Richard Evans v. Barnes-Jewish , 160 F. App'x 549 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3558
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Richard D. Evans, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Barnes-Jewish Hospital, a Missouri *
not-for-profit corporation; Morrison * [UNPUBLISHED]
Management Specialists, Inc., *
*
Appellees. *
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Submitted: December 20, 2005
Filed: December 27, 2005
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Richard D. Evans appeals the district court’s1 adverse grant of summary
judgment in his action brought under the Family and Medical Leave Act (FMLA) and
state law. Having carefully reviewed the record, we affirm. See Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (de novo standard of
review.)
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
We agree with the district court that Evans failed to establish that defendants’
proffered legitimate, nondiscriminatory reason for his termination from his cafeteria
supervisory position--continued performance deficiencies--was pretextual. See Smith
v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002)
(employee who requests FMLA leave has no greater protection against his
employment being terminated for reasons unrelated to his FMLA request than he did
before submitting request); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832-34
(8th Cir. 2002) (to show pretext, employee must present evidence that creates fact
question as to whether proffered reason was pretextual and creates reasonable
inference that employer acted in retaliation for exercise of FMLA rights). Notably
Evans specifically challenged only one of the thirteen performance deficiencies cited
at his termination. While Evans’s supervisors discussed with him the proper use of
FMLA leave and suggested that he consider alternatives for addressing his parents’
medical needs, these discussions were prompted by Evans’s use of FMLA leave to
perform tasks which could have been done on his off-duty hours, such as picking up
prescriptions, and by Evans’s repeated last-minute notifications that he was taking an
FMLA leave day. Cf. 29 C.F.R. § 825.117 (2005) (employees needing intermittent
FMLA leave must attempt to schedule leave so as not to disrupt employer’s
operations).
As to the state-law claims, we agree with the district court that there was no
evidence of extreme and outrageous conduct, or of conduct that defendants should
have realized involved an unreasonable risk of causing medically significant
emotional distress or mental injury. See St. Anthony’s Med. Ctr. v. H.S.H., 974
S.W.2d 606, 611-12 (Mo. App. 1998) (elements of claims for intentional and
negligent infliction of emotional distress). Finally, we note that ineffective assistance
of counsel is not a basis for reversal. See Glick v. Henderson, 855 F.2d 536, 541 (8th
Cir. 1988).
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Accordingly, we affirm. See 8th Cir. R. 47B. We deny as moot Evans’s five
pending motions and appellees’ motion to strike Evans’s reply brief.
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