Kaylor v. Fannin Regional Hospital, Inc.Kaylor v. Fannin Regional Hospital, Inc.
ORDER
Thе captioned case is before the court for consideration after a bench trial was held on September 16 and 17, 1996, in United States District Court, Gainesville, Georgia. Plaintiffs causes of action are a case of first impression in this court as plaintiffs claims arise under the Family Medical Leave Act, Pub.L. 103-3, 107 Stat. 6, which was enacted on February 5, 1993. In accordance with
I. Findings of Fact
Jurisdiction is uncontested and is based on federal question jurisdiction pursuant to
Defendant Fannin Regional Hospital (“Fannin Hospital”) is an acute care facility which serves North Georgia, Southeast Tennessee, and Southwest North Carolina. Defendant is located in Blue Ridge, Georgia. Plaintiff is á resident of Mineral Bluff, Georgia, and was employed as a C.T. technician by Fannin Hospital beginning in March of 1989 until his termination on February 8, 1996. Plaintiffs duties included cat-scans and routine x-rays. The parties agree that plaintiff is a competent and skilled C.T. technician, and during his almost six (6) years in Fannin Hospital’s employ, plaintiff received very good to excellent performance reviews from his supervisors.
Prior to his employment at Fannin Hospital, plaintiff injured his back on two occasions. Plaintiffs back injuries resulted in back surgery and epidural blocks. Plaintiff
In May of 1991, plaintiff signed an acknowledgment of his receipt of the Fannin Hospital’s policies and procedures as outlined in its Employee Handbook. This handbook states that plaintiffs employment was “terminable at the will of either myself or the Employers for any reason_” 1 The handbook also provides that plaintiff was entitled to eighty (80) hours of vacation leave, two floater days, and ninety-six (96) hours of sick leave accruing each year. Unused sick leave in one year could be carried over to the following year. Plaintiff was provided with copies of Fannin Hospital’s Employee Handbook at his original orientation. Plaintiff was subsequently provided with any changes to Fannin Hospital’s administrative policies and procedures on an annual basis throughout his employment.
Fannin Hospital provided notice of the FMLA after its enactment in 1993 by providing a copy of its Family and Medical Leave policy with' its updated Employee Handbooks. Fannin Hospital also set up posters discussing the FMLA in employee break rooms. Furthermore, Fannin Hospital instructed employees on their rights under the FMLA during Risk Management employee sessions.
During the early part of plaintiff’s employment with Fannin Hospital, his supervisor was Mr. Danny Patterson. Mr. Patterson allowed employees to take days off pursuant to oral approval and by writing the proposed day off pn the wall calendar in the departs ment. Mr. Patterson also allowed employees to substitute accrued paid leave for unscheduled time off as long as changes to time cards were done before they were sent to payroll. Mr. Patterson left Fannin Hospital in September of 1993 and was replaced by Ms. Sue Patterson (no familial relation).
In July of 1994, plaintiff was confronted by Ms. Patterson conсerning his attempt to change an entry on his employee time card. On July 13, 1994, plaintiff failed to call in or report for work as scheduled. Following his absence, plaintiff retrieved his previous week’s time card and attempted to alter his time card to reflect a vacation day for the day he missed. Ms. Patterson confronted plaintiff concerning this alteration and informed him that his actions were improper.
Ms. Patterson ran things differently than her predecessor, Mr. Patterson. Plaintiff was informed that, pursuant to hospital policy, in order to utilize accrued paid time off for his absence, he must provide notice and fill out a form in advance of his anticipated absence. As plaintiff testified at trial, at the end of this conversation plaintiff expressed his frustration by telling Ms. Patterson to “stuff it.” In addition, Ms. Tammy Arp, an employee in the radiology department, testified at trial that it was the standard practice in the radiology department under Ms. Patterson to request leave by written notice and thereafter write the day off on the wall calendar in order to alert other employees once approval was granted by Ms. Patterson. Accordingly, the court finds that plaintiff knew that the proper procedure for requesting leave was to fill out a leave request form and receive prior approval.
On December 24, 1994, plaintiff experienced a flare-up of his back injury. On December 27, 1994, plaintiff was admitted to Northside Hospital for back pain and numbness in his lower back and leg on one side of his body. On that same day, plaintiff’s wife, Mrs. Debbie Kaylor, called Ms. Patterson to report plaintiff’s hospitalization and his anticipated absence from work for at least several days. Dr. Myerson treated plaintiff during his stay at Northside Hospital.
Plaintiff remained in Northside Hospital until December 31, 1994, after which he was placed on bed rest for two weeks by Dr. Myerson. Plaintiff utilized approximately 120 hours, or three weeks, of eligible FMLA leave during his hospitalization and convalescence. Once the hospital was informed of plaintiffs illness, plaintiffs wife was requested to come to Fannin Hospital and pick up a packet of necessary forms relating to рlaintiffs leave with instructions for their completion. Pursuant to Fannin’s routine practice, included in these forms were materials explaining plaintiffs rights and obligations under the FMLA. Plaintiffs wife picked up these forms from the radiology department at some point during plaintiffs convalescence.
Plaintiff returned to work on January 18, 1995, after Dr. Myerson signed a certificate of fitness to return to work. Plaintiffs medical certification from his doctor authorizing his return to work did not mention any follow-up appointments or regimen of care. Plaintiff did have an appointment scheduled for February 8,1995, which he had scheduled at a prior routine visit to Dr. Myerson in November of 1994. Upon his discharge from the hospital on December 31, 1994, Dr. Myerson instructed plaintiff that any followup could take place during the course of his previously scheduled regular appointments.
• Prior to his hospitalization, plaintiff failed to submit а leave request form for his scheduled doctor’s appointment or otherwise notify his supervisor of any planned absence. During the period of plaintiffs hospitalization, his return to work on January 18, 1995, and the ensuing two weeks he was employed at Fan-nin Hospital, the court finds that the plaintiff again neglected to mention the February 3 appointment to his supervisor, Ms. Patterson.
Plaintiff did not inform Ms. Patterson of his appointment with Dr. Myerson on February 3 until January 30, 1995. Plaintiff originally verbally requested the day off as a vacation day. Ms. Patterson informed him he could not have the day off because the hospital would be “short-staffed” without his presence and that a written request was the proper procedure for requesting leave. Plaintiff subsequently filled out a written request form requesting the day off to attend the appointment. Ms. Patterson again denied plaintiffs request. Plaintiff also recorded his appointment for February 3 in the patient scheduling book and on the wall calendar in the radiology department. It should be noted, however, that writing a requested day off on the wall calendar did not grant a day off pursuant to hospital policy.
Ms. Patterson requested that plaintiff reschedule his appointment because a number of individuals in the radiology department had already been granted leave on that day, 2 including Ms. Patterson, and plaintiffs presence was needed in order to avoid inadequate staffing. There is no evidence that plaintiff made any effort to reschedule his appointment with Dr. Myerson. To the contrary, all evidence suggests that plaintiff never contacted Dr. Myerson after- January 19, 1995. 3 Furthermore, plaintiff never canceled his appointment with Dr. Myerson.
On February 2, 1995, plaintiff informed Ms. Amy Chesser, secretary for the radiology department, that he would not be at work regardless of whether Ms. Patterson approved his absence. Ms. Chesser reported plaintiffs comments to Ms. Patterson. Later that same day, Ms. Patterson again asked plaintiff whether he would be at work as scheduled. Plaintiff responded, “I guess I will.”
On the night of February 2, plaintiff asserts he came down with a stomach virus which caused excessive vomiting and diarrhea. Plaintiff awoke at approximately 6:00 a.m. and called the radiology department at Fannin Hospital to report he was sick and unable to come to work. When no one answered, plaintiff called the emergency room at approximately 6:40 a.m. and asked the employee on duty to leave a message on the board in the radiology department advising radiology department personnel that he was sick and would not be in. Plaintiff did not call Fannin Hospital again to explain his absence.
The accepted hospital practice for calling in sick at Fannin Hospital is to call the immediate supervisor and inform him or her of the absence. Plaintiff claims he never called Ms. Patterson because he knew that Ms. Patterson was traveling to Nashville, TN, sometime that day. This does not explain why he did not leave si message on her answering machine explaining his absence or why he did not call the hospital personnel department or radiology department later that day explaining his absence.
As a result of plaintiffs absence on February 3, several patients had to be rescheduled and the remaining radiоlogy staff was forced to cover for plaintiff. The hospital had only one employee able to do cat-scans during the day, Ms. Arp, and she testified that she did not feel qualified to operate the cat-scan machine at that time. As a result, only one emergency cat-scan was done on February 3, 1995, with the other patients rescheduled.
Despite his illness, plaintiffs daughter picked him up at approximately 6:45 a.m. on February 2 and drove plaintiff to his scheduled appointment with Dr. Myerson. The drive to Dr. Myerson’s office in Atlanta was approximately two hours long. Plaintiff returned to his home in the early afternoon of that same day.
Dr. Myerson testified in his deposition that plaintiffs appointment on February 3 related solely to treatment for his back condition, was not out of any “medical necessity,” and was a routine scheduled appointment. Deposition of Dr. Myerson, Joint Exhibit 20, pg. 21. Plaintiff complained of increased back pain, but no mention of plaintiffs sickness was made in Dr. Myerson’s notes for that visit even though Dr. Myerson testified he “would have recorded what he had for dinner the night before if it was pertinent.” Id. at 24. In fact, Dr. Myerson testified that in his opinion plaintiff could have functioned in his job as a C.T. technician that day. Id. at 12. Accordingly, the court finds that plaintiffs scheduled appointment with Dr. Myerson was a routine appointment and not an emergency.
Based on the circumstances surrounding plaintiffs absence, Ms. Tipton directed that plaintiffs time card be removed from its customary location in the radiology department. Ms. Tipton left a message for plaintiff that he was to go directly to the personnel department upon his return to work on February 6, 1995. When plaintiff returned to work on February 6, he reported to the personnel department and was informed that hе was being suspended until Wednesday, February 8, 1995, pending an investigation into the circumstances surrounding his absence. Ms. Tipton gave no reason for plaintiffs suspension to the plaintiff at this time.
Later on February 6, plaintiffs wife came by Fannin Hospital to pick up her husband’s paycheck. During the course of her visit, Mrs. Kaylor had a conversation with an employee in the radiology department, Ms. Colleen Runyon. Mrs. Kaylor, visibly upset, asked Ms. Runyon, ‘What the hell is going
On February 6 and 7, Fannin managemеnt performed an investigation of plaintiffs absence. Fannin management learned of plaintiffs statements regarding his intention to miss work regardless of Ms. Patterson’s approval. Fannin management concluded that plaintiff had lied in regard to his illness on February 3 and never had any intention of showing up for work, despite his assurances he would be present. Fannin management also learned of the comments made by Mr. Kaylor’s wife and daughter.
On Wednesday, February 8, 1995, plaintiff returned to Fannin Hospital for the meeting as instructed. Attending the meeting were plaintiff, Ms. Tipton, and Mr. Marvin Stern, the hospital administrator. Plaintiff was told he was terminated for abuse of sick time. Plaintiff was given an opportunity to explain his absence and he stated he was sick with a stomach virus. Plaintiff requested that his time cards be pulled and his sick hours computed. Ms. Tipton did so, specifically highlighting the hours plaintiff had taken on FMLA and noting that these hours were not held against plaintiff. After the meeting, plaintiff later produced a certificate that he was at Dr. Myerson’s office on February 3, but the evidence does not indicate when he gave this certificate to hospital personnel. Plaintiff’s separation papers 4 filed with the Georgia Department of Labor state that he was terminated for his “abuse of sick leave.” 5
Conclusions of Law
Among the findings prompting The Family Medical and Leave 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.”
The FMLA is a hybrid act; first it creates a series of statutory rights for an employee which “shall be unlawful” for the employer to violate, then it also provides protection in the event an individual is discriminated against for utilizing those rights.
See generally,
29 U.S.C. 2615(a)(1) & (2); Nancy Daspit, Comment,
Family Medical Leave Act of 1993: A Great Idea but a “Rube Goldberg” Solution?,
43 Emory L.J. 1351 (Fall, 1994). In addition, the Department of Labor has promulgated extensive regulations regulating the FMLA’s implementation in thе workplace.
See
The FMLA applies to private sector employers of fifty (50) or more employees and provides eligible employees up to twelve (12)
This case concerns two alleged violations of the FMLA: 1) that plaintiff was denied the right to attend intermittent treatment by his health provider, and 2) that plaintiff was terminated because of prior valid use of FMLA leave. The court will consider each in turn.
I. Plaintiffs Doctor’s Appointment on February 3,1995.
Plaintiffs first cause of action is properly brought under
The legislative history of the FMLA is silent regarding the proper legal standard to be used when reviewing FMLA claims under
The FMLA read as a whole further supports a strict liability standard.
See King v. St. Vincent’s Hospital,
Finally, the legislative history of the Act evinces Congress’s intent to implement the FMLA as a successor to federal labor laws establishing minimum standards for employment:
The Family and Medical Leave Act (FMLA) accommodates the important societal interest in assisting families, by establishing a minimum labor standard for leave. The bill 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. 103-3 at 6, U.S.C.C.A.N. at 7.
Accordingly, by establishing a “minimum standard” for employee leave, Congress apparently intended for FMLA leave protected by
Accordingly, the court will look solely, to the FMLA to determine whethеr Fannin Hospital has abridged plaintiffs FMLA leave rights under
In order to be granted intermittent leave under the FMLA, an employee must pass through a series of substantive requirements and procedural hoops as provided by the statute. These statutory requirements and procedures include:
1) the leave must be “medically necessary,” for a “serious health condition,”
2) the employee must make a reasonable effort to schedule the treatment so as not to “disrupt unduly the operations of the employer,”
3) the employee must give at least thirty (30) days notice to the employer,
Plaintiff failed to satisfy these conditions adequately in order to qualify for intermittent leave on February 3,1995, and therefore fails to establish that his FMLA rights have been violated under
When enacting the FMLA, Congress contemplated that intermittent leave would be available only when medically necessary for a serious health condition.
See
H.R.Rep. No. 8, 103d Cong., 1st Sess. Pt. 1, at 58 (1993). In the FMLA’s legislative history, the Senate committee report listed the following as examples of “serious health conditions”: “[B]ack conditions requiring extensive therapy or surgical procedures ... spinal injuries ... injuries caused by serious accidents on or off the job.” S.Rep. No. 103-3 at 29, 1993 U.S.C.C.A.N. at 31. In addition,
Whether plaintiff satisfied the requirement that his appointment on February 3 was “medically necessary” is arguable, however.
See
The FMLA and subsequent regulations promulgated by the Department of Labor, require the employee to consult with the employer when planning medical treatment. The employee must' also make a “reasonable effort” to reschedule when an appointment may “disrupt unduly” the employer’s operations, subject to the approval of the health care provider.
The court finds the plaintiff never reasonably attempted to reschedule his appointment after being fold his absence on February 3, 1995, would leave Fannin Hospital without adequate staffing in the radiology department. There is no evidence that plaintiff contacted Dr. Myerson about rescheduling. In fact, Dr. Myerson’s testimony suggests that he would have been amenable to rescheduling the appointment since plaintiffs visit was routine. Although evidence is present which suggests that another appointment may not have been available until two to three months later, this situation could have been avoided had plaintiff informed his supervisor earlier, and the possibility of a later appointment does not justify not attempting to reschedule at all.
Furthermore, plaintiffs actions during the week of January 30 indicate that he never intended to make a “reasonable effort” to reschedule at all. Plaintiff continually misled his supervisor by claiming he would attend work on February 3, yet never even canceled his appointment with Dr. Myerson on that date. Plaintiffs actions indicate he intended to attend the February 3 appointment regardless of the effect upon staffing at Fannin Hospital. In contrast to the “reasonable effort” required by the FMLA, plaintiff made no effort whatsoever to cooperate with Fan-nin Hospital.
The FMLA and accompanying regulations promulgated by the Department of Labor clearly contemplate thirty (30) days, notice to be given for any intermittent leave.
Plaintiff testified at trial that he “never knew of the FMLA” and suggests a lack of employer notice as an excuse for his failure to follow FMLA procedure. See
Finally, plaintiff’s argument that he was entitled to “unforeseeable” FMLA leave is unpersuasive. Plaintiffs “stomach virus” cannot be “unforeseeable” FMLA leave because a stomach virus is not a serious health condition covered by the FMLA. 29 C.F.R. 825.114(e). Furthermore, as discussed above, plaintiff’s visit to Dr. Myerson for his degenerative back disease was not an emergency. Plaintiff had this appointment since November, 1994, he never canceled the appointment, and Dr. Myerson considered the appointment “routine.”
Under
An employee returning from FMLA leave is not entitled to greater rights than he had prior to leave.
II. Plaintiffs Termination on February 8, 1995.
Plaintiff’s second cause of action falls under
Unlike
Section 105(a)(2) makes it also unlawful for an employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title. This “opposition” clause is derived from title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-3(a)) and is intended to be construed in the same manner....
Title VTI’s opposition clause “forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.”
S.Rep. No. 103-3 at 34, 1993 U.S.C.C.A.N. at 36
(quoting McDonnell Douglas,
The language of the FMLA makes plain the purpose of Congress to assure equality of employment opportunities for those individuals who assert their rights under the FMLA. The burden shifting approach best effectuates the intent of the FMLA to prohibit discrimination against employees using FMLA leave because it can most accurately balance providing employees a broader basis for proving an employer violated the FMLA while also protecting the interests of employers.
See McDonnell Douglas,
In a claim brought pursuant to the FMLA, the plaintiff bears the ultimate burden of proving that FMLA leave was the determinative factor in the employment decision at issue.
There are three methods by which an FMLA plaintiff may establish a
prima facie
case of FMLA discrimination: by direct evidence of discriminatory intent; by circumstantial evidence of discriminatory intent through the use of the paradigm postulated in
McDonnell Douglas;
or by establishing a pattern of discrimination through the use of statistical evidence.
Hazelwood School District v. United States,
The easiest of these, from a plaintiffs perspective, is the use of direct evi7 dence. Thus, if an employer states, “[Y]ou are fired because you used FMLA leave,” the discharged employee may use that statement to establish a prima facie case of FMLA discrimination. “[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, ... constitute direct evidence of discrimination.”
Earley,
The second method of establishing a
prima facie
case is through the use of circumstantial еvidence as set forth originally in
The third method by which a plaintiff may establish a
'prima fane
case of FMLA discrimination is through the use of statistical evidence.
See Pace v. Southern Ry. Sys.,
Once the plaintiff has established a
prima facie
ease — regardless of which method is used — the employer/defendant must come forward with a legitimate nondiscriminatory reason to justify the employment de-cisión. This is not a shift in the burden of persuasion but simply requires the employer to present evidence to explain its actions. If successful, the employer defeats the presumption of intentional discrimination created by the
prima facie
case.
See St. Mary’s Honor Center,
Once the presumption of intentional discrimination is defeated, the plaintiff bears the burden of producing evidence to show that the articulated legitimate nondiserimina-tory reason is merely a pretext for discrimination.
Burdine,
Having established a legal framework in which to analyze the allegation of unlawful FMLA discrimination, the court now proceeds to the ease sub judice. Plaintiff has presented neither direct evidence 10 nor statistical evidence of FMLA discrimination, and therefore the court will proceed directly to the McDonnell Douglas burden shifting analysis.
Plaintiff asserts he was terminated pursuant to a “no-fault” policy which terminated any employee who had an “excessive” number of absences. Plaintiff claims that Fannin Hospital counted his FMLA leave toward the excessive absences, thus violating the FMLA, In the alternative, plaintiff claims that he was terminated beqause he justifiably exercised his FMLA right to intermittent leave on February 3, 1995, and therefore Fannin
Plaintiff fails to establish a prima facie ease of FMLA discrimination for “excessive absenteeism.” No evidence credibly suggеsts that Fannin Hospital terminated plaintiffs employment because of plaintiffs three week FMLA leave in late 1994 and early 1995. To the contrary, testimony at trial showed that Fannin Hospital provided FMLA leave promptly to plaintiff after he experienced problems with his back and has shown great flexibility with plaintiff concerning his physical limitations. Testimony concerning Fannin Hospital’s past practice regarding FMLA leave to other employees also showed an unwavering pattern of compliance with the FMLA. There is no evidence to suggest plaintiffs prior FMLA leave was a motivating factor in Fannin Hospital’s decision to discharge plaintiff.
Plaintiff points to isolated documents which state that plaintiff was terminated in part because of “excessive use of sick time.” Plaintiffs focus on isolated instances of Fan-nin Hospital’s use of the word “excessive” is unpersuasivе in light of the overwhelming evidence that plaintiff was discharged for lying and misleading Fannin Hospital about his job attendance. First, plaintiff presented no credible evidence besides conclusory allegations that Fannin Hospital used a “no-fault” policy on excessive absenteeism. Second, plaintiff still had sick leave “coming to him” at the time of his discharge, undercutting any notion that plaintiff was terminated pursuant to a “no-fault” policy. Third, “excessive use of sick time” is a standard generic phrase which could apply to any number of actions, including attempting fraudulent sick leave. Moreover, all of plaintiffs documents are consistent with “abuse of sick time” as the reason for plaintiffs termination.
As to plaintiffs allegation that plaintiff was discharged in retaliation for taking intermittent leave on February 3, plaintiff has failed to show Fannin Hospital discriminated in violation of the FMLA. As discussed above, plaintiffs appointment on February 3 was not valid intermittent leave, nor was it valid “unforeseeable” leave. Accordingly, Fannin Hospital could not discriminate against FMLA leave that never occurred.
Moreover, even if plaintiff established a prima facie case, Fannin Hospital has produced a legitimate and non-discriminatory reason for plaintiffs discharge. Fan-nin Hospital believed plaintiff lied about being sick and never intended to be at work on February 3,1995. In addition, the actions of plaintiffs family on February 6,1995 contributed to the “general feeling” that plaintiff should be terminated.
Whether Fannin Hospital is correct that plaintiff lied or his family made credible threats concerning Ms. Patterson is irrelevant. Perhaps, as plaintiff testified at trial, plaintiff was sick the morning of February 3, the vomiting aggravated his back, he fortuitously did not cancel his appointment, his daughter fortuitously could pick him up at 6:45 a.m. and drive him to Dr. Myerson’s officе, Dr. Myerson simply forgot to mark down plaintiffs virus on his medical sheet, Dr. Myerson was wrong that the visit was “routine,” plaintiff always intended to go to work on February 3, and consequently Fan-nin Hospital’s rush to judgment was in error. Perhaps Ms. Patterson and Fannin Hospital overreacted to the statements made by plaintiffs family and Ms. Patterson’s call to the local police was not warranted. The wisdom of discharging plaintiff, however, is irrelevant to plaintiffs claim. Defendant’s explanation is not related to FMLA discrimination and therefore satisfies the second prong of the
McDonnell Douglas
test. Fannin Hospital needs only to “produce” an explanation, not justify it.
See Burdine,
Having produced the nondiseriminatory reason for discharge, plaintiff must produce sufficient evidence to establish pretext. No credible еvidence suggests Fannin Hospital’s reason for discharging plaintiff is pretextual. To the contrary, as discussed throughout this opinion, the overwhelming evidence supports Fannin Hospital’s claim it discharged plaintiff because of plaintiffs lying and misleading
In the present case, the plaintiff has failed to prove his discharge was motivated by his valid FMLA leave for his initial back surgery, or to show the proffered reason for his discharge is pretext for an improper motive. Accordingly, plaintiff has failed to establish that Fannin Hospital violated his rights pursuant to the FMLA.
Conclusion
Accordingly, based upon the foregoing discussion, the court finds that Fannin Hospital did not violate the FMLA and hereby renders judgment in favor of the defendant. The clerk shall enter judgment accordingly.
Notes
. The Fannin Hospital Employee Handbook states: “I understand and agree that my employment at FRH is for an indefinite term and is terminable at any time at the will of either myself or the Employer for any reason.... I HAVE READ AND UNDERSTAND THE ABOVE STATEMENT AND AGREE TO READ THE EMPLOYEE HANDBOOK."
. Ms. Patterson informed plaintiff that two of the four Radiology Department employees were scheduled to be off that day.
. "Q: Did you see him or talk with him later after his discharge in the month of January?
A: Yes. He spoke "with the office on January 4th, and then again on January 19th he spoke with my nurse, Patty.
Q: And do you know what the purpose of those phone calls was?
A: It was he was told to call the office and give me a checkup on how everything was doing. And the last note of January 19th is Patty spoke with his wife, and Scott was back at work doing fairly well.”
Deposition of Gary E. Myerson, M.D., Joint Exhibit 20, pg. 10. (September 11, 1996).
. Plaintiff’s separation paper also states "Review of past record shows excessive use of sick time." As discussed below, the court does not find this language determinative.
. Plaintiff asserts that a letter from Ms. Tipton to Lesley Wright of the Wright Rehabilitation Service which states that plaintiff was fired pursuant to its "excessive sick time” policy is proof that plaintiff was fired because of excessive FMLA leave. The court does not find this proof credible, as discussed below, especially since it is unclear that Ms. Tipton was under any duty to divulge to Ms. Wright why plaintiff was terminated.
. "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”
. Section
. The
McDonnell Douglas
test, as formulated in the context of a Title VII hiring claim, requires the plaintiff to show: (1) that he is a member of a protected class; (2) that he applied for and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications he was rejected; and (4) that after his rejection the position remained open and the employer continued to seek applicants of similar qualifications.
. A plaintiff may establish part of a prima facie case of FMLA discrimination in cases relying on statistical evidence by showing that workers who invoke rights under the FMLA are systematically terminated.
.Plaintiff’s direct evidence of discrimination is unpersuasive because it is not the blatant "smoking gun” required by the Eleventh Circuit.
See Earley,