Sosa v. Coastal Corporation ( 2002 )


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  •                   UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 02-40639
    Summary Calendar
    SONYA SOSA,
    Plaintiff-Appellant,
    VERSUS
    COASTAL CORP; COASTAL MART INC; COASTAL MARKETS LTD,
    Defendants-Appellees.
    Appeal from the United States District Court
    For the Southern District of Texas
    (V-00-CV-17)
    December 16, 2002
    Before JONES, STEWART, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Sonya Sosa appeals the district court’s grant of summary
    judgment to her former employer, Coastal Markets, Ltd., and two
    related   entities,   Coastal    Mart,   Inc.   and    Coastal   Corporation
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
    opinion should not be published and is not precedent except under
    the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    1
    (collectively   “Coastal”),   dismissing   her   claim    that    Coastal
    discharged her for attempting to use the Family and Medical Leave
    Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.      We AFFIRM.
    I.
    Coastal operates a chain of convenience stores.         Sosa began
    working at Coastal store number 3343 in Victoria, Texas, in October
    1998.   She received several bonuses in 1999.     In September 1999,
    Margie Androsky, Coastal’s area sales manager, promoted her to the
    position of manager of Coastal store number 3342.
    On November 9, 1999, Sosa injured her knee on the job.            On
    November 12, 1999, a tumor was discovered in her right femur.         She
    continued to work despite her medical problems.      On December 14,
    1999, one of Sosa’s treating physicians recommended she seek
    evaluation and treatment at the MD Anderson Cancer Treatment Center
    in Houston, Texas. When Sosa made the appointment, she was advised
    that she might need to stay up to five days for treatment if the
    tumor proved to be cancerous.      Sosa testified by affidavit that
    “her supervisors were aware that [her] scheduled treatment at MD
    Anderson would require [her] to be a way [sic] from work for up to
    five days and they had planned accordingly by scheduling another
    manager to work in [her] place.”
    Sosa’s last day of work was on December 26, 1999.           The next
    day, she traveled to Houston for her appointment.        In Houston, she
    learned that the tumor was not cancerous.    She testified that she
    2
    “was advised by [her] treating physician, Dr. Weber, that if [her]
    leg was still hurting, to stay off it and rest the leg for three
    days.”   Sosa returned home the same day, December 27, 1999.
    On December 28, 1999, Androsky learned of Sosa’s diagnosis.
    She telephoned Sosa to inform her that her replacement could not
    work for her the next day, December 29, 1999.              Androsky told Sosa
    she would need to “open” the store.1           Sosa replied that she could
    not   work   because   she   was   in   pain   and   had    another   doctor’s
    appointment on December 29, 1999.           At her deposition, Sosa said
    that Androsky then “told [her she] needed to find [her] assistant
    to come in if [she] couldn’t.”          Sosa responded by saying she “was
    out on a medical leave, and that it was [Androsky’s] responsibility
    to take care of it.”     The women’s conversation deteriorated into a
    shouting match, and one or the other hung up.                Sosa admits she
    spoke to her assistant manager on the evening of December 28, 1999,
    after her conversation with Androsky but did not ask her to open
    the store the next morning.
    On December 29, 1999, no one opened store number 3342.             Sosa
    called Androsky at about 7:30 a.m. to ask why no one had opened the
    store.   Androsky then called her superiors, from whom she received
    permission to fire Sosa.      In the meantime, Sosa went to the store
    and began the opening process.       Androsky then went to the store and
    1
    Because the convenience stores are open twenty-four hours a
    day, opening the store involves daily paperwork and deposits.
    Opening takes place about 6:00 a.m. each day.
    3
    discharged Sosa.
    After her discharge, Sosa requested an internal investigation.
    The   investigation   found    no   cause     to   reverse    the   termination
    decision.     Sosa    then    filed    this    lawsuit,      alleging   Coastal
    discharged her for attempting to use FMLA leave and for interfering
    with her rights under the FMLA.        She also stated a claim under the
    Consolidated Omnibus Reconciliation Act, 29 U.S.C. § 1161 et seq.,
    as well as state law claims.           Coastal and Sosa filed opposing
    motions for summary judgment. The district court granted Coastal’s
    motion but denied Sosa’s.      Sosa now appeals the FMLA portion of the
    district court’s decision.
    II.
    We review a grant of summary judgment de novo.                Chaffin v.
    John H. Carter Co., 
    179 F.3d 316
    , 318 (5th Cir. 1999).                  Summary
    judgment is proper if “the pleadings, depositions, answers to
    interrogatories and admissions on file, together with affidavits,
    if any, show that there is no genuine dispute as to any material
    fact and that the moving      party is entitled to judgment as a matter
    of law.”    
    Id. at 318-19.
             In assessing the summary judgment
    evidence, we must review all the evidence in the record, draw all
    reasonable inferences in favor of the nonmoving party, and make no
    credibility determinations or weigh the evidence.                    Reeves v.
    Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    ,               150 (2000).
    III.
    4
    Under the FMLA, an eligible employee is entitled to a total of
    twelve weeks of leave during any twelve-month period “[b]ecause of
    a serious health condition that makes the employee unable to
    perform the functions of the position of such employee.”   29 U.S.C.
    § 2612(a)(1)(D).   After a qualifying absence, the employer must
    restore the employee to the same position or a comparable position.
    29 U.S.C. § 2614(a)(1).
    When direct evidence is lacking, the familiar McDonnell-
    Douglas burden-shifting framework applies to a claim that an
    employee was penalized for exercising rights guaranteed by the
    FMLA:
    The three-part burden-shifting scheme places the onus on
    the plaintiff alleging retaliatory discharge to establish
    a prima facie case of discrimination by demonstrating
    that: (1) she engaged in a protected activity; (2) the
    employer discharged her; and (3) there is a causal
    connection between the protected activity and the
    discharge.   Once the plaintiff makes this preliminary
    showing, the employer must articulate a legitimate,
    nondiscriminatory reason for the plaintiff's termination.
    If the employer carries this burden of production, the
    presumption raised by the prima facie case is rebutted.
    To defeat summary judgment, the plaintiff must produce
    substantial probative evidence that the proffered reason
    was not the true reason for the employment decision and
    that the real reason was the plaintiff’s participation in
    the protected activity.
    
    Chaffin, 179 F.3d at 319-20
    .
    The parties discuss only Sosa’s ability to show the first
    element of the required prima facie case.    To satisfy the first
    element, Sosa must show that she suffered from a serious health
    condition that made her unable to perform the functions of her
    5
    position.   See 29 U.S.C. § 2612(a)(1)(D); see also Frazier v. Iowa
    Beef Processors, Inc., 
    200 F.3d 1190
    , 1195 (8th Cir. 2000) (holding
    that “an inablity to perform one’s job is a requisite element of a
    FMLA claim”).   The FMLA defines “serious health condition” as “an
    illness, injury, impairment, or physical or mental condition that
    involves . . . continuing treatment by a health care provider.”
    
    Id. § 2611(11),
    cited in Seaman v. CSPH, Inc., 
    179 F.3d 297
    , 302
    (5th Cir. 1999).    The “incapacity” part of the requirement is
    explained in regulations promulgated by the Department of Labor:
    (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
    . . . : (iii) Any period of incapacity or treatment for
    such incapacity due to a chronic serious health
    condition. A chronic serious health condition is one
    which: (A) Requires periodic visits for treatment by a
    health care provider, or by a nurse or physician's
    assistant under direct supervision of a health care
    provider; (B) Continues over an extended period of time
    (including recurring episodes of a single underlying
    condition); and (C) May cause episodic rather than a
    continuing period of incapacity (e.g., asthma, diabetes,
    epilepsy, etc.).
    29 C.F.R. § 825.114(a)(2)(iii). Hence, an employee is protected by
    the FMLA for any period of incapacity or treatment for such
    incapacity due to a chronic serious health condition.
    There is no serious question that Sosa had a tumor in her leg.
    Rather, the question is whether Sosa was incapacitated on the
    morning of December 29, 1999, when she was discharged.     To this
    6
    end,    Sosa   offers   as   evidence   that    she   was   incapacitated    or
    otherwise unable to work her testimony that she was in pain; that
    Dr. Weber had advised her to stay off her leg if it was hurting;
    and that she had a doctor’s appointment some time on December 29,
    1999.
    Sosa’s statement that she could not work because she was in
    pain    is   incompetent     summary   judgment   evidence    because   it   is
    unsubstantiated and conclusory. See Little v. Liquid Air Corp., 
    37 F.3d 1069
    , 1075 (5th Cir. 1994).            Likewise, Sosa’s report of Dr.
    Weber’s order to stay off her leg is inadmissible hearsay.                   See
    Murray v. Red Kap Indus., Inc., 
    124 F.3d 695
    , 698 (5th Cir. 1997).
    This leaves only Sosa’s evidence of her doctor’s appointment on
    December 29, 1999.      It is not clear from the record exactly when
    the doctor’s appointment was scheduled.           Sosa states she attended
    the appointment after she was discharged, which suggests the
    appointment was later in the day. Still, drawing the inferences in
    Sosa’s favor, there is an issue of fact as to whether Sosa’s
    appointment on December 29, 1999, prevented her from opening the
    store that morning.
    In its brief, Coastal states that it terminated Sosa because
    of insubordination—she failed to comply with Androsky’s order that
    she either open the store herself on December 29, 1999, or arrange
    for the assistant manager to open the store.                Assuming Sosa was
    incapacitated on December 29, 1999, due to a doctor’s appointment,
    7
    Coastal could not terminate her for failing to open the store
    herself.     But Sosa’s incapacity on December 29, 1999, did not
    prevent her from calling her assistant the day before to instruct
    her to open the store.       Her refusal to call her assistant was
    insubordination, which is a legitimate nondiscriminatory reason for
    termination.    See Aldrup v. Caldera, 
    274 F.3d 282
    , 286 (5th Cir.
    2001) (“The failure of a subordinate to follow a direct order of a
    supervisor is a legitimate nondiscriminatory reason for taking
    adverse    employment   action.”).        Hence,   Coastal   has   offered   a
    legitimate nondiscriminatory reason for its action.
    Sosa has offered no evidence showing Coastal’s insubordination
    explanation was false, let alone pretextual.           Sosa rightly argues
    that Coastal could not base its decision on her failure to report
    for work as long as she made out a prima facie case of FMLA
    coverage.    But this argument does not extend to her failure to
    instruct her assistant manager to open the store in her place.           She
    does not deny that Androsky ordered her in the alternative to
    arrange for the assistant manager to open the store on December 29,
    1999.2
    IV.
    Because Sosa has failed to demonstrate Coastal’s reason for
    2
    Given our disposition of this case, we need not address Sosa’s
    additional arguments about whether expert medical evidence was
    required to prove her serious medical condition or whether Coastal
    was obligated either to honor her request for FMLA leave or to
    implement the statutory procedures for determining whether the
    leave was warranted.
    8
    her termination was pretextual, the district court did not err in
    granting summary judgment to Coastal and dismissing her claims. We
    therefore AFFIRM.
    9