Opinion
CAUSE NO. IP 02-0393-C H/K
March 11, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Robert D. Merritt drove a truck delivering beer and wine for defendant E.F. Transit, Inc. ("EFT"). He had a substantial record of absenteeism and had received at least one final warning. In the spring of 2000, Merritt suffered from a spur in the rotator cuff of his right shoulder. On April 21, 2000, after the last of the warnings, Merritt called EFT and said that he could not report to work because of the pain in his shoulder and the side effects of the medication he had been taking to treat his pain. EFT terminated him that day. After he was fired, Merritt had surgery on his shoulder in July 2000 to repair the rotator cuff.
In this lawsuit, Merritt alleges that his absence on April 21st was protected medical leave under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and that EFT violated the Act by firing him for that absence. EFT has moved for summary judgment on Merritt's claims. As explained below, the court grants the defendant's motion. Merritt has not produced evidence that would allow a reasonable jury to find that he suffered from a "serious health condition" within the meaning of the FMLA. Because Merritt's April 21st absence was not protected by the FMLA, his retaliation claim adds nothing to his case, so summary judgment is also granted on the retaliation theory.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, affidavits, and other materials demonstrate that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Only genuine disputes over "material facts" can prevent a grant of summary judgment, and "material facts" are defined as those that might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists only if there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
As required when deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to Merritt, the non-moving party. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). However, the existence of some metaphysical doubt does not create a genuine issue of fact. "A party must present more than mere speculation or conjecture to defeat a summary judgment motion." Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). The court should neither "look the other way" to ignore genuine issues of material fact, nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1363-64 (7th Cir. 1988).
Undisputed Facts
With these standards in mind, the following facts are either undisputed or reflect the evidence in the light most favorable to the plaintiff, the non-moving party. See, e.g., Schwartzv. State FarmMut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). All reasonable inferences have been drawn in his favor; however, adverse facts established by EFT beyond reasonable dispute are necessarily included in the narrative.
Plaintiff Merritt worked as a delivery driver for defendant EFT, a transportation company that distributes beer and wine. Merritt began working for EFT in December 1988. Merritt Dep. 66. Merritt's job required him to lift cases of beer, as many as 1,000 cases of beer per route, Lupear Dep. 13, and occasionally to lift kegs of beer that weighed about 160 pounds apiece, Rodriguez Dep. 19.
Merritt's immediate supervisors were Danny Kindle, Chris Waggoner, and John Lupear. Terry Wynne was the Transportation Manager. Wynne Dep. 19-20. Wynne was a "hands-on" manager and had interaction with his employees on a regular basis. Id. at 20.
Like many employers, EFT has a classification system for employees' days off. Employees have an allotted number of sick/personal and vacation days available for use throughout the year. Merritt Dep. 29; Ex. V. EFT has a medical leave policy that refers to the FMLA. EFT's medical leave policy provides:
For purposes of this policy, serious health conditions or disabilities include inpatient care in a hospital, hospice, or residential medical care facility; continuing treatment by a health care provider; and temporary disabilities associated with . . . related medical conditions.
All policies are in compliance with the Family and Medical Leave Act of 1993.
. . .
Eligible employees should make requests for medical leave to their supervisors at least 30 days in advance of foreseeable events and as soon as possible for unforeseeable events.
A health care provider's statement must be submitted verifying the need for medical leave and its beginning and expected ending dates.
. . .
Eligible employees are normally granted leave for the period of the disability, up to a maximum of twelve weeks of leave within any 12-month period.
Wynne Dep., Ex. 28.
On June 25, 1999, Merritt and Kindle, one of Merritt's immediate supervisors, met regarding Merritt's absences from EFT. Kindle created a record of the meeting, or "formal performance counseling session." Merritt Dep. 90; Ex. M. That record indicated that Merritt was being cited for missing too many days and for failing to heed EFT's warnings about his absenteeism. The record made note of Merritt's resulting one-day suspension on the following Monday, June 28th. The record also stated that if Merritt missed any more days in the next ninety days, he would be placed on a three-day suspension or receive further discipline as deemed necessary. Id., Ex. M. EFT routinely encouraged employees to comment or object on the reverse side of the counseling session record form. Merritt did not comment or object to this one. Id. at 92-93.
On July 2, 1999, the Friday after his one-day suspension and commencement of his ninety-day probationary period, Merritt again received a "formal performance counseling record" from Kindle for continued absenteeism. Merritt was cited for missing work without calling EFT. Although the previous counseling record had clearly indicated an intention by EFT to place Merritt on a three-day suspension and to institute a 120-day probationary period for any subsequent attendance violations, this July 2nd record gave Merritt a pass. He did not receive the three-day suspension, but was placed on probation for 120 days. Merritt was warned that if he missed one day in that 120 days without an excuse, he would be terminated. Merritt Dep., Ex. N. Again, Merritt did not comment or object on the reverse side of the record. Id. at 93.
In his December 1999 performance evaluation, Merritt was described as essentially a good worker with problems in attendance and punctuality. Performance Factors, Def. Ex. 4.
In December 1999, Merritt's right shoulder began to hurt him. Merritt Dep. 9. At that time, he told Wynne that "something was wrong," referring to the pain in his shoulder. Id. at 14. Wynne told Merritt to "be a team player; we need you today." Id. at 15. Merritt did not miss any days in December 1999 or January 2000. Id. at 25-26.
Kindle first learned about Merritt's shoulder problems in late January or early February 2000. Kindle Dep. 45. At that time, Kindle advised Merritt to go to the company clinic to see a doctor about his shoulder. Merritt instead elected to wait to see his own family doctor. Id.
On February 29, 2000, Merritt was absent from work and called in to request that day as a personal day. Merritt Dep. 30-31; Ex. C. On March 2, 2000, Merritt was again absent from work and called in to request a sick day. Id. at 32-34; Ex. D. Merritt does not recall the reasons for those absences. Id. at 31-33.
Merritt first sought treatment for his shoulder pain on March 13, 2000 when he saw his family doctor, Dr. Gary Thompson. Merritt Dep. 36. Merritt did not take any time off work for that appointment. Dr. Thompson prescribed Naproxen for Merritt to take for the pain. Id., Ex. J. Dr. Thompson was aware that Merritt was working delivering beer. Id. At no time did Dr. Thompson order Merritt to take time off from work, and Merritt declined to be placed on work restrictions. Id.
On March 16, 2000, Merritt called in sick again. Merritt Dep. 36-37; Ex. E. He does not recall the reason for that absence. Id. at 37.
On March 22, 2000, Merritt was absent from work although he had no personal time available, and someone else called in for him, another violation of EFT's attendance policy. Merritt Dep. 100; Ex. R. His stated reason for that absence was to attend a funeral, yet he admitted did not actually attend the funeral. Id. at 41-42. On March 23, 2000, Merritt received another "formal performance counseling record" for his March 22nd absence. According to the counseling record, Terry Wynne was the supervisor who "coached" the corresponding "formal performance counseling session." Id., Ex. R. The counseling record purported to serve as Merritt's final warning. It noted Merritt's violation of company policy by having another individual call in to report his absence the day before. It noted that in addition to that violation, Merritt was carrying a zero balance of leave time available when he was absent on March 22nd, also in violation of company policy. The report indicated that if Merritt was absent again without available leave time, or if Merritt did not follow the proper call-in procedures, he would be terminated. Id.
On April 18, 2000, Merritt was absent from work, although he had no personal time available. He was not terminated that day. He saw Dr. Thompson that day about his shoulder pain, which had not been eased by the Naproxen. Dr. Thompson prescribed Ultram, Merritt Dep. 52, and instructed Merritt to begin physical therapy on April 24, 2000, id. at 45.
Merritt began taking Ultram on April 18th. The Ultram caused Merritt to feel drowsy. Merritt Dep. 55. Despite this effect, he kept taking Ultram and reported to work on April 19th and 20th. Id. On April 19th, he informed EFT that he was taking Ultram and on April 20th, he told Kindle that he was "uncomfortable" driving because of the drowsy effects Ultram induced in him. He asked to have someone drive his route for him that day. Id. at 56. Rather than providing Merritt with a substitute driver, Wynne followed Merritt in his own car along the delivery route for the majority of the day and assisted Merritt in unloading product for customers. Id. at 63. Merritt also told Wynne that he was "uncomfortable" driving that day because of the Ultram. Id.
On April 21, 2000, Merritt called Kindle and said he would not be in because of his shoulder pain and the effects of the Ultram. Kindle Dep. 56-57; Merritt Dep. 68. Merritt did not take the Ultram that day, nor did he visit his doctor or receive any other medical treatment that day. Merritt Dep. 71. Kindle informed Merritt that if he did not come in, he would be fired. Id. at 69-70. Forty minutes later, Merritt called Kindle back and informed Kindle that he was not able to make it in that day. Kindle Dep. 58. Merritt was terminated, according to EFT, for continuously flouting the company's attendance policy.
On July 11, 2000, Merritt underwent surgery to have the rotator cuff on his right shoulder repaired. Merritt was awarded worker's compensation benefits in the form of temporary total disability benefits, medical benefits to cover the surgery on his shoulder, and reimbursements to cover the co-payments for some of his medical visits prior to his termination. Merritt Aff. ¶¶ 6, 10.
Discussion
The FMLA gives eligible employees the right to take up to twelve work weeks of unpaid leave during any twelve month period for specified reasons, including when a "serious health condition" makes the employee unable to perform the functions of the employee's position. 29 U.S.C. § 2612(a)(1)(D). The FMLA prohibits employers from interfering with, restraining, or denying the exercise of or the attempt to exercise rights protected by the Act. 29 U.S.C. § 2615(a)(1). The FMLA also prohibits employers from discriminating or retaliating against employees who exercise their rights under the Act. 29 U.S.C. § 2615(a)(2).
An employee bears the burden of proving that he was entitled to FMLA leave and that the employer violated the statute by denying him such leave. Bell v. Jewel Food Store, 83 F. Supp.2d 951, 957 (N.D. Ill. 2000), citing Diaz v. Fort WayneFoundry Corp., 131 F.3d 711, 713 (7th Cir. 1997). The parties agree that Merritt was a full-time EFT employee who was eligible for protection under the FMLA and that EFT is an employer covered by the FMLA. See 29 U.S.C. § 2611 (2) 85(4). Merritt claims that EFT violated 29 U.S.C. § 2615 by firing him for the April 21, 2000 absence, which he claims qualified as authorized medical leave under 29 U.S.C. § 2612(a)(1)(D).
I. "Serious Health Condition"
The FMLA authorizes leave, among other reasons: "Because 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). "Serious health condition" is a term of art defined by the statute and Department of Labor regulations. This provision of the FMLA was aimed at genuinely serious and incapacitating conditions. It was not intended to mandate, as a matter of federal law, a uniform national sick leave policy for minor or temporary illnesses and discomforts. S. Rep. No. 103-3, at 28 (1993); reprinted in 1993 U.S. Code Cong. Ad. News 3, 30. It is not sufficient for an employee merely to assert that he suffered from a serious health condition; he must provide evidence of his serious health condition. Haefling v. United Parcel Service, Inc., 169 F.3d 494, 500 (7th Cir. 1999).
The FMLA defines "serious health condition" as follows:
The term "serious health condition" means 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). Merritt did not receive inpatient care in a hospital or other residential medical care facility for his shoulder injury at any relevant time. He visited Dr. Thompson twice in the relevant time period before his termination. Merritt's condition therefore did not satisfy the criteria of 29 U.S.C. § 2611(11)(A). Whether Merritt's absence on April 21st was because of a serious health condition that made him unable to do his job therefore depends on whether he was receiving "continuing treatment by a health care provider" within the meaning of 29 U.S.C. § 2611(11)(B). That term is defined in detail in the regulation set forth below in the margin.
The applicable Department of Labor regulation defines "continuing treatment by a health care provider" as:
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity ( i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services ( e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment 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.
(ii) Any period of incapacity due to pregnancy, or for prenatal care.
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity ( e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease.
(v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).29 C.F.R. § 825.114(a)(2).
Merritt contends that his condition satisfied the definition of continuing treatment by a health care provider set forth in 29 C.F.R. § 825.114(a)(2)(v):
(v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).
The regulation clearly provides that FMLA leave taken by employees pursuant to 29 C.F.R. § 825.114(a)(2)(v) must be for the employee "to receive multiple treatments" for the condition in question.
Before the current version of the Department of Labor regulations was enacted, the Department submitted proposed rules for comment by the public. See 60 Fed. Reg. 2180 (Jan. 6, 1995) (adopting final rules). The proposed regulations had been revised, among other changes, to encompass a wider variety of potentially eligible employees and to attempt to limit any abusive exploitation of the Act by employees. When the Department of Labor issued the final regulation, it explained this provision:
The Department has also included a definition to deal with serious health conditions which are not ordinarily incapacitating (at least at the current state of the patient's condition), but for which treatments are being given because the condition would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment. The regulation requires multiple treatments, and includes as examples patients receiving chemotherapy or radiation for cancer, dialysis for kidney disease, or physical therapy for severe arthritis. Multiple treatments for restorative surgery after an accident or other injury is also specifically included. The previous requirement that the condition be chronic or long-term has been deleted because cancer treatments, for example, might not meet that test if immediate intervention occurs.
60 Fed. Reg. 2195.
EFT is entitled to summary judgment on this theory because the undisputed facts show that Merritt simply did not receive any treatments at all on the day that he attempted to use as FMLA leave, April 21st. Merritt did not take the day off on April 21st to receive any type of treatment. He did not see his doctor or physical therapist. He did not even take his pain medication that day. He has not come forward with any evidence that any health care provider told him he could not work that day. As a result, Merritt has not come forward with evidence that would allow a reasonable jury to find that he fit the definition in § 825.114(a)(2)(v) so that his absence on April 21st would qualify as leave because of a "serious health condition" under the FMLA that made him unable to perform the functions of his job. See Bauer v. Dayton-Walfher Corp., 910 F. Supp. 306, 310 (E.D. Ky. 1996) (under § 825.114(a)(2)(v), an employee who never received multiple treatments cannot qualify for FMLA leave), aff'd sub nom. Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111-12 (6th Cir. 1997) (also noting that final regulation would not apply retroactively).
Merritt argues that the evidence of his physical therapy and eventual surgery after he was fired shows that he had a serious health condition within the meaning of the FMLA. See Bauer, 118 F.3d at 1112 (evidence of health condition after firing was admissible to find that employee did not have serious health condition, which involved objective inquiry). In this case, however, the undisputed facts show that Merritt's shoulder condition did not fit the statutory or regulatory definitions for a serious health condition while he was still employed and at the time he was fired, so his absence on April 21st was not "because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." See 29 U.S.C. § 2612(a)(1)(D). He did not have inpatient care, and he was not receiving "continuing treatment by a health care provider" as that term was defined in any of the subsections of 29 C.F.R. § 825.114(a)(2). No doctor had told him to stay off the job at the time he was fired. See Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir. 2000) (affirming judgment as a matter of law for employer on FMLA claim; employee did not show that any doctor had told him that shoulder injury prevented him from doing his job, and employee was not receiving continuing treatment at time of discharge, though employee had treatment six to eight months after termination); see also Frazier v. IBP, Inc., 1999 WL 33655745, at *4 (N.D. Iowa Feb. 2, 1999) (district court decision affirmed by Eighth Circuit). As the Seventh Circuit stated in Haefling,
although Haefling testified in his deposition that he visited a doctor . . . and attended physical therapy sessions, there is no evidence in the record establishing that Haefling's condition required any medical treatment whatsoever. . . . Haefling did not submit an affidavit from his own doctor or any other medical personnel demonstrating the necessity of the "treatments" he supposedly received, and Haefling's own self-serving assertions regarding the severity of his medical condition and the treatment it required are insufficient to raise an issue of fact on this point.169 F.3d at 500 (affirming summary judgment for employer); see also Levine v. Children's Museum of Indianapolis, 2002 WL 1800254, at *6 (S.D. Ind. July 1, 2002) (granting summary judgment for employer on FMLA case where employee offered only his own and his wife's statements that he was incapacitated, and offered no evidence from health provider showing need to take time off from work), aff'd mem., 61 Fed. Appx. 298 (7th Cir. 2003).
In Haefling, the Seventh Circuit referred to a portion of the Department of Labor regulations that has since been amended. See 169 F.3d at 500 ("The interim final rules specifically exclude voluntary treatments `which are not medically necessary' from the definition of `serious health condition.'"), citing 29 C.F.R. § 825.114(c). However, the requirement that the employee offer something beyond his own opinion as to the necessity of his absence remains valid. The Department of Labor explained the change when it issued the final regulations:
The regulation has also been revised in paragraph (c) to delete the reference to "voluntary" treatments for which treatment is not medically necessary. . . . The term "voluntary" was considered inappropriate because all treatments and surgery are voluntary. Furthermore, the Department did not wish to encourage employers to second-guess a health care provider's judgment that a treatment is advisable ( e.g., orthoscopic knee surgery on an out-patient basis) by questioning whether it is "necessary".
60 Fed. Reg. 2195.
The undisputed evidence shows that Dr. Thompson was aware that Merritt worked distributing beer. He saw Merritt just three days before April 21st, and he did not order time off work. Merritt's final absence on April 21st simply was not an absence "to receive multiple treatments" by a health care provider. Accordingly, Merritt has not provided sufficient evidence that he was absent from work because of a serious health condition within the meaning of the FMLA.
To rebut this reasoning, Merritt claims that the worker's compensation and temporary total disability payments that he later received from EFT are evidence that would allow a jury to find that his shoulder injury was a serious health condition. The court disagrees. Merritt's burden under the FMLA is to show that his shoulder injury was a serious health condition at the time of his termination, so that an absence caused by that condition would qualify for FMLA leave. See 29 U.S.C. § 2612(a)(1)(D) (authorizing leave "Because of a serious health condition that makes the employee unable to perform the functions" of the job). For the reasons explained above, the evidence of later treatments and Zaterincapacitation would not allow that conclusion because Merritt has not shown he was absent on April 21st because of a serious health condition that made him unable to do his job.
It is now known that Merritt's shoulder injury required physical therapy and ultimately restorative surgery. The FMLA might have protected Merritt for an absence to receive physical therapy. The FMLA does not, however, protect his unilateral decision to stay home on April 21st. Even construing the facts in the light most favorable to him, a reasonable jury could not find that Merritt was absent because of a serious health condition within the meaning of the FMLA, as defined in 29 C.F.R. § 825.114(a)(2)(v).
Using the later treatment of an employee's claim for worker's compensation as an admission or to collaterally estop the employer from challenging the "serious health condition" element of an FMLA case would be contrary to Indiana law and policy. Allowing such use would threaten to complicate and to burden unduly the administrative proceedings to determine worker's compensation benefits, for it would give employers a much greater incentive to contest issues in those proceedings. See McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 395 (Ind. 1988) (declining to give collateral estoppel effect in litigation to earlier finding in an informal administrative proceeding that employee had not been fired "for cause" and was entitled to unemployment benefits; "[administrative proceeding] is a procedure designed for quick and inexpensive determinations of unemployment benefits. Recognizing it as a basis for collateral estoppel might well force the parties to convert such proceedings into longer and more expensive ones."); see also Cox v. Indiana Subcontractors Ass'n, 441 N.E.2d 222, 226 (Ind.App. 1982) ("The [administrative agency] is not the proper authority to determine complex legal issues. . . . It is designed to administer unemployment benefits."). Similar considerations apply to worker's compensation benefits.
II. Retaliation
The FMLA prohibits retaliation against employees who take advantage of their rights under the law: "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 title." 29 U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(c). The only leave in question in this case is Merritt's absence from work on April 21st, and the only alleged retaliation is the failure to give him FMLA leave on that occasion. None of the other provisions in § 2615 apply to this situation. Under these circumstances, the "retaliation" label does not add to the alleged substantive violation. "Using the language of `retaliation' to analyze such a contention detracts attention from what matters." Gillicun v. United Parcel Service, Inc., 233 F.3d 969, 971 (7th Cir. 2000), citing Diaz v. Fort WayneFoundry Corp., 131 F.3d 711, 712-13 (7th Cir. 1997). The undisputed facts show that Merritt did not engage in any protected activity. His absence did not qualify as FMLA protected leave, and the FMLA does not authorize leave any time an employee believes in good faith that he might be entitled to such leave.
The relevant provision of the FMLA reads in full:
(a) Interference with rights.
(1) Exercise of rights. 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 title. (2) Discrimination. 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 title.
(b) Interference with proceedings or inquiries. It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual —
(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this title;
(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this title; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this title.29 U.S.C. § 2615.
Conclusion
The undisputed facts before the court show that plaintiff Merritt's absences did not qualify for protection under the FMLA. He was not absent because of a "serious medical condition" under the FMLA at the time of his termination. EFT did not violate the FMLA when it fired Merritt for failing to report for work on April 21, 2000. The court has not reached defendant's argument concerning inadequate notice. The defendant's summary judgment motion is granted. Final judgment will be entered for the defendant.
So ordered.