Jimmy Boyd appeals a summary judgment on his failure to promote claim and termination claim brought under Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq., and the Family Medical Leave Act. Finding no error, we affirm.
I
Boyd, a black male, began employment at State Farm Insurance Company in 1990 in the Administrative Services Department. Terry Vice managed the Department. Boyd was hired by his immediate supervisor Bruce Sutton, who selected Boyd over a Caucasian applicant. Over the course of Boyd’s employment, either or both Sutton and Vice approved Boyd’s numerous raises and promotions. By 1994, Boyd had been promoted to Administrative Services Supervisor III.
There was at least one rough ripple on these otherwise calm waters, however. At a 1993 social event, Sutton called Boyd “Buckwheat.” Boyd took offense to the remark and complained to Vice and Sutton. Vice privately disciplined Sutton for the remark who apologized to Boyd.
Whether this incident was isolated or whether it presaged trouble to come is an issue in this appeal. In December of 1994, Sutton gave Boyd his annual Performance Planning and Review Evaluation (“PPR”),
On June 1,1995, Boyd submitted a written complaint to Sutton for failure to promote him to Supervisor IV. Sutton and Vice refused to promote Boyd on the grounds that he was not qualified for the position. Consequently, on August 14, 1995, Boyd complained to the EEOC that State Farm had not promoted him because of his race. Two weeks after Boyd’s EEOC complaint, State Farm promoted Delores Clemons, a black woman, to Supervisor IV.
Before these events occurred, however, on August 8, 1995, Boyd had requested a medical leave of absence from work. Boyd contended that he suffered from stress and anxiety. Following its policies under the Family Medical Leave Act, as set forth in its handbook, State Farm approved Boyd’s requested leave of absence. Boyd, who had a copy of the handbook, remained absent from work for over five weeks.
During his absence, in response to State Farm’s numerous requests for medical certification as required by the handbook, Boyd submitted a total of three letters written by Drs. Pascoe and Colley, two psychologists who treated him. Each time Boyd responded, State Farm informed him that the letters were insufficient to support his leave of absence and that he should return to work immediately.
On September 6, 1995,' State Farm sent Boyd a written request for medical certification, which also informed Boyd that his absence from work had now been classified as Absent Without Official Leave (“AWOL”) and that Boyd would be subject to termination unless he provided immediate documentation of a medical need for his absence. Boyd submitted a second note from Dr. Col-ley on September 11,1995, which again failed to indicate that his leave of absence was medically required. Consequently, on September 15, 1995, approximately nine days after its written request for documentation, State Farm terminated Boyd. Sutton took no part in the action. At the time of his termination, Boyd had been classified as AWOL for ten days. Shortly before and after State Farm fired Boyd, it had also terminated Lisa Bitters, a Caucasian female, and Johnny Kirby, a Caucasián male, for being AWOL for only three and two days, respectively.
Contending that State Farm refused to promote him and eventually terminated him because of his race, Boyd brought suit under Title VII. Boyd also alleged that his termination violated the FMLA because his absence was protected leave under the Act. The district court granted summary judgment for State Farm on each of Boyd’s claims. In granting summary judgment on the FMLA claim, the district court elected to disregard Boyd’s expert affidavit. On April 2, 1998, Boyd filed this appeal.
II
We review the district court’s grant of summary judgment
de novo. Walton v. Bisco Industries,
III
A
Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). We continue to adhere to the evidentiary framework of Title VII claims as established by the Supreme Court in
McDonnell Douglas Corp. v. Green,
B
(1)
Boyd contends that the district court erred in granting summary judgment on his Title VII failure to promote claim. We assume, as did the district court, that Boyd established a prima facie case on this claim. Our immediate inquiry is whether State Farm met its burden of offering a legitimate reason for. its adverse employment action. In its motion for summary judgment, State Farm asserted that Boyd was not qualified for promotion. State Farm produced Boyd’s 1994 PPR, which stated that Boyd had only achieved seven of ten performance goals, that he was on schedule to achieve an eighth goal, but that he would not achieve the last two goals. The PPR further stated that Boyd needed to make his work system more productive and improve on organization, communication, and project planning. Finally, State Farm emphasized that Boyd never challenged the accuracy of the PPR, but indeed indicated his agreement with it by signing the PPR on the date it was completed.
In opposition, Boyd argued that he only had the burden of creating a triable issue of pretext. Boyd asserted that at a 1993 social gathering Sutton called him “Buckwheat,” and on some other unspecified occasion had also called him a “Porch Monkey.” Relying solely on his affidavit testimony, Boyd further contended that someone told him “State Farm does not hire many people like you ... you should be happy just to be here.” However, Boyd identified neither who made this remark, nor when. Finally, Boyd concluded that the timing of his 1994 PPR created a triable issue of pretext because it occurred only after he complained of the alleged racist remarks.
The district court granted summary judgment in favor of State Farm. The district court held that even if the “Porch Monkey” and “Buckwheat” comments were assumed to be racist, the comments were merely stray remarks and did not imply discrimination. The district court rejected the remaining comments as self-serving and unsupported. Regarding the 1994 PPR, the district court reasoned that the “same actor” principle rebutted the inference that Sutton would discriminate against Boyd because Sutton was the same individual who initially hired Boyd.
(2)
Because Boyd focused solely on proving pretext and offered no evidence from which a reasonable fact-finder could infer that race motivated State Farm’s decision not to promote him, the ultimate issue for this court is whether Boyd’s failure to promote claim is within the
Rhodes
subcategory of eases where “[a] jury may be able to infer discriminatory intent ... solely from substantial evidence that the employer’s proffered reasons are false.”
Rhodes,
During Boyd’s five-year tenure at State Farm, Sutton referred to Boyd as “Buckwheat”
1
only once. The district court properly categorized this isolated utterance as a stray remark from which no reasonable fact-finder could infer race discrimination. The mere utterance of a racial epithet is not indicia of discrimination under Title VII.
Anderson v. Douglas & Lomason Co., Inc.,
In the end, Boyd’s summary judgment evidence has fallen considerably short of the mark. State Farm’s uncontroverted evidence on its refusal to promote Boyd is sufficient to negate the existence of any material fact on the issue of its discriminatory motive.
Wallace v. Texas Tech University,
C
(1)
Boyd next contends that the district court erred in granting summary judgment on his Title VII discriminatory termination claim. Again, we will assume that Boyd established a prima facie case of discrimination. We thus turn to determine whether Boyd successfully rebutted State Farm’s proffered reason for his termination. 4
State Farm argued that it terminated Boyd because Boyd had been AWOL from work for ten days and had failed to prove that his absence was medically necessary under its FMLA policy. State Farm offered the affidavit testimony of the human resources personnel who made the decision to fire Boyd, and the September 6, 1995 notice it sent Boyd informing him of his AWOL status. In response, Boyd asserted that State Farm’s proffered reason was pretext because initially he had been out on sick leave before his status was changed to AWOL. Boyd further maintained that other Caucasian employees were also out on sick leave but not terminated for being AWOL. The district court rejected both arguments and granted State Farm’s motion for summary judgment.
(2)
We have previously recognized that proof that similarly-situated employees outside of plaintiffs protected class were treated differently may assist in establishing the pri-ma facie case.
Walton,
IV
A
(1)
Boyd’s final argument is that the district court erred in granting summary judgment
The district court characterized the affidavit as “vague and conclusory” because it contained no details as to how, why, or to what extent Boyd was allegedly incapacitated. The district court acknowledged that the expert’s statements were made two years after Boyd’s termination and reflected no professional opinion formed contemporaneously with the events at issue. The district court further stated that the affidavit provided no foundation for Dr. Emory’s conclusions and spoke only in the most general of terms. In short, the district court excluded the affidavit.
On appeal, Boyd argues that Dr. Emory’s affidavit could not be excluded on the grounds assigned because Fed.R.Evid. 705 permitted Dr. Emory to give his opinion without prior disclosure of the underlying facts and data. Boyd contends that the district court was required to permit Dr. Emory to supplement his opinion if the court deemed the disclosure of facts, data and reasons necessary to decide the motion for summary judgment.
(2)
With respect to expert testimony offered in the summary judgment context, the trial court has broad discretion to rule on the admissibility of the expert’s evidence and its ruling must be sustained unless manifestly erroneous.
Christophersen v. Allied-Signal Co.,
It is against this backdrop that we decide the issue before us. We need not address State Farm’s argument that Dr. Emory’s opinion is “after-the-fact,” because notwithstanding when the opinion was made, it is insufficient to create an issue of fact as to whether Boyd suffered a serious health condition under the FMLA. The opinion offers nothing more than the unsupported conclusion that Boyd’s medical condition left him “unable to perform his job.” It is a well established rule that without more than his credentials and a subjective opinion, an expert’s testimony that a medical condition simply “is so.” is not admissible.
Hayter v. City of Mount Vernon,
(1)
Boyd also contends that his termination violated the FMLA because State Farm failed to wait fifteen days after its written request for medical certification to terminate him. Boyd based his claim on 29 C.F.R. § 825.305(b), which states in pertinent part:
“... [T]he employee must provide the requested certification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer’s [written] request), unless it is not practicable under the particular circumstances to do so despite the employee’s diligent good faith efforts.”
State Farm counters that because Boyd knew of the medical certification requirement and had made numerous attempts to comply with the FMLA, the fifteen-day allowance was not required. The district court agreed and held that since Boyd had answered State Farm’s written request for medical certification the issue of whether Boyd’s termination in less than fifteen days violated the FMLA was moot.
(2)
We agree that a fifteen-day allowance is not required in this case. State Farm provided Boyd a copy of its FMLA policy, which he reviewed immediately before requesting leave from work. Moreover, State Farm urged Boyd several times by phone to comply with the FMLA medical certification requirement. In response to these requests Boyd submitted a total of three doctors’ notes, none of which diagnosed his absence as medically required. Thus, it is clear that before Boyd was terminated, he had been given more than adequate notice of the FMLA certification requirement and had made several attempts to comply with the Act. Next, State Farm sent its written notice, to which Boyd responded with yet another physician’s note on September 11, 1995. This note also failed support Boyd’s claim that his absence from work was medically necessary.
The regulation at issue, 29 C.F.R. 825.305(b), simply provides that an employee must be allowed a minimum of fifteen days to respond to an employer’s written request for medical certification. Here, Boyd submitted the medical information in approximately five days after he received State Farm’s written request, and consequently, did not need the full fifteen days in which to respond. In such situations, we hold as a matter of law, that when an employee submits medical information in response to an employer’s written request, 29 C.F.R. 825.305(b) is no longer implicated and the employer is not required to wait fifteen days before taking action on the employee’s request for medical leave. The district court appropriately regarded the issue as moot under the circumstances presented here. The district court’s grant of summary judgment on the FMLA claim in favor of State Farm is AFFIRMED.
V
For the aforementioned reasons, the judgment of the district court is hereby
AFFIRMED.
Notes
. "Buckwheat” is the stereotypical black character from the "Our Gang” or “Little Rascals” television series. However, in the context of employment discrimination law, the term “Buckwheat” is generally considered to be a racial slur or epithet.
See Daniels v. Essex Group, Inc.,
.
See also, Brown v. CSC Logic, Inc.,
. The district court applied the "same actor” inference to dispose of this issue. Our disposal of Boyd's failure to promote claim under
Rhodes
and its progeny forecloses the necessity of a second analysis of the case under the "same actor” inference.
Brown,
. We apply the same analysis to Boyd’s termination claim as applied to Boyd's failure to promote claim.
See Walton,
. Dr. Emory's affidavit, in pertinent part, stated: "[Biased upon my review of the records and my examination of Mr. Boyd, it is my professional opinion that Mr. Boyd’s health condition rendered him unable to perform his job at State Farm, and in fact left him disabled. Continued work at State Farm would have increased his health problems. In my professional opinion, the only solution to Mr. Boyd’s medical condition would have been a leave of absence from State Farm. At a minimum, Mr. Boyd required a leave of absence to obtain treatment from his condition.”