UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40493 Summary Calendar

STEPHEN FISHER,

Plaintiff-Appellant,

versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas (4:96-CV-340) _________________________________________________________________

March 5, 1999

Before HIGGINBOTHAM, JONES, and WEINER, Circuit Judges.

PER CURIAM:*

Appellant Stehpen Fisher sued his former employer, State

Farm Mutual Automobile Insurance Company (“State Farm”), alleging

a cause of action under the Family Medical Leave Act (“FMLA”),

et seq., and a cause of action for intentional infliction of emotional distress. The district court granted

summary judgment for State Farm and Fisher appealed. We affirm.

BACKGROUND

While employed by State Farm as an Automotive Estimator

in June and July of 1994, appellant took 15 days of paid leave from

work to care for his ill father and assist him in running his

trucking business. In August 1994, appellant took another five

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. days of paid leave for the same reason. After his father passed

away in September 1994, appellant took another 16 days of leave

(12 of which were paid absences) in connection with the funeral and

related affairs. On September 22, 1994, appellant requested in

writing that his supervisor give him a 60 day leave of absence

because he needed time to 1) function as the executor of his

father’s estate; 2) help his mother through the difficulty

associated with the death; and 3) deal with his own mental

suffering and marital strife. Because a medical certification form

was required to substantiate his claim that he needed a medical

leave, and he had not yet seen a doctor, his supervisor instructed

him to have his doctor examine him and submit a Family Leave

Certification Form.

Appellant met with Dr. Steven Overn who diagnosed him as

having an “adjustment disorder.” According to Overn, appellant was

experiencing excessive stress and needed time away from work to

clear up his father’s estate. After receiving the certification

form from Overn, Dr. Margaret Sowanda, State Farm’s Medical

Director, noticed that the form was incomplete because it did not

include any information regarding appellant’s course of treatment

and did not state that appellant was unable to function in his job.

Sowanda then phoned Overn to clarify his diagnosis. Overn

explained that he had prescribed Zoloft and scheduled appellant for

re-evaluation in two weeks, because Zoloft takes two weeks to begin

working. Sowanda then suggested that appellant’s leave should be

for two weeks instead of the 60 days initially requested, and Overn

2 agreed.

State Farm sent appellant a letter informing him that he

had been approved for a two-week leave and was to thereafter return

to work. According to appellant’s deposition, he used the time to

settle his father’s estate, run his father’s business, and care for

his mother. At the end of the two-week period, appellant did not

return to work and was accordingly classified as Absent Without

Leave (“AWOL”). Three days later, State Farm terminated his

employment due to his AWOL status.

STANDARD OF REVIEW

In reviewing the district court’s grant of summary

judgment, the standard of review at the appellate level is de novo.

Summary judgment is proper if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with any

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v.

Citrate,

(1986). Under this standard, all

fact questions must be viewed in the light most favorable to the

non-moving party, and questions of law are reviewed de novo.

Hassan v. Lubbock Indep. Sch. Dist.,

(5th Cir.).

Once the moving party meets its burden, the burden shifts to the

non moving party to produce evidence sufficient to show the

existence of a material fact. See

3 DISCUSSION

A. Family Medical Leave Act

The district court granted summary judgment for State

Farm because appellant failed to show that he was incapacitated as

required by FMLA. Appellant argues that incapacity is not a

necessary requirement for protection under FMLA, and even if it is,

the appellee, by providing “an unconditional grant of FMLA leave,”

waived the incapacity issue.

Under the FMLA, an employee is entitled to a leave if the

employee has “a serious health condition that makes the employee

unable to perform the functions of the position of such employee.”

(a)(1)(D). A “serious health condition” is

defined as an “illness, injury, impairment, or physical or mental

condition that involves . . . continuing treatment by a health care

provider” including “[a] period of incapacity . . . .”

(a)(2) (1997). This Court has interpreted these

regulations as requiring FMLA plaintiffs to show that they

experienced a period of incapacity. “[U]nder the regulation, where

an employee alleges that he has a serious health condition

involving continuing treatment by a health care provider, he must

first demonstrate a period of incapacity (i.e. the inability to

work) . . . .” Murray v. Red Kap Indus., Inc.,

(5th Cir. 1997); see also Price v. Marathon Cheese Corp.,

(finding that the plaintiff was not entitled to FMLA

protection because “she failed to prove incapacity”).

The district court granted summary judgment for State

4 Farm because appellant failed to raise a fact issue regarding his

incapacity. The appellant’s doctor testified that despite

appellant’s “adjustment disorder,” he “still could perform

activities of daily living . . . .” In addition, the doctor

conceded that appellant’s stress which was caused by probating his

father’s estate could have been alleviated by finding a replacement

executor. Finally, while appellant was on his two-week leave of

absence, he actively discharged his duties as the executor of his

father’s estate, continued to run the trucking business, and cared

for his mother. Based on these facts, the district court properly

granted summary judgment for the appellee because Fisher did not

show that he was incapacitated; he failed to meet the requirements

for having a “serious health condition.”

The appellant relies on Sims v. Almeda-Contra Costa

Transit Dist.,

(N.D. Cal. 1998), to argue that

State Farm, by initially providing “an unconditional grant of FMLA

leave,”1 somehow waived its right to argue now that appellant does

not qualify under FMLA. We disagree. The issue in Sims was

whether an employer, who denied an employee’s request for leave

without obtaining follow-up medical opinions as required by the

FMLA, may later challenge the accuracy of the medical

certification. See

. The district court held that the

employer may not contest the validity of the initial medial

certification if it did not seek the required subsequent medical

1 State Farm granted a two week leave to appellant, not “an unconditional grant of FMLA leave” as appellant contends.

5 opinion. See

. Sims is inapplicable, however, because

State Farm is not contesting the validity of the medical

certification. Instead, State Farm relies on Overn’s medical

certification and later testimony to support its argument that

appellant was capable of performing normal job functions and was

not incapacitated. Fisher has not cited, and we are unable to

find, any case or statute that prevents an employer from defending

itself in a FMLA suit on the basis that its employee, who was

granted a limited leave of absence, does not qualify for a FMLA

leave.

B. Intentional Infliction of Emotional Distress

Appellant next argues that State Farm intentionally

inflicted emotional distress on him. In order to support a claim

for intentional infliction of emotional distress under Texas law,

appellant must prove that State Farm’s conduct 1) was intentional

or reckless; 2) was extreme and outrageous; 3) caused the plaintiff

emotional distress; and 4) finally, the resulting emotional

distress was severe. See Twyman v. Twyman,

(Tex. 1993).

Appellant first argues that he suffered severe emotional

distress because a State Farm supervisor placed a memorandum

containing false information in his personnel file the day after he

was fired. The district court did not consider the memorandum

because appellant did not attach it to his brief in opposition to

summary judgment. Even if the appellant had properly produced the

memorandum and the district court had considered it, the memorandum

6 does not exhibit the kind of extreme or outrageous behavior

necessary to establish a claim. Moreover, there is no evidence

that the memorandum caused appellant to suffer emotional distress,

especially since he did not become aware of the memorandum until

two years after his termination. Appellant also argues that State

Farm intentionally inflicted emotional distress by interfering with

his ability to exercise FMLA rights. As previously noted, however,

the appellant does not have any rights under the FMLA because he

proved neither that he suffered a “severe health condition” nor

incapacity. Thus, his claim for intentional infliction of

emotional distress fails.

CONCLUSION

Because we find no reversible error and because the appellant

failed to show a genuine issue of material fact as to both the FMLA

issue and the intentional infliction of emotional distress issue,

we AFFIRM the district court’s grant of summary judgment.

AFFIRMED.

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