United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE
case is before the Court on the Motion for Partial Summary
Judgment (“Motion”) [Doc. # 39] filed by
Defendant ROC-Houston, P.A. (“ROC-Houston”).
Defendant seeks summary judgment on Plaintiff's claim of
retaliation under the Family and Medical Leave Act
(“FMLA”), breach of contract claim, and Fair
Labor Standards Act (“FLSA”) claim related to
“unpaid wages” separate from unpaid overtime
wages. Plaintiff Meseret Mesfin filed a Response [Doc. # 41],
addressing only the FMLA claim. Defendant filed a Reply [Doc.
# 43]. Having reviewed the record and the applicable legal
authorities, the Court grants
began working for ROC-Houston in the billing and collections
department in October 2008. In March 2016, Plaintiff
complained to her doctor, Dr. Samuel Huang, that she was
experiencing stress and anxiety. Dr. Huang signed a note that
stated, “Meseret Mesfin was seen at Kelsey-Seybold
Clinic on 3/17/2016 and may return to work on 4/17/2016. She
will have no restrictions.” Plaintiff has stated under
oath that she was unable to work beginning on March 17, 2016,
and continuing through her termination on March 30, 2016.
March 22, 2016, ROC-Houston's Human Resources Director,
Lorena Cornelio, sent an email to Plaintiff requesting a
medical certification by March 25, 2016. Plaintiff responded,
stating that she would need more than three days to obtain
the certification and asking to use her paid sick time. Ms.
Cornelio responded on March 24, 2016, noting that Plaintiff
was not on authorized leave and requesting the medical
certification as soon as possible “for FMLA compliance
reasons.” Ms. Cornelio extended the deadline for the
certification to March 28, 2016. Later that day, Ms. Cornelio
again emailed Plaintiff advising her that it was imperative
that ROC-Houston receive the medical certification promptly
in order “to determine whether [Plaintiff was] eligible
for leave under the FMLA.” Later on March 24, 2016, Dr.
Huang submitted the completed medical certification to
March 30, 2016, Ms. Cornelio telephoned Plaintiff and
informed her that her employment had been terminated because
she held outside employment in violation of company policy.
filed this lawsuit on August 9, 2016. In her Second Amended
Complaint [Doc. # 21], filed January 27, 2017, Plaintiff
asserts an FLSA claim, a retaliation claim under the FMLA,
and a breach of contract claim. After the close of discovery,
Defendant filed its Motion. Plaintiff in her Response
addressed only the arguments relating to the FMLA retaliation
claim. The Motion has been fully briefed and is
now ripe for decision.
STANDARD FOR SUMMARY JUDGMENT
of the Federal Rules of Civil Procedure provides for the
entry of summary judgment against a plaintiff who fails to
make a sufficient showing of the existence of an element
essential to her case and on which she will bear the burden
at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Curtis v. Anthony, 710 F.3d 587, 594
(5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). Summary
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(a); Celotex,
477 U.S. at 322-23; Curtis, 710 F.3d at 594.
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an “absence of a genuine issue of
material fact.” ACE Am. Ins. Co. v. Freeport
Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th
Cir. 2012). The moving party, however, “need not negate
the elements of the nonmovant's case.” Coastal
Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759
F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)). The
moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party's
case.” Malacara v. Garber, 353 F.3d 393, 404
(5th Cir. 2003) (citing Celotex, 477 U.S. at 323;
Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.
moving party meets its initial burden, the non-movant must go
beyond the pleadings and designate specific facts showing
that there is a genuine issue of material fact for trial.
Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141
(5th Cir. 2004); Littlefield v. Forney Indep. Sch.
Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its
resolution could affect the outcome of the action.”
Spring Street Partners-IV, L.P. v. Lam, 730 F.3d
427, 435 (5th Cir. 2013). “A dispute as to a material
fact is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th
Cir. 2006) (internal citations omitted).
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). Conclusory “allegations and
denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial.” Pioneer Exploration, L.L.C. v. Steadfast
Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002);
accord Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.
2008). Instead, the nonmoving party must present specific
facts which show “the existence of a genuine issue
concerning every essential component of its case.”
Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538
(5th Cir. 2012) (citation and internal quotation marks
omitted). In the absence of any proof, the court will not
assume that the non-movant could or would prove the necessary
facts. Little, 37 F.3d at 1075 (citing Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Court may make no credibility determinations or weigh any
evidence, and must disregard all evidence favorable to the
moving party that the jury is not required to believe.
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229
(5th Cir. 2010) (citing Reaves Brokerage Co., 336
F.3d at 412-13). The Court is not required to accept the
nonmovant's conclusory allegations, speculation, and
unsubstantiated assertions which are either entirely
unsupported, or supported by a mere scintilla of evidence.
Id. (citing Reaves Brokerage, 336 F.3d at
413); accord, Little, 37 F.3d at 1075. Affidavits
cannot preclude summary judgment unless they contain
competent and otherwise admissible evidence. See
Fed. R. Civ. P. 56(c)(4); Love v. Nat'l Med.
Enters., 230 F.3d 765, 776 (5th Cir. 2000).
“[w]hen evidence exists in the summary judgment record
but the nonmovant fails even to refer to it in the response
to the motion for summary judgment, that evidence is not
properly before the district court.” Malacara,
353 F.3d at 405. “Rule 56 does not impose upon the
district court a duty to sift through the record in search of
evidence to support a party's opposition to summary