Murray v. Red Kap Industries, Inc., 96-60884

Citation124 F.3d 695
Decision Date09 October 1997
Docket NumberNo. 96-60884,96-60884
Parties72 Empl. Prac. Dec. P 45,025, 134 Lab.Cas. P 33,599, 134 Lab.Cas. P 33,601, 4 Wage & Hour Cas.2d (BNA) 233, 11 NDLR P 14 Mary MURRAY, Plaintiff-Appellant, v. RED KAP INDUSTRIES, INC., Defendant-Appellee. Summary Calendar. Fifth Circuit
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jim D. Waide, III, Victor Israel Fleitas, Waide Law Office, Tupelo, MS, for Plaintiff-Appellant.

Ronald L. Roberts, Berkley Neal Huskison, Mitchell, McNutt, Threadgill, Smith & Sams, Columbus, MS, for Defendant-Appellee.

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 missed eight 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 notify her 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 instructed 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 antibiotics 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, March 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 "feeling 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 condition 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 notifying her supervisor. On Friday, a relative called Murray and mentioned that she had heard 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 FMLA 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 respiratory 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 second 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), applying the same legal standard the court used below. RTC 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 point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. London v. MAC Corp. of Am., 44 F.3d 316, 318 (5th Cir.), cert. denied, 516 U.S. 829, 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. Id.

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 when 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.

Under authority granted by the FMLA in 29 U.S.C. § 2654, the Department of Labor ("DOL") has issued final regulations for the act. 2 Murray contends she had a "serious health condition" as defined by the particular DOL regulation that deals with "continuing treatment by a health care provider." This regulation states:

(a) For purposes of FMLA, "serious health condition" entitling an employee 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 involving continuing treatment by a health care provider includes ...:

(i) A period of incapacity (i.e., inability to work, attend school or perform regular other daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three 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 services (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 continuing 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 least 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 times 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 district court assumed that Murray was unable to work during...

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  • Dighello v. Thurston Foods, Inc.
    • United States
    • U.S. District Court — District of Connecticut
    • May 9, 2018
    ...of "serious health condition." Jackson , 2007 WL 2324951, at *9 (citing 29 C.F.R. § 825.114 ). See also Murray v. Red Kap Industries , 124 F.3d 695, 699 (5th Cir.1997) (affirming summary judgment in favor of defendant finding that no serious health condition existed where plaintiff had a re......
  • Dighello v. Thurston Foods, Inc.
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    • U.S. District Court — District of Connecticut
    • May 9, 2018
    ...of "serious health condition." Jackson, 2007 WL 2324951, at *9 (citing 29 C.F.R. § 825.114). See also Murray v. Red Kap Industries, 124 F.3d 695, 699 (5th Cir.1997) (affirming summary judgment in favor of defendant finding that no serious health condition existed where plaintiff had a respi......
  • Boriski v. City of College Station
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    ...care services) or obtained a regimen of continuing treatment under the supervision of a health care provider. Murray v. Red Kap Indus., Inc., 124 F.3d 695, 698 (5th Cir.1997). In this instance, Boriski received both inpatient care for her shoulder condition at the time of her surgery and co......
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    ...See Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 676 (8th Cir. 2000) (citing Hodgens, 144 F.3d at 163); Murray v. Red. Kap, Indus., Inc., 124 F.3d 695, 698 (5th Cir.1997). However, the Court is not aware of any similar binding authority on the matter in the Third Circuit, and is theref......
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6 books & journal articles
  • Family and Medical Leave Act
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2016 Part V. Discrimination In Employment
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    ...for the serious health condition, or recovery from that condition. See 29 C.F.R. §825.114(a)(1), (2)(i); Murray v. Red Kap Indus. Inc., 124 F.3d 695 (5th Cir. 1997); see also Price v. Marathon Cheese , 119 F.3d 330 (5th Cir. 1997) (mild manifestation of carpal tunnel syndrome that did not i......
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    ...for the serious health condition, or recovery from that condition. See 29 C.F.R. §825.114(a)(1), (2)(i); Murray v. Red Kap Indus. Inc., 124 F.3d 695 (5th Cir. 1997); see also Price v. Marathon Cheese , 119 F.3d 330 (5th Cir. 1997) (mild manifestation of carpal tunnel syndrome that did not i......
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    • August 19, 2017
    ...for the serious health condition, or recovery from that condition. See 29 C.F.R. §825.114(a)(1), (2)(i); Murray v. Red Kap Indus. Inc., 124 F.3d 695 (5th Cir. 1997); see also Price v. Marathon Cheese , 119 F.3d 330 (5th Cir. 1997) (mild manifestation of carpal tunnel syndrome that did not i......
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    ...for the serious health condition, or recovery from that condition. See 29 C.F.R. §825.114(a)(1), (2)(i); Murray v. Red Kap Indus. Inc., 124 F.3d 695 (5th Cir. 1997); see also Price v. Marathon Cheese , 119 F.3d 330 (5th Cir. 1997) (mild manifestation of carpal tunnel syndrome that did not i......
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