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Click here for the full text of this decision FACTS:Kenneth Mauder began working at a call center for Metropolitan Transit Authority of Harris County in June 1999. His job was to answer calls and provide technical support via telephone. In February 2002, Mauder got a new supervisor, Watkins, who wanted to improve the accountability of the office. Noticing that Mauder was frequently away from his desk, Watkins e-mailed Mauder to tell him that he needed to be more visible. She also implemented a system-wide schedule of breaks and attendance policies. In March 2002, Mauder missed two weeks of work for treatment of a medical condition. At this time, he was also diagnosed with Type II diabetes. The return-to-work notice the doctor gave him did not mention any medical restrictions. In mid-April, the doctor prescribed the drug Metaformin to help treat Mauder’s diabetes. One of the side effects of the drug was temporary uncontrollable bowel movements and diarrhea. Mauder took the drug without incident until May or June, when he then reported to his doctor that he was suffering from diarrhea, which caused him to be in the restroom for 15 minutes at a time. Unaware of Mauder’s medical condition, Watkins e-mailed Mauder again about being away from his desk at times other than his scheduled break times, reminding him to log in and out of his work station when he came and went. Mauder made a sarcastic reply back. Watkins later sent another e-mail expressing concerns over Mauder’s lateness in returning from his scheduled breaks, to which Mauder responded by giving Watkins a doctor’s handwritten note saying that diarrhea was a side effect of his diabetes medication. The note said that Mauder’s condition should improve with time. Mauder says he asked for a flexible break schedule to deal with the side effects but that Watkins refused. Mauder e-mailed Watkins on June 6 referring to the doctor’s note and asking that three tardy notations be removed from his record. When he met with Watkins the next day, Mauder refused to give her any additional information about his medical condition. Watkins denied Mauder’s request to remove the tardies. Mauder was repeatedly warned about his tardiness after that. His performance review June 19 mentioned his frequent tardies, though it also stated that he ���satisfie[d] most of the job requirements. Two weeks after the review, Watkins issued a verbal warning to Mauder for repeated tardies and unavailability. In August, she issued a written reprimand based on the same behavior. In August, Mauder’s doctor sent a note to Watkins explaining that the side effects of the Metaformin were usually temporary and that he would try to find a way to manage those side effects. At this time, Watkins again denied Mauder’s request for a flexible break schedule. On Sept. 12, Watkins placed Mauder on a one-month probation-like plan. The written plan included specific goals Mauder needed to meet, and stated that if he had not adhered to the plan by Oct. 11, he would be fired. On Sept. 25, Watkins wrote a memo noting that Mauder had not improved in any of the areas identified in the probation plan. She wrote a similar memo on Oct. 1 and Oct. 8. On Oct. 4, Mauder asked the human resources department for leave under the Family Medical Leave Act. Mauder was given a packet and told to return it by Oct. 19; however, Watkins fired Mauder Oct. 11. Mauder sued Metro, saying he was fired because he asked for FMLA leave. The district court granted summary judgment to Metro. On appeal, Mauder argues that the district court erred in ruling that he did not produce sufficient evidence of a serious health condition under FMLA, and that he did not produce sufficient evidence of retaliation by Metro. HOLDING:Affirmed. The court explains that the first issue to be addressed is the ���entitlement provision of FMLA, which grants an employee a right to return to the same position after a qualified absence. The second issue is the ���proscriptive provision, which bars employers from retaliating against employees who exercise their FMLA rights. The court notes that, unlike most FMLA claims, Mauder is not asking for an excused absence under FMLA. Instead, he is asking for ���unfettered permission, while at work, to take restroom breaks. Though it finds no cases directly on point, the court says that a careful review of the entire record still allows for resolution of the case. The court acknowledges that there is some disagreement over whether the underlying cause of Mauder’s need for unrestricted bathroom breaks is his diabetes or his reaction to the diabetes medication. Even assuming, though, that either one could satisfy the ���serious medical condition part of the entitlement provision, the record reflects that Mauder has not shown that this condition has left him incapacitated, as is required by statute. Other cases granting FMLA leave to employees with diarrhea have involved situations where the employees are so debilitated that they cannot even go to work. The court also notes that FMLA recognizes diabetes as an example of a chronic serious heath condition that may cause episodic rather than a continuing period of incapacity necessitating FMLA leave. Mauder, however, did not experience either episodic or continuing incapacity. Aside from not being able to show that he was incapacitated or prevented from going to work, the court also finds that Mauder did not meet any of the three conditions under the regulations that define a serious heath condition as involving continuing treatment by a healthcare provider. Mauder was not absent from work for more than three consecutive days, as the regulations required. He was not incapacitated due to pregnancy or prenatal care, and he was not incapacitated and did not receive treatment for such incapacity due to a chronic serious health condition. The court adds that the record is clear that Metro should also not be held accountable for not providing Mauder with FMLA leave, because Mauder did not provide information requested by Metro that was needed to process Mauder’s demands for flexible bathroom breaks. FMLA requires cooperation between employee and employer. The court next turns to the proscriptive provision, assuming for argument’s sake that Mauder met the requirements under the entitlement provision. Mauder did not prove that he was retaliated against, either. His deposition shows that he was aware that, if his performance did not improve by the deadline given in the probationary period, he could be terminated. Furthermore, prior to being placed on corrective action, Mauder received a handful of reprimands from Metro regarding his attitude and availability. When his performance and attitude did not improve, he was terminated Oct. 11. His termination should not and did not take him by surprise. OPINION:Stewart, J.; Higginbotham, Davis and Stewart, JJ.

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