United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY, MAGISTRATE JUDGE
R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE
the Court in this suit alleging unlawful retaliation in
violation of the Family and Medical Leave Act
("FMLA") is a motion for summary judgment filed by
Defendant Performance Contractors, Inc.
("Performance"). [Doc. No. 17]. Pursuant to its
motion, Performance seeks dismissal of this suit with
prejudice. Plaintiff Christopher Colvin ("Colvin")
opposes the motion, and Performance has filed a reply
thereto. [Doc. Nos. 29, 36], For the reasons that follow, the
motion is GRANTED, and Plaintiffs suit is DISMISSED WITH
Colvin was employed by Performance as a crane operator at its
Sasol facility in Lake Charles, Louisiana. At 5:23 a.m., on
January 23, 2017, Colvin called into work and left a
voicemail stating he "was not going to be able to make
it into work that day." [Doc. No. 17-1 at ¶ 2; Doc.
No. 29-3 at ¶ 2]. Colvin gave no reason for his
absence. [Doc. No. 17-3 at 25], Colvin and his wife
then took Colvin's step-daughter to South Arkansas
Regional Health Center ("SARHC") in El Dorado,
Arkansas (a facility where his step-daughter had previously
been treated for psychiatric issues) so that his
step-daughter could speak to her counselor. [Doc. 29-3 at
¶ 3], According to Colvin, he and his family were
initially told the counselor would be in the office shortly.
[Doc. No. 29-6 at | 28]. After several hours of waiting, they
were advised the counselor would not make it into the
facility that day. Id. at f 29. After scheduling an
appointment for Colvin's stepdaughter on January 27,
Colvin, his wife and stepdaughter returned
home. [Doc. No. 17-3 at 49-50; Doc. No, 17-18].
That same day, Colvin's supervisors, Scott Fairchild and
Carl Marino, made the decision to terminate Colvin's
employment due to Colvin's absenteeism. [Doc. Nos. 17-4,
17-5], The following day Colvin reported to work, arrived at
a weekly safety meeting, and handed his supervisor, Carl
Marino, a document on SARHC letterhead, which was signed by a
person identified as the SARHC receptionist. [Doc. Nos. 17-3
at 28, 17-8]. The substance of the note stated,
"Christopher Colvin was seen on 1/23/17 date
and left our office at 10:45 time. If you have any
question please feel free to contact us at . . . ."
[Doc. No. 17-8]. After the meeting, Marino asked Colvin to go
with him to the office. Marino then advised Colvin he was
firing Colvin and handed Colvin his termination papers. [Doc.
No. 17-3 at 28-29]. The termination papers identify Colvin as
being fired for "Excessive Absences." [Doc, No.
17-6]. On May 25, 2017, Colvin filed this suit against
Performance, alleging unlawful retaliation in violation of
the FMLA. [Doc. No. 1].
Summary Judgment Standard
party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought." Fed.R.Civ.P. 56(a).
"The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Id. "A genuine issue of material
fact exists when the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Quality Infusion Care, Inc. v. Health Care Service
Corp., 628 F.3d 725, 728 (5th Cir. 2010). As summarized
by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of an issue of
material fact with respect to those issues on which the
movant bears the burden of proof at trial. However, where the
nonmovant bears the burden of proof at trial, the movant may
merely point to an absence of evidence, thus shifting to the
non-movant the burden of demonstrating by competent summary
judgment proof that there is an issue of material fact
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618
(5th Cir.1994) (internal citations omitted).
reviewing evidence in connection with a motion for summary
judgment, "the court must disregard all evidence
favorable to the moving party that the jury is not required
to believe, and should give credence to the evidence favoring
the nonmoving party as well as that evidence supporting the
moving party that is uncontradicted and unimpeached."
Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th
Cir.2001); see also Feist v. Louisiana, Dept. of Justice,
Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir.
2013) (court must view all facts and evidence in the light
most judgment analysis." Quorum Health Resources,
L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458
(5th Cir. 2002). Rule 56 "mandates the entry of summary
judgment. . . against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof." Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir. 2004) (alterations in original)
(quoting Celotex v. Catrett, 477 U.S. 317, 322
The Family and Medical Leave Act
Family and Medical Leave Act of 1993 assures unpaid leave for
family members who must care for relatives with a
"serious health condition." 29 U.S.C. §
2612(a)(1)(C); Lubke v. City of Arlington, 455 F.3d
489, 494 (5th Cir. 2006). Specifically, the Act requires a
covered employer to allow an eligible employee up to twelve
weeks of unpaid leave "[i]n order to care for the
spouse, or a son, daughter, or parent, of the employee, if
such spouse, son, daughter, or parent has a serious health
condition." 29 U.S.C. § 2612(a)(1)(C); see
also 29 U.S.C. § 2601(b)(2); Elsensohn v. St.
Tammany Par. Sheriff's Office,530 F.3d 368, 372
(5th Cir. 2008). The Act makes it unlawful for an employer to
discharge or retaliate against an employee for ...