

RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT

TYSON, District Judge.

This matter is before the court on a motion for partial summary judgment brought by the defendant, The Dow Chemical Company (hereafter, Dow). The plaintiff, Connie F. Mincey, has opposed this motion. Oral argument is not necessary in this matter. Jurisdiction is based on diversity (28 U.S.C. § 1332) and a federal question (28 U.S.C. § 1331), as it relates to the Family Medical Leave Act (FMLA); (29 U.S.C. §§ 2601-2654), the Fair Labor Standards Act (FSLA; 29 U.S.C. §§ 201-219), and the Americans With Disabilities Act (42 U.S.C. § 12101, et seq.)

FACTUAL BACKGROUND

From September 1990, until June 1998, the plaintiff was employed by Dow as an administrative assistant. During the course of her employment with Dow, Ms. Mincey was promoted on several occasions and, at the time of the events at issue in this litigation, she held the position of Senior Office Specialist in the Health and Safety Department.

In December 1997, Ms. Mincey was diagnosed with fibromyalgia. Fibromyalgia is a muscoskeletal condition that causes pain in the muscles and joints. This diagnosis was made by Ms. Mincey's rheumatologist, Dr. Stephen Lindsey. After proposing a course of treatment, Dr. Lindsey released Ms. Mincey back to work without any restrictions on her activities.

Subsequent to Ms. Mincey's release and return to work, her supervisors at Dow noted that Ms. Mincey was absent from the facility on numerous occasions. It is estimated that Ms. Mincey missed 152 of her scheduled work hours between the dates of January 1, 1998 and February 10, 1998. Ultimately, as a result of this absenteeism, Ms. Mincey's immediate supervisor, Doyle Haney (Haney) recommended that Ms. Mincey be terminated. The recommendation was reviewed by Dow Human Resource representative, Jan Burtt, as well as by a management and peer review board at Dow. They all concurred with Mr. Haney's recommendation, and, accordingly, Ms. Mincey's employment at Dow was terminated on June 2, 1998.

Following the termination of her employment, Ms. Mincey, on September 22, 1998, filed suit against Dow. In the complaint, Ms. Mincey asserts that Dow violated her rights under the Family Medical Leave Act by falling to acknowledge her rights to periods of leave as provided by law. Ms. Mincey, further, asserts that Dow violated her rights under the Fair Labor Standards Act by failing to compensate her for overtime that she allegedly worked. The petition also sets forth claims alleging that Dow violated Ms. Mincey's rights under the Americans With Disabilities Act and the Louisiana Employment Discrimination Law. Subsequently, Dow filed the instant motion for partial summary judgment, seeking dismissal of the plaintiff's FMLA, ADA and state discrimination claims.

STANDARD OF REVIEW MOTION FOR SUMMARY JUDGMENT

Rule 56 (c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment bears the initial burden of setting forth the basis for its motion and identifying the pleadings, answers to depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact."¹ Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue of fact for trial.² However, if the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial.³

ANALYSIS

I. THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act was enacted, in part, to "... balance the needs of the workplace with the needs of families ..."⁴ The Act permits employees to take reasonable leave for medical reasons and for the care of a child, spouse, or parent who has a serious health condition.⁵ The Act applies to private-sector employers of 50 or more employees⁶ and an employee is eligible for FMLA leave after working for a covered employer for at least 1250 hours during the preceding 12 months.⁷

In cases alleging discrimination under the FMLA, the plaintiff bears the burden of proving that the defendant's actions were motivated by intentional discrimination. In order to establish a prima facie case, the plaintiff must establish:

(1) that she is covered under the FMLA;

(2) that she suffered an adverse employment decision; and (3)(a) that she was treated less favorably than an employee who had not requested leave under the FMLA; or,

(3)(b) that the adverse employment decision was made because of plaintiff's request for leave.⁸

In a burden-shifting scheme akin to that established in McDonnell Douglas Corp. v. Green,⁹ if the plaintiff succeeds in making a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate non-discriminatory or non-retaliatory reason for the employment decision. If the employer does so, the plaintiff must then show by a preponderance of the evidence that the employer's reason is a pretext for discrimination or retaliation.¹⁰

In moving for summary judgment on the FMLA claim, Dow claims that plaintiff cannot prove that she is protected under the FMLA and, even if she is protected under the Act, she cannot prove that the challenged employment decision was made because of her request for leave.

An eligible employee under the FMLA is entitled to a total of 12 workweeks of leave during any 12-month period "... [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee ..."¹¹ Thus, in order to prove that she is covered under the FMLA, plaintiff must establish that (1) she suffered from a serious health condition which (2) rendered her unable to do her job.

The FMLA defines "serious health condition" as:

"... [a]n 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."¹²

Although plaintiff contends that her fibromyalgia requires continuing treatment by a health care provider and, therefore, meets the statutory definition of serious health condition, the summary judgment evidence in this regard does not support that contention.

The evidence provided by both medical experts indicates that fibromyalgia does not require continuing treatment. Dr. Wilson, Dow's medical expert, testified that he did not consider the condition to be a serious medical problem. Dr. Wilson went on to explain that patients who have fibromyalgia are very functional all the time and are rarely continuously followed by a physician. More tellingly, Dr. Lindsey, plaintiff's treating physician and medical expert, when asked, testified that he did not consider fibromyalgia to be a serious health condition.

The Court, therefore, finds the summary judgment evidence in this case to be undisputed that fibromyalgia is not a serious health condition as that term is defined in the FMLA.¹³ Although her fibromyalgia may, and apparently does, require that plaintiff be periodically examined by her doctor, such periodic examination does not equate to the treatment contemplated by 29 U.S.C. § 2611(11).¹⁴

With regard to the question whether fibromyalgia rendered plaintiff unable to perform the functions of her position, the summary judgment evidence indicates that plaintiff was diagnosed with fibromyalgia in December 1997, by Dr. Lindsey. However, Dr. Lindsey was not of the opinion that plaintiff's condition would prevent her from doing her job. In fact, after rendering his diagnosis and proposing a course of treatment, Dr. Lindsey released plaintiff to return to work with no restrictions on her activities. Dr. Lindsey's conclusions with regard to the effect of fibromyalgia on plaintiff's ability to work were concurred in by Dow's medical expert, Dr. Merlin Wilson. Both doctors agreed that fibromyalgia does not render a person unable to work and, in fact, that work and other physical activity would actually benefit a person with such a condition.¹⁵

The Court, therefore, also finds the evidence to be undisputed that plaintiff's condition of fibromyalgia did not render her unable to perform the functions of her job. Thus, plaintiff has not proven either one of the two elements necessary to establish her eligibility under the FMLA, i.e., that her fibromyalgia is a serious health condition and that it rendered her unable to perform the functions of her position.

Even if plaintiff could establish her eligibility under the FMLA, in order to establish a prima facie case of FMLA discrimination, she must also prove that the adverse employment decision which she suffered was made because of her request for FMLA leave.

Under the FMLA, an employee must give the employer sufficient information to reasonably apprize it of the employee's request to take time off for a serious health condition.¹⁶ In this case, Dow contends that plaintiff failed to comply with this requirement.

Plaintiff's physician released her to return to work with no restrictions by a certificate which he signed on December 22, 1997. In a letter dated December 29, 1997, he notified Dow of her fibromyalgia, stating that "... [s]he...