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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON Case No. 99cv1262 ALLEN vs. THE BOEING COMPANY Memorandum In Support Of Defendant’s Motion For Summary Judgment I. INTRODUCTION AND SUMMARY Plaintiff Larry Dale Allen sues The Boeing Company (“Boeing”) on the sole basis of an alleged violation of the Family and Medical Leave Act, 29 U.S.C. �� 2601-54 (“FMLA”), when his employment was terminated on May 17, 1999. Boeing discharged Allen for unexcused absences from May 10 to 14, 1999, which unexcused absences caused Allen to arrive at the third and final step of Boeing’s progressive discipline for attendance rule violations. Allen contends that he was entitled to FMLA leave for the period May 10 to 14 and that his discharge was thus in violation of the FMLA. Boeing now moves for summary judgment because, under the undisputed facts, Allen was not entitled to FMLA leave during the period May 10 to 14. Allen alleges in his Complaint that he suffered from gout during the May 10 to 14 period, but this allegation cannot be a basis for FMLA leave for two separate and independent reasons. First, it is simply not the case that Allen actually had gout during the May 10 to 14 period at issue. Rather, it is plain from the factual record as it has developed that the true reason Allen took time off from work May 10 to 14 was for bereavement purposes (Allen’s father had recently passed away). The case law is uniform that EMLA leave is not available for bereavement. Allen’s bare allegation in his Complaint of gout, wholly unsupported by the record, is not sufficient to avoid summary judgment. Second — and regardless of whether he actually had gout or not — Allen undoubtedly failed to make an adequate request for FMLA leave. When Allen returned to work after the May 10 to 14 absences, he concededly said nothing about gout or any other medical reason for the absences. Not surprisingly, courts have consistently held that employers need not be clairvoyant and that employees must make some timely mention of an FMLA-qualifying reason for their absences in order to qualify for FMLA leave. Boeing respectfully requests that summary judgment be granted dismissing Allen’s Complaint with prejudice. II. CENTRAL FACTS [FOOTNOTE 1] A. ALLEN’S BOEING EMPLOYMENT Allen started work at Boeing in November 1988. Complaint for Wrongful Discharge in Violation of Family and Medical Leave Act (“Complaint”) � 6. Throughout his Boeing employment, Allen worked as a mechanic at the Everett plant. Deposition of Larry Dale Allen [FOOTNOTE 2](“Allen Dep.”) at 11. For the last nine years of his Boeing employment, Allen worked on a team of employees assembling the vertical stabilizer section of the Boeing 767 aircraft. Id. at 12. Allen was a member of the bargaining unit represented by the International Association of Machinists and Aerospace Workers, AFL-CIO (the “Union”). Complaint � 7. Boeing discharged Allen on May 17, 1999, for repeated violations of Boeing’s attendance rules. Complaint� 11; Allen Dep. at 61, Exs. 6,7. B. PROGRESSIVE DISCIPLINE OF ALLEN IN FALL 1998 FOR ATTENDANCE RULE VIOLATIONS Allen was disciplined, and ultimately terminated, pursuant to Boeing’s Puget Sound Attendance Guideline (“Attendance Guideline”). Under the Attendance Guideline, an employee who is absent or tardy without excuse (referred to as an “infraction”) twice within a 60-day period is subject to discipline. Allen Dep., Ex. 1 at 1. Absences covered by benefits such as vacation and sick leave are deemed not to be infractions. Id. Absences covered by FMLA leave are never counted as infractions under the Attendance Guideline. Id. An employee with two infractions within any 60-day period receives a written warning under the Attendance Guideline. Id. If, within the next year, an employee has two more infractions within a 60-day period, the employee receives a one-day suspension Id If within the next year after the suspension, the employee has yet another pair of infractions within a 60-day period, the result is termination. Id. On September 18, 1998, Allen received a written warning for attendance infractions, that is, unexcused absences or tardiness, occurring on September 14 and 16, 1998 Id Ex. 2. Then, on November 11, 1998, Allen received a one-day suspension for attendance infractions on October 9, November 5, November 9, and November 10, 1998. Id Ex 4. Allen has since offered a number of explanations for his unexcused absences and tardiness in September, October, and November 1998, including oversleeping, a traffic accident blocking access to the Everett plant, stopping to talk to one of his former supervisors on the way into the plant, and a misunderstanding on his part concerning available vacation time. Id. at 27, 45-47, Ex. 4. Allen has never contended that he was absent for FMLA-qualifying reasons during any of the September, October, and November 1998 infractions, and these infractions are not at issue in this lawsuit. Id; Complaint �� 10-12. As of his November 11, 1998 suspension, Allen had reached the second step of progressive discipline under the Attendance Guideline. Allen Dep., Ex. 4. Under the Attendance Guideline, two more unexcused absences or instances of tardiness in the next 12 months would bring Allen to the third step of progressive discipline and result in his termination. Id, Ex. 1. C. ALLEN’S MAY 1999 ABSENCES AND TERMINATION Allen was absent without excuse on May 10, 11, 12, 13, and 14, 1999. [FOOTNOTE 3]– an entire work week. As a result, he was discharged as the third step of discipline under the Attendance Guideline Id Ex. 6. Allen’s May 1999 absences began after his father passed away on Tuesday, May 4. Complaint � 9; Allen Dep. at 51. The collective bargaining agreement governing Allen’s employment provides for a three-day paid bereavement leave, and Allen took off the remainder of the work week (May 5, 6, and 7) as bereavement leave. Complaint � 9. Allen called in to Boeing on May 5 to report that his father had passed away and that Allen would not be in to work. Allen Dep. at 57-58. Allen failed to report for work on Monday, May 10, after his bereavement leave ended, or even to call in to ask for additional time off Id. at 59. Allen further failed to report for work or call in on May 11 or May 12. Id. Finally, on Thursday, May 13, Allen’s supervisor, Bruce Stout, called Allen at home to attempt to determine Allen’s status. Id. Stout did not reach Allen, but left a message generally inquiring as to Allen’s whereabouts and status. [FOOTNOTE 4]Id. at 59-60. Allen alleges that on the same day, his lead, Mike Valentine, also called him and that Allen asked Valentine to tell Stout that he would be in to work on May 17. Id. at 59. Allen reported to work on Monday, May 17. Id. at 61. After a crew meeting at the start of the shift, Stout asked Allen about his absences. Id. at 62. Allen stated that he wanted to use “family leave” to cover his absences from May 10 to 14. Id. Allen “just said family leave” and offered no explanation to Stout of the reason he believed he was entitled to FMLA leave, although Stout was aware — from Allen’s May 5 call to work — that Allen’s father had passed away. Id. at 58, 63. Stout told Allen he could not use family leave to cover his absences. Id. at 62. Stout then directed Allen to report to the Human Resources (“HR”) office, where Allen spoke with Rhesa Gentry, the HR Generalist assigned to Allen’s work group. Id. at 63. As Allen recalls, Gentry explained to him that, concerning his May 10 to 14 absences, “after your dad dies you can’t use family leave because you’re not taking care of him anymore.” Id. Allen then took the position that he needed FMLA leave to assist his mother, whom he had been chauffeuring and assisting with funeral arrangements during the May 10 to 14 period. Id. at 53-55, 63. Gentry rejected this as a basis for FMLA leave. Id. at 63. Allen offered no other basis for taking EMLA leave. Id. at 65. Allen concedes that he never mentioned to anyone at Boeing on May 17 any reason besides bereavement and assisting his mother as a possible basis for FMLA leave during the May 10 to 14 period. Id. In particular, Allen never mentioned gout as a basis for his May 10 to 14 absences. Id. Gentry informed Allen that he was being discharged because the unexcused absences on May 10 to 14 brought Allen to the third step of progressive discipline under the Attendance Guideline, i.e., termination of employment, and that the discharge would be finalized before the end of the work day. Id at 64, 67-68, Ex. 6. Allen went home early because he “knew [he would] be fired anyway” and he “just didn’t want to go back up to HR and listen to them.” Id. at 67-68. The termination paperwork was finalized after Allen left work. Id Exs 6 7, 8. D. POST-TERMINATION DEVELOPMENTS On May 19, Allen sought assistance from the Union to challenge his discharge. Id. at 69-70. Allen initially had difficulty reaching his Union representative, Sue Palmer. Id. at 71. Meanwhile, on May 25, Allen visited his doctor, Derek Schroder, to seek the doctor’s retroactive approval of time off from work for bereavement purposes. Id. at 88-90. In approximately mid-June, Palmer told Allen to have his doctor complete an FMLA Medical Certification Form to cover the period May 10 to 14. Id. at 83. Allen then took an FMLA Medical Certification Form to the clinic where Dr. Schroder worked, and dropped it off for the doctor to sign. Id. at 74. Although Allen had not been in to see Dr. Schroder during the May 10 to 14 period, Dr. Schroder signed an FMLA Medical Certification Form on July 6, purporting to retroactively authorize time off for Allen during the May 10 to 14 period Id Ex. 9. Dr. Schroder signed the FMLA Medical Certification Form on the basis that Allen had needed time off from work for bereavement purposes. Deposition of Derek Schroder [FOOTNOTE 5](“Schroder Dep.”) at 18, 24. Allen gave the FMLA Medical Certification Form to Union representative Palmer and she passed it on to Boeing. Allen Dep. at 75-76. The Union never filed a grievance challenging Allen’s discharge. [FOOTNOTE 6]Id. at 72. III. ARGUMENT A. ALLEN WAS NOT ENTITLED TO FMLA LEAVE FOR MAY 10 TO 14 Allen pleaded in his Complaint that he was entitled to EMLA leave for the May 10 to 14 period because he was suffering from an occurrence of gout at that time. Complaint �� 8, 10. It is abundantly clear from the record, however, that the supposed gout occurrence was simply conjured up after the fact and that the actual reason Allen took time off from work was because of his father’s death and to assist his mother with funeral arrangements and estate matters. Courts have uniformly concluded that Congress did not include bereavement as a basis for FMLA leave. Accordingly, Boeing did not violate the law in denying Allen FMLA leave for bereavement. 1. FMLA LEAVE IS NOT AVAILABLE FOR BEREAVEMENT FMLA leave is available when an employee himself or herself has a so-called “serious health condition” or when the employee is caring for a qualifying family member suffering from a “serious health condition.” [FOOTNOTE 7] 29 U.S.C. � 2612 (a)(1)(C), (D); Marchisheck v. San Mateo County, 199 F.3d 1068, 1073 (9th Cir. 1999). A qualifying family member is “a spouse, son, daughter, or parent.” 29 C.F.R. � 825. 112(a). A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care . . . or [c]ontinuing treatment by a health care provider.” 29 C.F.R. � 825. 114. Except in situations involving inpatient care, the serious health condition must result in a period of incapacity, that is, an inability to work or perform other regular daily activities, of at least three consecutive days. 29 C.F.R. � 825. 114; Marchisheck, 199 F.3d at 1074. Courts have consistently held that an employee’s eligibility for FMLA leave ends when the family member passes away and that bereavement is not a serious health condition warranting FMLA leave. FMLA “[l]eave is not meant to be used for bereavement because a deceased person has no basic medical, nutritional, or psychological needs which need to be �cared for.’” Beal v. Rubbermaid Comm’l Prods. Inc., 972 F. Supp. 1216, 1226 (S.D. Iowa 1997); accord Brown v. J.C. Penney Corp., 924 F. Supp. 1158, 1163 (S.D. Fla. 1996). FMLA leave was intended by Congress to allow an employee to provide care and emotional support for a living family member. Brown, 924 F. Supp. at 1162. As one court has observed, “if Congress wanted to ensure that employees on FMLA leave could take additional time off after a family member died from a serious health condition, it easily could have said so in the statute.” Id. The bereavement process itself is not a basis for FMLA leave because it is not incapacitating and hence not a serious health condition under the FMLA. Lange v. Showbiz Pizza Time. Inc.,12 F. Supp. 2d 1150, 1154 (D. Kan. 1998); Fisher v. State Farm Mut. Auto. Ins. Co., 999 F. Supp. 866, 871 (E.D. Tex. 1998). 2. THE TRUE REASON FOR ALLEN’S MAY 10 TO 14 ABSENCES WAS BEREAVEMENT, NOT GOUT Allen alleges in his Complaint that he was incapacitated by an occurrence of gout for the period May 10 to 14. Complaint � 10. Boeing acknowledges that Allen had been diagnosed with gout in December 1998 and that gout is an episodic condition with symptoms that flare up intermittently. Nonetheless, Allen’s unsupported allegation that he was incapacitated by gout during the May 10 to 14 time period cannot withstand scrutiny for four distinct reasons. First, Allen admittedly was not incapacitated during the May 10 to 14 period — indeed, he was busy making funeral arrangements and assisting his mother, who does not drive a car, with various appointments. Allen Dep. at 52, 53, 55. In the days following his father’s death, Allen “spent a lot of time with my mom, helping her, driving her around.” Id. at 53. Allen would drive from his north Seattle home to his mother’s home in Monroe, drive her back to Seattle to make funeral arrangements, then drive her back to Monroe. Id. at 55. Allen took his mother “to the courthouse in Everett [to] get a death certificate, community property,. and some other stuff.” Id. at 55. Allen attended his father’s funeral on May 11. 14. at 52. See Fisher, 999 F. Supp. at 869 (employee not eligible for FMLA leave because “he was active in discharging his duties as executor of his father’s estate”). Second, Allen admittedly never mentioned anything about gout to anyone at Boeing when he returned to work after the May 10 to 14 absences. Allen Dep. at 65, 78. As described in more detail below, Allen was unambiguous in his deposition testimony that the only explanations he gave to anyone at Boeing were bereavement and assisting his mother. Id. at 65. Third, Allen admittedly never went to the doctor during the period of the supposed gout occurrence. Id. at 88. Allen had gone to his doctor in the past when he had gout symptoms, and Allen acknowledges that effective prescription medications for gout are available. Id. at 88, 91, Ex. 11. Moreover, prior to May 1999, Allen’s doctor had specifically advised Allen as follows: I filled out the paperwork with regard to his gout, suggested that [Allen] could have potential absences in the future, but he would need to report here and be evaluated to receive medical absence from work. Id Ex 12 (emphasis supplied). Allen failed to follow this instruction during the supposed May 10 to 14 gout occurrence. Allen’s failure to seek medical treatment from May 10 to 14 belies his claim of an incapacitating gout episode during that period. Fourth, and perhaps most telling, when Allen finally went to see his doctor on May 25, Allen mentioned nothing to the doctor about supposedly suffering a gout attack just two weeks earlier. Rather, Allen stated that he had needed time off from work for bereavement purposes. Dr. Schroder excused Allen from work for the May 10 to 14 period for bereavement, not because of gout. Dr. Schroder testified as follows: Q… . What was the purpose of Mr. Allen’s visit on May 25th? A. He came in to discuss leave of absence from work for bereavement purposes. Q. . . . And did you then excuse . . . some absences on the basis of bereavement? A. . . . Yes, I did. Q. . . . [T]here’s no indication that on May 25th that Mr. Allen was having a gout flare or a gout episode. Is that your recollection? A. That’s correct. Q. And the time off from work from May 10th through May 14th was for bereavement purposes, not because of gout; is that correct? A. Correct. Schroder Dep. at 16, 19. Later, under questioning from Allen’s attorney, Dr. Schroder reiterated that gout, or the chronic foot pain that is a symptom of gout, was not the reason for Dr. Schroder excusing the May 10 to 14 absences: “There’s no connection between his chronic foot pain and the note allowing time off from work May 10th through May 14th.” Id. at 24. The medical records confirm that Allen did not complain of gout when he visited Dr. Schroder on May 25 Id Ex. 4. On July 6, Dr. Schroder signed an FMLA Medical Certification Form for Allen covering the May 10 to 14 period. Allen Dep. Ex. 9. Dr. Schroder’s testimony is clear that the FMLA Medical Certification Form was signed on the (mistaken) belief that Allen could take FMLA leave for bereavement purposes and had nothing to do with gout. Q What was the reason for this FMLA leave that you signed? A This particular one was for his bereavement related to his father’s death. A. This certification for those five days in May was for his bereavement leave regarding his father’s death. SCHRODER DEP. AT 18, 24. In sum, it cannot be seriously questioned that Allen was off work from May 10 to 14 for bereavement purposes, including assisting his mother with funeral arrangements and related matters, not due to an incapacitating serious health condition. In the face of the overwhelming evidence in the record, Allen’s bare assertion that he was incapacitated by gout is inadequate to establish a genuine issue of fact that a serious health condition existed warranting FMLA leave. See Boyd v. State Farm Ins. Cos.,158 F.3d 326, 331 (5th Cir. 1998) (unsupported, conclusory opinion from plaintiffs expert insufficient to create an “issue of fact as to whether [the plaintiff] suffered a serious health condition under the FMLA”) Bell v. Jewel Foods Stores, 2000 U.S. Dist. LEXIS 1821, *24 (ND. Ill. 2000) (summary judgment dismissing FMLA claim because the plaintiffs “own statement is not enough to establish he was incapacitated”); Johnson v. Primerica, 1996 U.S. Dist. LEXIS 869 (S.D.N.Y. 1996) (rejecting claim of serious health condition based merely on the plaintiffs assertions and lacking corroborating evidence); Sakellarion v. Judge & Dolph. Inc., 893 F. Supp. 800, 807 (ND. III. 1995) (summary judgment dismissing FMLA claim because “plaintiffs assertion” that family member was incapacitated, “without more, is not sufficient evidence”). Because Allen’s May 10 to 14 absences were not attributable to a serious health condition, his discharge — based on those absences — did not violate the FMLA. See Bailey v. Amsted Indus. Inc172 F.3d 1041, 1045-46 (8th Cir. 1999). B. IN ANY EVENT, ALLEN DID NOT ADEQUATELY OR TIMELY REQUEST FMLA LEAVE FOR HIS MAY 10 TO 14 ABSENCES Even if Allen could establish a genuine issue of fact as to whether he was suffering from gout or some other serious health condition warranting FMLA leave during the May 10 to 14 period, which is impossible on this record, it is indisputably true that Allen did not notify Boeing within one to two days of the start of his May 10 to 14 absences that there was any medical reason for the absences, as required under 29 C.F.R. � 825.303. Rather, Allen readily conceded in his deposition testimony in this case, and in sworn testimony in a recent unemployment benefits hearing, that he believed that the reasons for his May 10 to 14 absences were “none of [Boeing's] business” and that he had only — grudgingly — offered Boeing one reason for the absences: bereavement, including assisting his mother with funeral arrangements. Regardless of whether Allen in fact had a serious health condition, Allen’s failure to give timely notice to Boeing of any FMLA-qualifying reason for his May 10 to 14 absences is a separate and independent reason to grant summary judgment for Boeing on Allen’s FMLA claim. See Johnson v. Primerica, 1996U.S. Dist. LEXIS 869 (S.D.N.Y. 1996) (granting judgment for the employer in an FMLA case because “[e]ven if the court were to find that a serious health condition existed, [the plaintiff] has failed to show that his words or actions gave [the employer] notice of such illness.”) 1. TO BE ELIGIBLE FOR FMLA LEAVE, AN EMPLOYEE MUST PROMPTLY NOTIFY HIS OR HER EMPLOYER OF A QUALIFYING REASON FOR ABSENCES FMLA regulations require that an employee requesting FMLA leave for an unforeseeable reason [FOOTNOTE 8]notify his or her employer of the need for leave “as soon as practicable under the facts and circumstances of the particular case.” 29 C.F.R. � 825. 303. The regulations add that “[i]t is expected that the employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.” 14. (emphasis supplied). “In requesting the leave, an employee need not invoke the specific language of the statute, but must appri[s]e the employer of the request for time off for a serious health condition.” Seaman v. CSPH. Inc.,179 F.3d 297, 302 (5th Cir. 1999). “[T]o invoke the protection of the FMLA, an employee must provide notice and a qualifying reason for requesting the leave.” Brohm v. JH Properties. Inc., 149 F.3d 517, 523 (6th Cir. 1998) (emphasis supplied). When an employee has been absent from work, “the employer is not required to be clairvoyant” regarding the reason for the absence. Slaughter v. American Building Maint. Co., 64 F. Supp. 2d 319, 326 (S.D.N.Y. 1999) (quotation omitted). It has often been stated by federal courts that the “critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition.” Brohm, 149 F.3d at 523 (quotation omitted); accord Seaman, 179 F.3d at 302; Satterfield v. Wal-Mart Stores. Inc., 135 F.3d 973, 977 (5th Cir. 1998); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). “In other words, the employee’s request for time-off must at least alert the employer that he suffers from a ‘serious health condition.’” Bell2000U.S. Dist. LEXIS at *16 (ND. III. 2000). Courts have consistently granted or affirmed summary judgment dismissing FMLA claims when the employee has failed to give adequate and timely notice to his or her employer of a need to take FMLA leave. E.g , Seaman, 179 F.3d at 302 (request for vacation time to settle father’s estate “did not sufficiently inform [the employer] of an FMLA-qualifying reason for leave and his claim must fail”); Bailey, 172 F.3d at 1046 (affirming summary judgment because employer’s general knowledge that the plaintiff had “serious health conditions, was under medical care, and needed to miss work from time to time. . . did not satisfy the FMLA’s notice requirements”); Carter v. Ford Motor Co., 121 F.3d 1146, 1147-48 (8th Cir. 1997) (affirming summary judgment because plaintiffs statement to employer, six days after he left work, that he would be out sick for an indefinite period and that “it was personal,” was “neither adequate nor timely under the FMLA”); see also Slaughter, 64 F. Supp. 2d at 326 (noting that “in a significant number of instances courts have granted or upheld summary judgment or judgment as a matter of law in favor of defendants where the notice supplied to the employer was patently insufficient to inform the employer of the employee’s qualified reason for taking leave” and collecting cases). 2. ALLEN CONCEDEDLY STATED NO QUALIFYING REASON FOR HIS MAY 10 TO 14 ABSENCES Here, it is undisputed that Allen failed to articulate any FMLA-qualifying reason for his May 10 to 14 absences, either at the time the absences commenced or thereafter. Allen alleges in his Complaint that he suffered from gout during the May 10 to 14 period and that his gout was a serious health condition warranting FMLA leave. Complaint �� 8, 10. Even assuming for the purposes of this motion that gout qualifies as a serious health condition under the FMLA and that Allen was incapacitated by gout during the May 10 to 14 period, Allen has conceded that he never told Boeing that the reason for his absences from May 10 to 14 was that he was suffering from gout. Boeing only first learned of the gout explanation in Allen’s Complaint. Declaration of Yvonne S. Scobie in Support of Defendant’s Motion for Summary Judgment (“Scobie Decl.”), Ex. A at 17. Allen admits in his deposition testimony that he had no communication with Boeing management during the May 10 to 14 time period. [FOOTNOTE 9] Allen Dep. at 59. When Allen returned to work on May 17, Allen admits he said nothing about gout or any other medical reason for his absences during the prior week. In his conversation with Stout, Allen “just said family leave.” Id. at 63. In his conversation with HR Generalist Gentry, Allen first stated he was entitled to leave because of his father’s death and then stated that he was entitled to leave to assist his mother. Id. Allen repeated the point in later testimony: Q: [W]hat you had told them is the reason for your FMLA leave was to care for your mom and sort of an extended bereavement. Is that fair? A: That’s all I told them basically, yeah. But it was a number of things, you know. I didn’t go into it with them because it was obvious they weren’t ready to listen to anything I had to say. And I didn’t feel like telling them anything anyway. Id. at 65 (emphasis supplied). In further deposition testimony, Allen reiterated: [T]hey never knew why I was taking family leave to begin with. I mean, really. They never really got into it in detail. I just said I’m taking family leave and they says, no, you can’t take family leave. Id. at 78. Allen testified under oath on January 14, 2000, in a unemployment benefits hearing, about what he told Boeing about his May 10 to 14 absences and, on that subject, his hearing testimony was entirely consistent with his deposition testimony and even more emphatic: Q: Did you tell them why you weren’t at work? A: No . . . . I don’t believe I told them anything other than I was coming back to work. Q: So you didn’t even tell them why you were gone? A: Uh, I assumed they knew. My father had died. Q: So you – A: I believe I — I may have mentioned it. I don’t really remember, you know. I wouldn’t necessarily have told them just to tell them. I mean, it’s really none of their business, you know, that’s the way I felt about – Q: None of their business why you weren’t at work for those – A: Uh-huh. Q: — eight days? A: Right. Scobie Decl., Ex. A at 12-13. This case is very similar to Seaman, 179 F.3d 297, where the Fifth Circuit affirmed dismissal of an FMLA claim on summary judgment. The plaintiff in Seamanhad mentioned earlier in his employment a potential need to take time off for a medical condition, bipolar disorder. At the time of the particular absence at issue in the case, however, the plaintiff conceded that he did not inform [his supervisor] that he needed time off for a serious medical condition. His only stated reason for the requested vacation time was the desire to settle his father’s estate. . This does not qualify as a basis for FMLA leave. [The plaintiff] did not sufficiently inform [the employer] of an FMLA-qualifying reason for leave and his claim must fail. Id. at 302. Likewise, Allen failed to sufficiently inform Boeing of an FMLA-qualifying reason for his May 10 to 14 absences, and consequently his FMLA claim must fail. IV. CONCLUSION Allen’s FMLA claim should be dismissed on two independent grounds. First, Allen has failed to establish that he suffered from a “serious health condition” or otherwise qualified for FMLA leave during the May 10 to 14 period. Second, Allen unquestionably did not make an adequate or timely request for FMLA leave during the May 10 to 14 absences, upon his return to work on May 17, or in the days following his termination. Consequently, Boeing respectfully requests summary judgment dismissing Allen’s Complaint with prejudice. ::::FOOTNOTES:::: FN1The following rendition of the facts is based on Allen’s Complaint and deposition testimony, which are assumed to be true strictly for the purposes of this summary judgment motion. FN2Relevant excerpts of the transcript of the deposition of Larry Dale Allen are attached to the Declaration of Paul E.Smith in Support of Defendant’s Motion for Summary Judgment (“Smith Decl.”), filed herewith, as Exhibit A. FN3Unless stated otherwise, all dates hereinafter are in 1999. FN4Even setting aside the course of progressive discipline Boeing was following with Allen, the four-day period during which he did not even call in to report his status or whereabouts is considered job abandonment under the Attendance Guideline and was grounds for termination standing alone. Allen Dep., Ex. 1 at 1 (“Unreported absences of four or more consecutive work days . . . may result in dismissal under the Company’s polic[y] regarding Abandonment of Job…”) FN5Relevant excerpts of the transcript of the deposition of Derek Schroder are attached to the Smith Decl. as Exhibit B. FN6Recently, Allen has filed an unfair labor practice charge with the National Labor Relations Board against the Union. Smith Decl., Ex. C. Allen alleges in the charge that the Union failed to respond to his request that a grievance be filed challenging his discharge. Id. FN7FMLA leave is also available when a child is born or adopted, 29 U.S.C. � 2612(a)(1)(A), (B), but that basis for FMLA leave is not at issue in this lawsuit FN8Employees must give at least 30 days’ notice when leave is taken for a foreseeable reason, such as scheduled surgery. 29 C.F.R. � 825.302. For the purposes of this motion, it will be presumed that Allen’s alleged gout occurrence was unforeseeable. FN9Allen’s supervisor, Bruce Stout, placed a telephone call to Allen on May 13, but there was no answer at Allen’s house and Stout left a message on Allen’s answering machine. Allen Dep. at 59. Allen’s lead, Mike Valentine, also called Allen on May 13 and reached him. Id. A lead is not a supervisor or manager at Boeing, but in any event Allen cannot recall saying anything to Valentine other than a request to tell Stout that Allen would be back to work on May 17. Id. at 59-60. Signature: PAUL E. SMITH PERKINS COIE LLP � 2000 Juritas.com. All Rights Reserved.

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