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Colvin v. Performance Contractors Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

January 25, 2019





         Before 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 PREJUDICE.



         Christopher 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.[1] [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.[2] [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.[3] [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.[4] [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].

         II. Applicable Law

         A. Summary Judgment Standard

         "A 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 warranting trial.

Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir.1994) (internal citations omitted).

         When 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 (1986)).

         B. The Family and Medical Leave Act

         The 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."[5] 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 ...

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