This is the first time we have had occasion to construe the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601-2619 (1994), which established important rights that protect millions of American employees.
Plaintiff John Hodgens sued his former employer, General Dynamics Corporation *156 (“General Dynamics” or “GD”), for allegedly terminating his employment because he took necessary medical' leave that was protected under the FMLA. His complaint further alleged that his discharge constituted discrimination based on his disability (high blood pressure and atrial fibrillation), in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101-12213 (1994). The district court granted GD’s motion for summary judgment. The court found that Hodgens’s leave was not protected under the FMLA because he did not have a “serious health condition,” as required by the Act. 29 U.S.C. § 2612(a)(1)(D). And the court rejected his ADA claim on the ground that his medical condition, after taking account of mitigating treatment, did not constitute a disability within the meaning of the ADA 42 U.S.C. § 12102(2)(A). Athough we rely on different reasoning, we affirm the grant of summary judgment.
Facts
We recount the facts and draw all reasonable inferences in the light most favorable to Hodgens, as we must when we review a grant of summary judgment.
See DeNovellis v. Shalala,
His performance was evaluated quite highly during his years in program planning. GD’s evaluation system (as applied to his positions with the company) consisted of an annual ranking, covering the period beginning March 1 of one year through the end of February of the next. Similarly situated employees (in the same or similar job titles, pay grades, etc.) were placed in “peer” or “rank” groups and then numerically “ranked” based on performance. The employees in a particular rank group were evaluated by all supervisors of such employees, at a meeting where performance was discussed and rankings determined by consensus. During the three years in which Hodgens worked in program planning, he was ranked first (among four or five) in his peer group.
In September 1991, the program planning function at Quonset Point was eliminated and Hodgens was reassigned to the production control area, where he worked until his termination in July 1994. Unlike program planning—where Hodgens had tracked costs and performed a data auditing function, not requiring a deep knowledge of construction procedures—production control, was “hands on” work, requiring familiarity with the details of submarine hull and components manufacturing. Because Hodgens had not previously done this type of work, he was at a disadvantagе relative to his co-workers who did have such experience. As a result, Hod-gens’s. performance fell. In 1992, he was ranked eighth of ten; the employees who ranked ninth and tenth were laid off that year as part of a reduction in force (“RIF”). In 1993, Hodgens ranked seventh of eleven in his rank group. Hodgens was concerned about his performance in production control, and especially worried about the possibility that his low performance might lead to his being laid off if there were to be another RIF.
For his first two years in production control, Hodgens performed sound dampening functions (a process by which submarines are soundproofed). He performed this part of his duties in a satisfactory manner; his last evaluation covering the period 1993-94 stated that he did an “excellent job in sound dampening.” At some point during this period, however, GD decided to change its employees’ responsibilities from specializing in a particular function to include all aspects of a project. Hodgens was assigned to “Module 82,” an area on the Seawolf submarine. His duties included monitoring and facilitating the work on the module, filling work orders, maintaining proper material flow, and solving production problems. He worked on Module 82 between April and the beginning of August 1993.
It was during this period that Hodgens began to experience medical problems, including chest рains, visual problems, and pro *157 fuse perspiration. These began in approximately June or July 1993. On August 4, he began to see his doctor, Dr. Joanne Wilkinson. She was “most concerned” that his symptoms, coupled with his history of hypertension (high blood pressure or HBP), might indicate that he was suffering' from angina, which could be extremely serious or even fatal. She therefore advised Hodgens to undergo a stress test and an electrocardiogram (EKG). Dr. Wilkinson continued to see Hod-gens on frequent occasions throughout August, during which time she was unable either to make a diagnosis or to rule out angina. During some of these visits, Hod-gens’s blood pressure was “way up,” and Dr. Wilkinson continued to treat Hodgens as if he had angina.
During the period of these visits, from August 4 until September 27, Hodgens did not return to work. According to him, this was because of his need for numerous visits to Dr. Wilkinson and other physicians for evaluation and treatment, and because he wanted to be sure he did not do anything that might aggravate any potential heart condition. Dr. Wilkinson testified at her deposition that she thought it was “reasonable” for Hodgens to stay home from work until he got the results of his stress test, although, if her patient had wanted to return to work during the interim, she would have been “comfortable” with that.
Dr. Wilkinson also treated Hodgens for hypertension, prescribing a combination of medications, and for acute anxiety reactions. As part of the treatment for the latter, Dr. Wilkinson referred Hodgens to a psychologist for counseling to help reduce his stress. According to Hodgens’s testimony, he had never previously experienced the degree of stress that he experienced in Module 82. Dr. Wilkinson also referred Hodgens to Dr. Jacobs, an ophthalmologist, because of his visual problems. Dr. Jacobs determined that he was suffering from migraine auras.
On September 13,1993, Dr. Wilkinson told Hodgens that the results of his EKG, MRI and stress test were normal. She was able to rule out a stroke or a serious neurological problem, but she was still unable to rule out the possibility of angina. Nevertheless, she cleared Hodgens to return to work as of September 20. He did not return on that day, however, because he felt ill in his car and had to return home. He did return to work on September 21. As a matter of General Dynamics policy, GD’s company nurse had to examine any employee, such as Hodgens, who had been out of work for more than five days because of illness. During her examination, the nurse detected that Hod-gens was experiencing atrial fibrillation (irregular heartbeat) and that his blood pressure was elevated. She therefore refused to .allow him to return to work and suggested that he see his doctor immediately.
Hodgens did so, and Dr. Wilkinson diagnosed him as suffering from atrial fibrillation, a serious and potentially life-threatening heart condition. After treating him, by prescribing medication to thin his blood in order to prevent a stroke, Dr. Wilkinson told Hod-gens he could return to work on September 27. She restricted him to working half-days during the first week, and to working a light-duty schedule for the following three weeks.
Hodgens returned to work on September 27. General Dynamics changed his assignment so that he was no longer part of a module; according to GD, Module 82 was nearing completion. Instead, until December 1993, Hodgens was assigned exclusively to performing sound dampening tasks.
Shortly thereafter, Hodgens had to take additional intermittent medical leave to deal with an ear problem. His hearing problem manifested itself on September 29, 1993, and he saw a physician six times in three months. On January 7, 1994, he had ear surgery on an outpatient basis. The surgery left him dizzy and fatigued; in order to recuperate, he required medication and bed rest for several days. He returned to work on January 11. In February, he was assigned to the machine shop (GD says this was in March). Here, his duties were, according to Hodgens, “low-level, demeaning, and not the type normally performed by Senior Planners.” He was no longer performing sound dampening duties. Instead, another employee was assigned to those duties, an employee who Hodgens claims was less experienced and less qualified to perform them.
*158 In April 1994, Hodgens asked Ms new supervisor fоr vacation leave to handle a family emergency. His supervisor responded that he was taking “too much time off,” and issued a verbal warmng about Ms attendance.
On May 10, Hodgens met with his former supervisor, and received Ms annual evaluation covering the period March 1993 through February 1994. The evaluation contained the statement: “Make every effort to have your absenteeism fall within the company guidelines.”
At the same May 10 meeting, the supervisor told him he was being laid off for lack of work, effective July 8, 1994. His performance had been ranked seventh among seven members of Ms rank group for the year ending February 1994.
Hodgens brought suit in district court, alleging that Ms termination violated the FMLA because it was an adverse action taken on the basis of his having availed himself of protected leave. He also alleged that it violated the ADA because it was based on Ms disabilities. 1 General Dynamics filed a motion for summary judgment, contending that Hodgens failed to establish a prima facie ease under the FMLA because he did not suffer from a “serious health condition.” GD also argued that Hodgens is not protected by the ADA because Ms conditions did not constitute a “disability.” The district court granted GD’s motion. According to the court, “an employee’s absence [from work] must be necessary to enable the employee to receive treatment. If an employee can obtain treatment without missing work, any period of absence cannot be attributed to the need to receive treatment.” As for the ADA, the court held that, taMng into account the ameliorative effects of Hodgens’s medications, his medical conditions did not constitute a disability under the ADA.
I
We review grants of summary judgment de novo.
Dubois v. United States Dep’t of Agric.,
“ ‘The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ”
DeNovellis,
*159 II
Because our circuit has not previously-had occasion to consider the Family and Medical Leave Act of 1993, we set forth some background at the outset. “The FMLA was enacted to help working men and women balance the conflicting demands of work and personal life. It does so by recognizing that there will be times in a person’s life when that person is incapable of performing her duties for medical reasons.” Price
v. City of Fort Wayne,
The twin purposes of the FMLA are to “balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1) & (2). Among the findings prompting the Act was Congress’s belief that “there is inadequate job security' for employees who have serious health conditions that prevent them from working for temporary periods.” 29 U.S.C. § 2601(a)(4). The FMLA seeks to accomplish its purposes “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(3).
The FMLA contains two distinct types of provisions. First, it creates a series of substantive rights. Eligible employees “shall be entitled” to up to twelve weeks of unpaid leave per year for any one of the following purposes: when the employee has “a serious health condition that makes [him or her] unable to perform the functions of [his or her] position,” 29 U.S.C. § 2612(a)(1)(D); to care for a close family member with such a condition, 29 U.S.C. § 2612(a)(1)(C); or because of the birth, adoption, or placement in foster care of a child, 29 U.S.C. § 2612(a)(1)(A) & (B). See also 29 U.S.C. § 2611(11); 29 C.F.R. §§ 825.100(a), 825.114 (1997) (defining a “serious health condition”). Following a qualified absence, the employee is entitled to return to the same position or an alternate position with equivalent pay, benefits, and working conditions, and without loss of accrued seniority. 29 U.S.C. § 2614(a)(1); 29 C.F.R. §§ 825.100(e) (1997). The FMLA also provides for “intermittent” leave, which allows an employee to take such leave intermittently “when medically necessary,” such as to attend appointments with a health care provider for necessary treatment of a serious health condition. 29 U.S.C. § 2612(b); 29 C.F.R. § 825.117 (1997) (defining requirements for intermittent leave).
These rights are essentially prescriptive, “set[ting] substantive floors” for conduct by employers, and creating “entitlements” for employees.
2
Diaz v. Fort Wayne Foundry Corp.,
In addition to creating the above entitlements, the FMLA provides protection in the event an employee is discriminated against for exercising those rights. 3 See 29 U.S.C. *160 § 2615(a)(1) & (2); 29 C.F.R. § 825.220 (1997). In particular, “[a]n employer is prohibited from discriminating against employees ... who have used FMLA leave.” 4 29 C.F.R. § 825.220(c). Nor may employers “use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). For any such violation, the employer is subject to a claim for compensatory damages and, unless the court finds the violation occurred in good faith, additional, liquidated damages. 29 U.S.C. § 2617(a)(1)(A). These provisions are essentially proscriptive.
It is this proscriptive group of violations of the Act that is at issue in the present case.
5
Hodgens claims that his termination violated the FMLA because it was prompted by the fact that he took sick leave to which he was entitled under the statute. In such a case, the employer’s motive is relevant, and the issue is whether the employer took the adverse action because of a prohibited reason or for a legitimate nondiscriminatory reason. Such issues are analogous to those raised in cases involving other types of discrimination, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e through 2000e-17. In such cases, courts have created a framework for analyzing the tricky issue of motivation.
See McDonnell Douglas Corp. v. Green,
McDonnell Douglas
allocates the burdens of production and persuasion in accordance with a three-step procedure.
See McDonnell Douglas,
To make out a prima facie ease of retaliation, Hodgens must show that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection between the employee’s protectеd activity and the employer’s adverse employment action.
See Randlett v. Shalala,
Ill
We will follow McDonnell Douglas’s three-step process in analyzing Hodgens’s claim—that hi's termination' violated the FMLA because it was prompted by the fact .that he took sick leave to which he was entitled under the statute. The first step in our analysis is to determine whether Hod-gens has satisfied all three elements of his prima facie case. There is no dispute as to the second element: his termination was an adverse action. General Dynamics disputes the first and third elements of Hodgens’s prima facie case. •
A
General Dynamics asserts that Hodgens has failed to satisfy the first element of his prima facie case. It contends that his absences were not protected by the FMLA for two alternative reasons.
1
First, according to GD, Hodgens was not even entitled to medical leave under the FMLA because he did not suffer from a “serious health condition” as the statute requires. The district court granted summary judgment, to General Dynamics largely on this basis. For the reasons set forth below, we hold that Hodgens did suffer from a “serious health condition” within the meaning of the FMLA.
The FMLA entitles an employee to twelve workweeks 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). The Act defines a “serious health condition” as
an 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.
29 U.S.C. § 2611(11). Hodgens does not argue that he received any inpatient care for his condition;, thus, § 2611(11)(A), does not apply. He does, however, contend that his visits to Dr. Wilkinson constituted “continuing treatment by a health care provider.”
Under the applicable Department of Labor regulations, 6
*162 § 825.114 (a) For purposes of FMLA, “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:
7
(2) Any period of incapacity requiring absence from work, school, or other regular daily activities, of more than three calendar days, 8 that also involves continuing treatment by (or under the supervision of) a health care provider; or
(3) Continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days; or for prenatal care.
(b) “Continuing treatment by a health care provider” means one or more of the following:
(1) The employee or family member in question is treated two or more times for the injury or illness by a health care provider.
Normally this would require visits to the health care provider or to a nurse or physician’s assistant under direct supervision of the health care provider.
(2) The employee or family member is treated for the injury or illness two or more times by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider, or is treated for the injury or illness 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-—for example, a course of medication or therapy—to resolve the health condition.
(3)The employee or family member is under the continuing supervision of, but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability which cannot be cured. Examples include persons with Alzheimer’s, persons who have suffered a severe stroke, or persons in the terminal stages of a disease who may not be receiving active medical treatment.
29 C.F.R. § 825.114(a) & (b) (1993).
Hodgens suffered from numerous symptoms in July and August 1993. Dr. Wilkinson examined him and, concerned about angina and its serious implications, ordered a series of tests directed toward diagnosing the cause and nature of his problem, with a view toward prescribing treatment (which she eventually did, although she nevеr was able to rule out angina). Then between September 22 and 27, Hodgens was diagnosed with atrial fibrillation, and again was required to make many visits to Dr. Wilkinson’s office. This latter period constituted more than three consecutive days’ worth of absences from work for a serious health condition. And these absences were medically neces *163 sary: Hodgens’s treating physician, Dr. Wilkinson, filled out a work-restriction form—at the top of which appeared the date September 22—stating September 27 as the date on which Hodgens could return to work. Dr. Wilkinson’s form carries.the inference that that entire period of absence was medically necessary, and GD nowhere rebuts that inference. Indeed, on September 21, GD’s own nurse refused to let Hodgens return to work at least in part because of his atrial fibrillation. Thus, we cannot accept GD’s claim, based on Dr. Wilkinson’s initially clearing Hodgens to return to. work on September 20, that Hodgens’s health condition did not prevent him from working within the meaning of the FMLA during the period September 22-27.
At least the September 22-27 diagnosis and treatment program met the three day requirement of 29 C.F.R. § 825.114(a)(2) (1993), as long as there was continuing treatment under § 825.114(b). Hodgens clearly satisfied the requirements of § 825.114(b)(1), at least sufficient to satisfy summary judgment, because he had two or more treatments by a health care provider. He also fits within § 825.114(b)(2) because he hаd seen a physician at least once and been placed on a treatment regimen of medication.
See Price v. Marathon Cheese Corp.,
General Dynamics argues that many of Hodgens’s earlier absences were not covered by the FMLA because “Dr. Wilkinson was never able to diagnose precisely what caused [Hodgens’s] symptoms.” Def. Br. at 22. It seems unlikely that Congress intended to punish people who are unlucky enough to develop new diseases, or to suffer serious symptoms for some period of time before the medical profession is able to diagnose the cause of the problem. Indeed, one reason for taking “intermittent leave” under the FMLA would be to visit the doctor for purposes of diagnosis and treatment, even if the employee does not take leave for the periods in between such visits. It would seem that Congress intended to include visits to a doctor when the employee has symptoms that are eventually diagnosed as constituting a serious health condition, even if, at the time of the initial medical appointments, the illness has not yet been diagnosed nor its degree of seriousness determined. The. Labor Department’s final regulations support this interpretation:- “Treatment for purposes of paragraph (a) of this section [defining ‘serious health condition’ in terms of ‘treatment’ received, inter alia] includes (but is not limited to) exаminations to determine if a serious health condition exists and evaluations of the condition.” 29 C.F.R. § 825.114(b) (1997) (emphasis added). Thus, as long as Hodgens satisfied, at some point in time, the “more than three consecutive days” requirement for establishing a serious health condition, his intermittent absences for less than four days (even for portions of one day) were protected under the FMLA if they were necessary “to determine if a serious health condition exists,” id., or to treat such a condition. This is true even if the intermittent absences occurred before the consecutive absences.
In addition to § 825.114(a)(2), Hodgens fits within § 825.114(a)(3). If not treated, Hodgens’s illness could have led to a lot more absences from work, or could even have proved fatal, thus bringing him within the ambit of § 825.114(a)(3). Subsection (a)(3) also requires him to meet the definition of continuing treatment under one of the subsections of § 825.114(b). As noted supra, he clearly satisfied the requirements of subsections (b)(1) and (b)(2), at least sufficient to survive summary judgment. With all inferences taken in his favor, the issue is trialworthy, i.e., a trier of fact could find that he met all statutory requirements to show that he did suffer from a “serious health condition,” and so his medically necessary leave was protected by the FMLA to the extent it was necessitated by that condition.
2
The district court’s alternative reason for rejecting Hodgens’s FMLA claim is that “there is no evidence that [his health] condition rendered him unable to perform the functions of his рosition,” as required in 29 U.S.C. § 2612(a)(1)(D). The court therefore concluded that his absences were not protected conduct under the FMLA. We re *164 ject this contention as well. The court apparently read the statute to require Hodgens to be actually incapacitated, in the sense of medically too sick to work, for any absence that was to be protected by the FMLA.
We disagree. The statutory language— “unable to perform” his job—in 29 U.S.C. § 2612(a)(1)(D) does not necessarily mean that an employee’s physical condition itself “actually incapacitate^]” him and prevents him from working. The statute could also be read to protect absences from work for whatever time the employee needs in order to be diagnosed and treated for a serious medical condition. Under this reading of the statutory language, the employee may be found to be “unable to perform” his job if his medical appointments conflict with his work (and the other statutory requirements are met), even if he is not “too sick to work.” The text of the statute does not specify which of these two interpretations of “unable to perform” (or any other) was intended by Congress.
In determining which interpretation to adopt, we must consider the fact that the FMLA is a remedial statute.
Cf. Arnold v. United Parcel Serv., Inc.,
The legislative history of the FMLA supports this reading.
The requirement that the employee be unable to perform his or her job functions does not mean in each instance that the employee must literally be so physically and mentally incapacitated that he or she is generally unable to work.... [I]f the employee must be physically absent from work from time to time in order to receive the treatment, it follows as a matter of common sense that the employee is, during the time of the treatments, temporarily “unable to perform the functions of his or her position” for purposes of [§ 2612(a)(1)(D) ] and therefore eligible for leave for the time necessary to receive the treatments.
S. Rep. No. 103-3, pt. 1, at 25 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 27 (emphasis added); see id. at 29, 1993 U.S.C.C.A.N. at 31 (noting the “general test that either the underlying hеalth condition or the treatment for it requires that the employee be absent from work on a recurring basis or for more than a few days for treatment or recovery ” (emphasis added)).
Our interpretation is further buttressed by the Department of Labor’s final regulations. 9 The final version of 29 C.F.R. § 825.114(a) (1997), like the corresponding interim regulation, defines “serious health condition” as involving (1) inpatient care or (2) continuing treatment. Under the rubric of continuing treatment, the regulation describes “incapacity” as “inability to work ... due to the serious health condition, treatment therefor, or recovery therefrom.” 29 C.F.R. § 825.114(a)(2)(i) (emphasis added). In a similar vein, 29 C.F.R. § 825.114(b) (1997) reads as follows: “Treatment for purposes of paragraph (a) of this section [defining ‘serious health condition’ in terms of ‘treatment’ received, inter alia] includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition” (emphasis added). See also 29 C.F.R. § 825.115 (1997) (“An employee who must be absent from work to receive medical *165 treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.”).
It is thus apparent that the agency charged with interpreting the FMLA—and filling in any gaps or ambiguities in the Act— believed that the Act should be interpreted broadly enough to protect absences from work that are necessary for the purpose of having one’s medical condition diagnosed and treated, such as those at issue here. The agency did not interpret the statutory language—that Hodgens’s health condition render him “unable to perform” his work—as requiring him to be “too sick to work.” The agency’s interpretation is entitled to deference.
See Chevron,
We conclude that Hodgens would be entitled to survive summary judgment if a rational trier of fact could, find that at least four consecutive days’ worth of Hodgens’s absences were medically necessary and therefore rendered him “unable to perform” his job, within the meaning of 29 U.S.C. § 2612(a)(1)(D), for those days. Because a rational juror could so find, we hold that at least some of his leave was covered by the FMLA. Therefore the district court erred to the extent that it predicated its grant of summary judgment on the ground that there was no FMLA-qualifying leave at issue.
B
Thus far, we have found that, at the summary judgment stage, Hоdgens has satisfied the first element of his prima facie case, by availing himself of a protected right under the FMLA, because at least some of the leave Hodgens took during 1993 and 1994 was FMLA-related. Nevertheless, GD argues that most of Hodgens’s absences were not in fact protected leave under the FMLA, and that, it was these wore-FMLA absences that motivated it to evaluate Hodgens unfavorably, plus the quality of his performance relative to his peers.
'■ This argument goes to the third element of Hodgens’s prima facie case: whether he has made a sufficient showing of a causal connection between his taking FMLA-protected leave and GD’s decision to include him in its RIF and therefore to terminate his employment.
GD admits that Hodgens’s supervisor warned him that he was taking “too much time off,” and that this warning came shortly after Hodgens had taken several days off for ear surgery. GD also concedes that its evaluation of Hodgens one month later advised him to “make every effort to have [his] absenteeism fall within company guidelines.” Additionally, during its April 1994 RIF, GD decided which employees to lay off based on a ranking that considered Hodgens’s absentee rate, as well as his performance during prior time periods and that performance was diminished in part due to Hodgens’s absences, some of which were FMLA-protected visits to Dr. Wilkinson regarding his heart condition. This is sufficient to make out a prima facie case that Hodgens’s absences were at least one factor in his low performance evaluation and hence in his dismissal.
The prima facie burden is “quite easy to meet.”
Villanueva v. Wellesley College,
IV
Having disposed of the challenge to the first step of the McDonnell Douglas analysis (Hodgens’s prima facie ease), we turn now to the remaining steps: whether General Dynamics articulated a legitimate nondiseriminatory reason for terminating Hodgens’s employment, and, if so, whether Hodgens has demonstrated, at least to the level of trial-worthiness, that the reason was a pretext, and that he was, in reality, discharged discriminatorily on the basis of his having availed himself of a right protected by the Act, namely, the right to take medically necessary leave time. We conclude that Hod-gens failed to demonstrate that a reasonable trier of fact could find his inclusion in the RIF to be based on his having taken FMLA leave.
A
Even though Hodgens has established a prima facie case of retaliation, General Dynamics has articulated a legitimate nondiscriminatory reason for terminating him.
GD stated that Hodgens was transferred out of program planning and eventually to Module 82 for legitimate business reasons, including a realignment of staff that resulted from earlier RIFs, i.e., from RIFs that preceded Hodgens’s taking any FMLA-related medical leave. GD has shown that its April 1994 RIF was legitimate and economically necessary. And GD has submitted evidence that Hodgens’s performance in Module 82 was below par, in any event significantly lower than the performance of all similarly situated Module 82 workers (project managers). 11 For present purposes, GD has sufficiently articulated a legitimate reason for its adverse actions against Hodgens.
B
Hodgens cannot and does not claim that an employer cannot transfer employees from one department to another or reduce the overall size of its staff if there is a legitimate business reason to do so. The FMLA certainly does not prevent such transfers or RIFs. An employer is entitled to reduce and/or reorganize its staff; efficiency is a legitimate goal. But an employer may not use its RIF/reorganization/improved-effieiency rationale as a pretext to mask actual discrimination or retaliation; the mere incantation of the mantra of “efficiency” is not a talisman insulating an employer from liability for invidious discrimination.
See McDonnell Douglas,
1
The competing considerations that underlie a pretext analysis are especially problematical in a ease like Hodgens’s. Under the
McDonnell Douglas
framework, in order to rebut the presumption that arises upon the establishment of a prima facie case, the employer need only produce enough competent evidence which, if taken as true, would permit a rational factfinder to conclude that the challenged employment action was taken for a “legitimate, nondiscriminatory reason,”
Burdine,
At this point, Hodgens must demonstrate that there is a trialworthy issue of pretext. If we were to permit GD’s mere assertion of a legitimate reason to discharge Hodgens to insulate it against liability, then this employer could circumvent the anti-discrimination provisions of the FMLA (and of other statutes) simply by making a unilаteral decision to transfer the employee (Hodgens) to a new work station where he has low seniority and/or is unable to perform the new job as well as others who have been in that position for a longer time. That way, when a RIF occurs (another decision made solely by the employer), Hodgens, as a recent transferee, would be the low person on the totem pole, whether the order of termination proceeds based upon seniority in the position or upon the quality of performance to date. The decision as to what basis to use in deciding who gets RIFed is, of course, also a decision made unilaterally by the employer.
Because of the availability of seemingly neutral rationales under which an employer can hide its discriminatory intent, and because of the difficulty of accurately determining whether an employer’s motive is legitimate or is a pretext for discrimination, there is reason to be concerned about the possibility that an employer could manipulate its decisions to purge employees it wanted to eliminate.
See Weldon v. Kraft, Inc.,
This means that, where a plaintiff in a discrimination ease makes out a prima facie case and the issue becomes whether the employer’s stated nondiscriminatory reason is a pretext for discrimination, courts must be “particularly cautious” about granting the employer’s motion for summary judgment.
Stepanischen v. Merchants Despatch Transp. Corp.,
We recognize that courts in other circuits have addressed similar FMLA claims and, “[g]ranting [the] plaintiff the benefit of every favorable inference,” have concluded that “the pattern of actions taken by [the] defen
*168
dant precludes summary judgment concerning [the] defendant’s motivation.”
Marx v. Schnuck Markets, Inc.,
Of course, those decisions, like all decisions to affirm or reverse grants of summary judgment, were fact-based. In each case, the issue was a factual question of motivation: could a reasonable jury find that the adverse action was taken because of the employee’s protected conduct rather than because of other nondiscriminatory- reasons?
The nonmoving plaintiff may demonstrate pretext either indirectly by showing that the employer’s stated reasons for its adverse action were not credible, or directly by showing that that action was more likely motivated by a discriminatory reason.
See Burdine,
In addition, close temporal proximity between two events may give rise to an inference of causal connection. Thus, “protected conduct closely followed by adverse action may justify an inference of retaliatory motive.”
Marx,
In assessing discriminatory motive, a court may also consider other factors, including “among other things, ‘the historical background of the ... decision’; ‘[t]he spe
*169
cific sequence of events leading up to the challenged decision’; ‘[departures from the normal procedural sequence’; ... ‘[any] contemporary statements by members of the decisionmaking body,’ ”
Reno v. Bossier Parish Sch. Bd.,
2
Applying these principles, we must determine whether there is sufficient evidence favoring Hodgens for “a fair-minded jury [to] return a verdict in his favor,”
Anderson,
Based on the record here, a rational jury could not reach such a conclusion. It is undisputed that a number of Hodgens’s problems on the job took place long before he took his first medical leave. For example, in 1985, in a previous RIF, GD closed down Hodgens’s prior work site in Quincy altogether. Hodgens was out of work for three years as a result. After he was re-hired at the Quonset Point facility and doing well for three years, the program planning function in which he was excelling was eliminated in 1991, resulting in his reassignment to production control. This was still two years before the onset of the medical conditions at issue in the present case, June 1993. For the year beginning March 1,1991, Hodgens’s performance was ranked eighth out of ten employees in his peer group, and the two employees who ranked behind him were laid off that year as part of another RIF. In the year beginning March 1, 1992, Hodgens ranked seventh of eleven in his rank group. Hodgens’s poor performance in the two years preceding his illness was a source of great concern to him, particularly as it related to the possibility that he might become the next casualty'of GD’s efficiency-related RIFs.
Shortly before the first relevant manifestation of his heart problems, Hodgens was reassigned to work in Module 82, where his performance problems became even worse. He worked on Module 82 between April and early August 1993. Thus, even without parsing the competing evidence as to which portions of Hodgens’s poor performance on Module- 82 were related or unrelated to the absences caused by his HBP and his potential heart condition, we note that all of the foregoing events—putting Hodgens in an extremely unfavorable ■ position at work—occurred prior to his taking any FMLA-protected medical leave. This is obvious with respect to the period prior to his being assigned to Module 82; and it also applies to his poor performance in Module 82 between April and August 1993, which preceded his *170 FMLA-protected leave. 12 So none of these events could have been motivated by Hod-gens’s having taken FMLA-protected leave.
Further, Hodgens failed to submit any evidence, direct or circumstantial, that General Dynamics’s well-justified and documented decision to lay off more workers in April 1994 was a mere pretext for retaliation against Hodgens for exercising his right to take medical leave. On the contrary, the RIF itself seems real enough and the legitimate business .need for it remains unshaken. There were RIFs before Hodgens became ill, and there is no evidence that there was anything pretextual about GD’s general business strategy of reducing its work force in order to maintain its profit levels.
Nevertheless, while the RIF as a whole appears legitimate, there remains the question of whether GD’s selection of Hodgens in particular to be laid off was based in any way upon his having exercised his FMLA right to take necessary medical leave. GD presented evidence that Hodgens’s ranking for the year beginning March 1, 1993 (including the period of his Module 82 position as well as the period of his FMLA-protected absences, plus less than one month in the machine shop to which he half-heartedly argues he would not have been assigned if he had not taken FMLA leave) was based on a comparison with those senior planners having similar duties, and that he ranked lowest among his peers in terms of performance. Hodgens himself told his doctor that he was experiencing pressure at work because of a “dеcrease in performance because of inexperience in [his] present job.”
In order to overcome the weight of these facts, Hodgens offered the following evidence to dispute the legitimacy of GD’s rationale for including him in the layoff, i.e., to show that it was a mere pretext: (1) shortly after he returned from a significant amount of FMLA-protected medical leave, his supervisor told him he should do something to reduce his “excessive absences”; (2) his evaluation contained the statement, “Make every effort to have your absenteeism fall within the company guidelines”; (3) his termination was based on the low performance evaluation which he received shortly after returning from his protected medical leave, and this temporal proximity bespeaks a retaliatory intent; and (4) a memorandum, entitled “Justification Regarding Drop in Rank Position,” specifically acknowledged that his absentee rate.was a factor in his low performance rating and therefore in his termination. Thus, in the language of
Arlington Heights,
Hodgens contends that the “specific sequence of events” leading up to his termination, coupled with the contemporary statements by his supervisor (written and oral) warning him about his “excessive absences,” constitute proof that GD’s decision to terminate him was motivated by his having availed himself of FMLA-protected medical leave.
Arlington Heights,
As noted
supra,
close temporal proximity between two events may give rise to an inference of causal connection. Therefore, “it may be significant that [Hodgens’s termination, and the warning that preceded it, occurred] shortly after his having taken FMLA leave.”
Williams v. Shenango, Inc.,
While Hodgens is correct that temporal proximity
may
give rise to a “suggestion] of retaliation,”
Oliver,
*171 Here, the circumstantial fact of temporal proximity is weakened considerably by the history of GD’s prior non-discriminatory RIFs and of Hodgens’s poor work performance. To strengthen his case, Hodgens has produced evidence that his supervisor specifically referred to his “excessive absences” and his termination was based on an evaluation and justification memo reflecting the same concern. According to Hodgens, these contemporaneous statements by the dеcision-making authority (or its agent) demonstrate persuasively that GD’s decision to rank him at the bottom of his peer group and to choose him as the employee from that group to lay off in the 1994 RIF were motivated by retaliatory animus. The inference is strengthened by the fact that Hodgens had a good work history for three of the five years since he was rehired by GD at Quonset Point and for twenty years previously in Quincy. On the other hand, the inference is weakened by his performance problems over the two years prior to his taking FMLA-protected medical leave, although it must be remembered that Hodgens survived the earlier RIFs, even if only by the skin of his teeth.
Statements by supervisors carrying the inference that the supervisor harbored animus against protected classes of people or conduct are clearly probative of pretext,
Kelley v. Airborne Freight Corp.,
GD argues that the statements by Hod-gens’s supervisor are not as damning as Hod-gens would have us believe: they refer only to his “excessive absences,” and GD has offered evidence that a great many of Hod-gens’s absences were not FMLA-protected.
Cf. Hilti Inc.,
Hodgens disputes the merits of GD’s attempt to' parse his absences into FMLAprotected and non-FMLA-proteeted. He argues that it was not unreasonable for him to remain absent from work for medical reasons during the entire period that he did, because during this time his physician performed diagnostic tests in an effort to determine how serious his medical condition was and,' if indеed it was heart-related, whether it would be safe for him to return to work before it was brought under control. Dr. Wilkinson was “most concerned” that his symptoms and *172 history could indicate that he was suffering from angina, which she was never able to rule out during the entire period of nearly two months that Hodgens was out of work. If he was suffering from angina, then any stress, including work, would increase the chance that he could have a heart attack. Similarly, his atrial fibrillation, if not treated properly, could lead to a stroke.
The problem that.Hodgens cannot overcome is that, while Dr. Wilkinson may indeed have been concerned about his condition, she did not tell him that his medical condition required him to stay home from work from August 4 through September 21, 1993. To the contrary, while she thought it was “reasonable” for Hodgens to want to stay home from work pending the outcome of his tests, she in fact recommended that he return to work despite his medical condition and its potential risks. As GD notes, Hodgens could, for example, have kept any given medical appointment in the morning, and then come back to work for the remainder of the day, which he did do on some occasions but not on others. Thus, apart from the period from September 22-27, while Hodgens’s medical condition clearly did require him to be absent from work during the times necessary for his medical visits* it did not require the vast majority of his аbsences during August and September; The remainder of his absences between August 4 and September 21 as well as after September 27 were therefore not protected by the FMLA, i.e., the time that was not actually necessary for him to attend medical appointments related to his heart condition. 14 GD was not precluded from taking those unprotected absences into account in evaluating Hodgens’s performance and in determining whether to include Hod-gens in the.RIF.
The question of summary judgment here is a close one because both GD and Hodgens have presented probative evidence tending to support their respective versions of the facts, on the question whether GD’s reason for discharging Hodgens was legitimate or merely a pretext to retaliate against him for taking FMLA-protected medical leave. The weighing of such alternative factual scenarios would ordinarily be left to the finder of fact after trial. But on this record, the weight of the evidence does not “present[ ] a sufficient disagreement to require submission to a jury”; it is “so one-sided that one party must prevail as a matter of law.”
Anderson, 477
U.S. at 251-52,
V
Hodgens also makes a claim under the ADA. We affirm the district court’s grant of summary judgment on the ADA claim on the same basis that we affirm on the FMLA claim. Hodgens never demonstrated, to the level of sufficiency required on a motion for summary judgment, that GD’s stated reason for terminating him—a RIF based on his performance—was a pretext for his asserted disability. Hodgens has certainly not made any more persuasive a demonstration that his layoff was a pretext for discrimination based on his disability than he did to show that it was a pretext for retaliation based on his having taken FMLA leave.
Therefore, his ADA claim must fail, and the grant of summary judgment to General Dynamics must be affirmed, albeit on a different basis than that relied upon by the
*173
district court. We will affirm a correct result reached by the court below “on any independently sufficient ground made manifest by the record.”
Palmacci v. Umpierrez,
The grant of summary judgment to General Dynamics is Affirmed. No costs to either party.
Notes
. In addition to his claims under the federal FMLA and ADA, Hodgens made similar claims under the corresponding provisions of the Rhode Island Parental and Family Medical Leave Act, R.I. Gen. Laws § 28-48-1 et seq., and the Rhode Island Fair Employment Practices Act, R.I. Gen. Laws § 28-5-1 et seq. These state laws require essentially the same elements as the corresponding federal laws. Therefore, our disposition of the federal claims likewise disposes of the parallel state law claims. Hodgens also made claims under the federal Age Discrimination in Employment Act ("ADEA”), 29 U.S.C. § 621 et seq., and under the Rhode Island Civil Rights Act, of 1990, R.I. Gen. Laws § 42-112-1 (a). The district court granted summary judgment against him on these claims, and Hodgens has not appealed.
. The FMLA’s legislative history reveals that it "is based on the same principle as the child labor laws, the minimum wage, Social Security, the safety and health laws, the pension and welfare benefit laws, and other labor laws that establish minimum standards for employment.” S.Rep. No. 3, 103d Cong., 1st Sess. 4 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 6-7.
. "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right prоvided under this subchapter.” 29 U.S.C. § 2615(a)(1). "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2).
For example, if an employer denies an eligible employee the same or similar employment upon returning from FMLA leave, the employer violates the Act. See 29 C.F.R. § 825.220(b) (1997) ("Any violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act.”). *160 The Act is also violated if the employer "interferes with” the employee’s exercise of any other FMLA rights. Id.
. The statute itself does not explicitly make it unlawful to discharge or discriminate against an employee for exercising her rights under the Act (such as placing an employee in a less desirable job because she took medical leave for a serious health condition). Nevertheless, the Act was clearly intended to provide such protection. The Department of Labor regulations implementing the FMLA interpret the Act this way,
see
29 C.F.R. § 825.220(c) ("An employer is prohibited from discriminating against employees ... who have used FMLA leave.”), and those regulations are entitled to deference,
see Chevron USA Inc. v. Natural Resources Defense Council, Inc.,
Such protection can be read into § 2615(a)(1): to discriminate against an employee for exercising his rights under the Act would constitute an ”interfer[ence] with” and a "restrain^] ” of his exercise of those rights. See 29 C.F.R. § 825.220(b) (1997) (Interfering with the exercise of FMLA rights "would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.”)
. For example, Hodgens has not alleged that GD denied him any necessary medical leave, or that it refused to reinstate him after he returned from such leave. Nor does General Dynamics dispute that Hodgens is an eligible employee and that General Dynamics is a covered employer under the provisions of the FMLA. See 29 U.S.C. § 2611(2) & (4).
. Pursuant to his statutory authority, 29 U.S.C. § 2654, the Secretary of Labor promulgated final regulations implementing the FMLA, 29 U.S.C. § 825.100 et seq. (1997), which became effective
on April 6, 1995, 60 Fed.Reg. 2180, 2181 (Jan. 6, 1995). Because Hodgens’s health-related leave and subsequent termination from employment occurred in 1993 and 1994, however, the final *162 regulations do not apply here, and the Secretary’s interim regulations govern this dispute. See 29 C.F.R. § 825.100 etseq. (1993).
We' note that the district court, in this case appears to have applied the final regulations, which are similar to, but not identical with, the applicable interim regulations. But this error need not detain us. The Third Circuit in
Victorelli v. Shadyside Hosp.,
. Subsection 114(a)(1), dealing with inpatient care, is not applicable here.
. The major difference between the interim and the final regulations is that the latter explicitly require more than three consecutive days of medically required absence from work. See 29 C.F.R. § 825.114(a)(2)(i) (1997). It is arguable that we should read the word "consecutive” into the interim regulations as well. We will analyze the present case as if more than three consecutive days’ absence were required; we need not decide the question definitively because, as discussed infra, Hodgens satisfies the time requirement regardless of whether the absences must be consecutive.
. Although the final regulations are not at issue here because they were not yet effective, we may be guided by them insofar as they shed light on our interpretation of the interim regulations.
See Victorelli,
. For example, when the need to obtain treatment and diagnosis is foreseeable, the employee must provide adequate notice and make a "reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer." 29 U.S.C. § 2612(e)(2).
. Of course, to the extent that GD’s evaluation of Hodgens's performance in 1993-94 included consideration of his FMLA-protected absences, this is not a legitimate reason for lowering his evaluation and laying him off. The effects of Hodgens’s FMLA-related leave may not be held against him.
. Indeed, Hodgens’s physician, Dr. Wilkinson, thought that at least some of Hodgens’s medical problems stemmed from his great anxiety over his unsatisfactory performance in his hew job at Module 82, and his fear that his performance might result in his losing his job due to a RIF.
. "Smoking gun” evidence is, of course, not required in order to prove discrimination.
Speen v. Crown Clothing Corp.,
. Dr. Wilkinson restricted Hodgens to working half-days during the first week after he returned to work on September 27, and to working a light-duty schedule for the following three weeks. These absences and restrictions were protected by the FMLA and could not be considered by GD in making employment decisions about Hodgens.