Hodgens v. General Dynamics Corp.

United States Court of Appeals

For the First Circuit

No. 97-1704

JOHN M. HODGENS,

Plaintiff, Appellant,

v.

GENERAL DYNAMICS CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Patricia E. Andrews for appellant.

Barbara L. Sloan, Attorney, C. Gregory Stewart, General

Counsel, J. Ray Terry, Jr., Deputy General Counsel, Gwendolyn Young

Reams, Associate General Counsel, and Lorraine C. Davis, Assistant

General Counsel, on brief for Equal Employment Opportunity

Commission, amicus curiae.

Lynette Labinger, Roney & Labinger, Christopher M. Mulhearn,

Tate & Elias on brief for Rhode Island Affiliate American Civil

Liberties Union, amicus curiae.

Neal J. McNamara for appellee.

Corrie L. Fischel, Ann Elizabeth Reesman, and McGuiness &

Williams on brief for Equal Employment Advisory Council, amicus

curiae.

May 21, 1998

BOWNES, Senior Circuit Judge. This is the first time we

have had occasion to construe the Family and Medical Leave Act of

1993 ("FMLA"), 29 U.S.C. 2601-2619 (1994), which established

important rights that protect millions of American employees.

Plaintiff John Hodgens sued his former employer, General

Dynamics Corporation ("General Dynamics" or "GD"), for allegedly

terminating his employment because he took necessary medical leave

that was protected under the FMLA. His complaint further alleged

that his discharge constituted discrimination based on his

disability (high blood pressure and atrial fibrillation), in

violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

12101-12213 (1994). The district court granted GD's motion for

summary judgment. The court found that Hodgens's leave was not

protected under the FMLA because he did not have a "serious health

condition," as required by the Act. 29 U.S.C. 2612(a)(1)(D).

And the court rejected his ADA claim on the ground that his medical

condition, after taking account of mitigating treatment, did not

constitute a disability within the meaning of the ADA. 42 U.S.C.

12102(2)(A). Although we rely on different reasoning, we affirm

the grant of summary judgment.

Facts

We recount the facts and draw all reasonable inferences

in the light most favorable to Hodgens, as we must when we review

a grant of summary judgment. See DeNovellis v. Shalala, 124 F.3d

298, 306 (1st Cir. 1997). From 1964 until 1985, Hodgens worked for

General Dynamics at its Quincy, Massachusetts location. The

facility was closed and Hodgens was laid off in 1985. In

approximately February 1988, General Dynamics hired Hodgens as a

Senior Planner at its Quonset Point (R.I.) facility. He worked in

the program planning area until September 1991.

His performance was evaluated quite highly during his

years in program planning. GD's evaluation system (as applied to

his positions with the company) consisted of an annual ranking,

covering the period beginning March 1 of one year through the end

of February of the next. Similarly situated employees (in the same

or similar job titles, pay grades, etc.) were placed in "peer" or

"rank" groups and then numerically "ranked" based on performance.

The employees in a particular rank group were evaluated by all

supervisors of such employees, at a meeting where performance was

discussed and rankings determined by consensus. During the three

years in which Hodgens worked in program planning, he was ranked

first (among four or five) in his peer group.

In September 1991, the program planning function at

Quonset Point was eliminated and Hodgens was reassigned to the

production control area, where he worked until his termination in

July 1994. Unlike program planning where Hodgens had tracked

costs and performed a data auditing function, not requiring a deep

knowledge of construction procedures production control was

"hands on" work, requiring familiarity with the details of

submarine hull and components manufacturing. Because Hodgens had

not previously done this type of work, he was at a disadvantage

relative to his co-workers who did have such experience. As a

result, Hodgens's performance fell. In 1992, he was ranked eighth

of ten; the employees who ranked ninth and tenth were laid off that

year as part of a reduction in force ("RIF"). In 1993, Hodgens

ranked seventh of eleven in his rank group. Hodgens was concerned

about his performance in production control, and especially worried

about the possibility that his low performance might lead to his

being laid off if there were to be another RIF.

For his first two years in production control, Hodgens

performed sound dampening functions (a process by which submarines

are soundproofed). He performed this part of his duties in a

satisfactory manner; his last evaluation covering the period 1993-

94 stated that he did an "excellent job in sound dampening." At

some point during this period, however, GD decided to change its

employees' responsibilities from specializing in a particular

function to include all aspects of a project. Hodgens was assigned

to "Module 82," an area on the Seawolf submarine. His duties

included monitoring and facilitating the work on the module,

filling work orders, maintaining proper material flow, and solving

production problems. He worked on Module 82 between April and the

beginning of August 1993.

It was during this period that Hodgens began to

experience medical problems, including chest pains, visual

problems, and profuse perspiration. These began in approximately

June or July 1993. On August 4, he began to see his doctor, Dr.

Joanne Wilkinson. She was "most concerned" that his symptoms,

coupled with his history of hypertension (high blood pressure or

HBP), might indicate that he was suffering from angina, which could

be extremely serious or even fatal. She therefore advised Hodgens

to undergo a stress test and an electrocardiogram (EKG). Dr.

Wilkinson continued to see Hodgens on frequent occasions throughout

August, during which time she was unable either to make a diagnosis

or to rule out angina. During some of these visits, Hodgens's

blood pressure was "way up," and Dr. Wilkinson continued to treat

Hodgens as if he had angina.

During the period of these visits, from August 4 until

September 27, Hodgens did not return to work. According to him,

this was because of his need for numerous visits to Dr. Wilkinson

and other physicians for evaluation and treatment, and because he

wanted to be sure he did not do anything that might aggravate any

potential heart condition. Dr. Wilkinson testified at her

deposition that she thought it was "reasonable" for Hodgens to stay

home from work until he got the results of his stress test,

although, if her patient had wanted to return to work during the

interim, she would have been "comfortable" with that.

Dr. Wilkinson also treated Hodgens for hypertension,

prescribing a combination of medications, and for acute anxiety

reactions. As part of the treatment for the latter, Dr. Wilkinson

referred Hodgens to a psychologist for counseling to help reduce

his stress. According to Hodgens's testimony, he had never

previously experienced the degree of stress that he experienced in

Module 82. Dr. Wilkinson also referred Hodgens to Dr. Jacobs, an

ophthalmologist, because of his visual problems. Dr. Jacobs

determined that he was suffering from migraine auras.

On September 13, 1993, Dr. Wilkinson told Hodgens that

the results of his EKG, MRI and stress test were normal. She was

able to rule out a stroke or a serious neurological problem, but

she was still unable to rule out the possibility of angina.

Nevertheless, she cleared Hodgens to return to work as of September

20. He did not return on that day, however, because he felt ill in

his car and had to return home. He did return to work on September

21. As a matter of General Dynamics policy, GD's company nurse had

to examine any employee, such as Hodgens, who had been out of work

for more than five days because of illness. During her

examination, the nurse detected that Hodgens was experiencing

atrial fibrillation (irregular heartbeat) and that his blood

pressure was elevated. She therefore refused to allow him to

return to work and suggested that he see his doctor immediately.

Hodgens did so, and Dr. Wilkinson diagnosed him as

suffering from atrial fibrillation, a serious and potentially life-

threatening heart condition. After treating him, by prescribing

medication to thin his blood in order to prevent a stroke, Dr.

Wilkinson told Hodgens he could return to work on September 27.

She restricted him to working half-days during the first week, and

to working a light-duty schedule for the following three weeks.

Hodgens returned to work on September 27. General

Dynamics changed his assignment so that he was no longer part of a

module; according to GD, Module 82 was nearing completion.

Instead, until December 1993, Hodgens was assigned exclusively to

performing sound dampening tasks.

Shortly thereafter, Hodgens had to take additional

intermittent medical leave to deal with an ear problem. His

hearing problem manifested itself on September 29, 1993, and he saw

a physician six times in three months. On January 7, 1994, he had

ear surgery on an outpatient basis. The surgery left him dizzy and

fatigued; in order to recuperate, he required medication and bed

rest for several days. He returned to work on January 11. In

February, he was assigned to the machine shop (GD says this was in

March). Here, his duties were, according to Hodgens, "low-level,

demeaning, and not the type normally performed by Senior Planners."

He was no longer performing sound dampening duties. Instead,

another employee was assigned to those duties, an employee who

Hodgens claims was less experienced and less qualified to perform

them.

In April 1994, Hodgens asked his new supervisor for

vacation leave to handle a family emergency. His supervisor

responded that he was taking "too much time off," and issued a

verbal warning about his attendance.

On May 10, Hodgens met with his former supervisor, and

received his annual evaluation covering the period March 1993

through February 1994. The evaluation contained the statement:

"Make every effort to have your absenteeism fall within the company

guidelines."

At the same May 10 meeting, the supervisor told him he

was being laid off for lack of work, effective July 8, 1994. His

performance had been ranked seventh among seven members of his rank

group for the year ending February 1994.

Hodgens brought suit in district court, alleging that his

termination violated the FMLA because it was an adverse action

taken on the basis of his having availed himself of protected

leave. He also alleged that it violated the ADA because it was

based on his disabilities. General Dynamics filed a motion for

summary judgment, contending that Hodgens failed to establish a

prima facie case under the FMLA because he did not suffer from a

"serious health condition." GD also argued that Hodgens is not

protected by the ADA because his conditions did not constitute a

"disability." The district court granted GD's motion. According

to the court, "an employee's absence [from work] must be necessary

to enable the employee to receive treatment. If an employee can

obtain treatment without missing work, any period of absence cannot

be attributed to the need to receive treatment." As for the ADA,

the court held that, taking into account the ameliorative effects

of Hodgens's medications, his medical conditions did not constitute

a disability under the ADA.

I

We review grants of summary judgment de novo. Dubois v.

United States Dep't of Agric., 102 F.3d 1273, 1283 (1st Cir. 1996),

cert. denied, 117 S. Ct. 2510 (1997). Summary judgment is

appropriate when "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

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

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

as a matter of law." Fed. R. Civ. P. 56(c).

"'The very mission of the summary judgment procedure is

to pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.'" DeNovellis, 124 F.3d

at 305-6 (quoting Fed. R. Civ. P. 56(e) advisory committee's note

to 1963 Amendment). The moving party "bears the initial

responsibility of informing the district court of the basis for its

motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material

fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once

the moving party has properly supported its motion for summary

judgment, the burden shifts to the nonmoving party, with respect to

each issue on which he has the burden of proof, to demonstrate that

a trier of fact reasonably could find in his favor. Id. at 322-25.

At this stage, the nonmoving party "may not rest upon mere

allegation or denials of [the movant's] pleading, but must set

forth specific facts showing that there is a genuine issue" of

material fact as to each issue upon which he would bear the

ultimate burden of proof at trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986); see Celotex, 477 U.S. at 321-23.

II

Because our circuit has not previously had occasion to

consider the Family and Medical Leave Act of 1993, we set forth

some background at the outset. "The FMLA was enacted to help

working men and women balance the conflicting demands of work and

personal life. It does so by recognizing that there will be times

in a person's life when that person is incapable of performing her

duties for medical reasons." Price v. City of Fort Wayne, 117 F.3d

1022, 1024 (7th Cir. 1997).

The twin purposes of the FMLA are to "balance the demands

of the workplace with the needs of families" and "to entitle

employees to take reasonable leave for medical reasons." 29 U.S.C.

2601(b)(1) & (2). Among the findings prompting the Act was

Congress's belief that "there is inadequate job security for

employees who have serious health conditions that prevent them from

working for temporary periods." 29 U.S.C. 2601(a)(4). The FMLA

seeks to accomplish its purposes "in a manner that accommodates the

legitimate interests of employers." 29 U.S.C. 2601(b)(3).

The FMLA contains two distinct types of provisions.

First, it creates a series of substantive rights. Eligible

employees "shall be entitled" to up to twelve weeks of unpaid leave

per year for any one of the following purposes: when the employee

has "a serious health condition that makes [him or her] unable to

perform the functions of [his or her] position," 29 U.S.C.

2612(a)(1)(D); to care for a close family member with such a

condition, 29 U.S.C. 2612(a)(1)(C); or because of the birth,

adoption, or placement in foster care of a child, 29 U.S.C.

2612(a)(1)(A) & (B). See also 29 U.S.C. 2611(11); 29 C.F.R.

825.100(a), 825.114 (1997) (defining a "serious health condition").

Following a qualified absence, the employee is entitled to return

to the same position or an alternate position with equivalent pay,

benefits, and working conditions, and without loss of accrued

seniority. 29 U.S.C. 2614(a)(1); 29 C.F.R. 825.100(c) (1997).

The FMLA also provides for "intermittent" leave, which allows an

employee to take such leave intermittently "when medically

necessary," such as to attend appointments with a health care

provider for necessary treatment of a serious health condition. 29

U.S.C. 2612(b); 29 C.F.R. 825.117 (1997) (defining requirements

for intermittent leave).

These rights are essentially prescriptive, "set[ting]

substantive floors" for conduct by employers, and creating

"entitlements" for employees. Diaz v. Fort Wayne Foundry Corp.,

131 F.3d 711, 712-13 (7th Cir. 1997). As to these rights,

therefore, the employee need not show that the employer treated

other employees less favorably, and an employer may not defend its

interference with the FMLA's substantive rights on the ground that

it treats all employees equally poorly without discriminating. Id.at 712. In such cases, the employer's subjective intent is not

relevant. The issue is simply whether the employer provided its

employee the entitlements set forth in the FMLA for example, a

twelve-week leave or reinstatement after taking a medical leave.

Because the issue is the right to an entitlement, the employee is

due the benefit if the statutory requirements are satisfied,

regardless of the intent of the employer.

In addition to creating the above entitlements, the FMLA

provides protection in the event an employee is discriminated

against for exercising those rights. See 29 U.S.C. 2615(a)(1)

& (2); 29 C.F.R. 825.220 (1997). In particular, "[a]n employer

is prohibited from discriminating against employees . . . who have

used FMLA leave." 29 C.F.R. 220(c). Nor may employers "use the

taking of FMLA leave as a negative factor in employment actions,

such as hiring, promotions or disciplinary actions." 29 C.F.R.

825.220(c). For any such violation, the employer is subject to

a claim for compensatory damages and, unless the court finds the

violation occurred in good faith, additional liquidated damages.

29 U.S.C. 2617(a)(1)(A). These provisions are essentially

proscriptive.

It is this proscriptive group of violations of the Act

that is at issue in the present case. Hodgens claims that his

termination violated the FMLA because it was prompted by the fact

that he took sick leave to which he was entitled under the statute.

In such a case, the employer's motive is relevant, and the issue is

whether the employer took the adverse action because of a

prohibited reason or for a legitimate nondiscriminatory reason.

Such issues are analogous to those raised in cases involving other

types of discrimination, such as Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e through 2000e-17. In such cases, courts

have created a framework for analyzing the tricky issue of

motivation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

800-06 (1973) (discrimination under Title VII); DeNovellis, 124

F.3d at 308 (under ADEA); Katz v. City Metal Co., 87 F.3d 26, 30

n.2 (1st Cir. 1996) (under ADA). Some of our sister circuit courts

have applied this framework to the proscriptive portion of the

FMLA, but not to claims under the prescriptive portion of the Act.

See, e.g., Diaz, 131 F.3d at 712-13; Morgan v. Hilti, Inc., 108

F.3d 1319, 1323 (10th Cir. 1997). We follow that lead and hold

that, when there is no direct evidence of discrimination, the

McDonnell Douglas burden-shifting framework applies to claims that

an employee was discriminated against for availing himself of FMLA-

protected rights.

McDonnell Douglas allocates the burdens of production and

persuasion in accordance with a three-step procedure. SeeMcDonnell Douglas, 411 U.S. at 802-04. Under that framework, a

plaintiff employee must carry the initial burden of coming forward

with sufficient evidence to establish a prima facie case of

discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802;

see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-

53 (1981). If he does so, then the burden shifts to the employer

"to articulate some legitimate, nondiscriminatory reason for the

employee's [termination]," sufficient to raise a genuine issue of

fact as to whether it discriminated against the employee.

McDonnell Douglas, 411 U.S. at 802; see Burdine, 450 U.S. at 253.

The employer "must clearly set forth, through the introduction of

admissible evidence, the reasons for the [employee's termination].

The explanation provided must be legally sufficient to justify a

judgment for the [employer]." Burdine, 450 U.S. at 255. If the

employer's evidence creates a genuine issue of fact, the

presumption of discrimination drops from the case, and the

plaintiff retains the ultimate burden of showing that the

employer's stated reason for terminating him was in fact a pretext

for retaliating against him for having taken protected FMLA leave.

McDonnell Douglas at 804; Burdine, 450 U.S. at 257; St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). While a

satisfactory evidentiary explanation by the employer for its

actions destroys the legally mandatory inference of discrimination

arising from the employee's prima facie case, the evidence and

inferences that properly can be drawn from the evidence presented

during the employee's prima facie case may be considered in

determining whether the employer's explanation is pretextual.

Hicks, 509 U.S. at 511; see also infra at 36-38 (discussing various

ways in which the employee might meet his burden of demonstrating

pretext).

To make out a prima facie case of retaliation, Hodgens

must show that (1) he availed himself of a protected right under

the FMLA; (2) he was adversely affected by an employment decision;

(3) there is a causal connection between the employee's protected

activity and the employer's adverse employment action. SeeRandlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997); Hilti,

Inc., 108 F.3d at 1324.

III

We will follow McDonnell Douglas's three-step process in

analyzing Hodgens's claim that his termination violated the FMLA

because it was prompted by the fact that he took sick leave to

which he was entitled under the statute. The first step in our

analysis is to determine whether Hodgens has satisfied all three

elements of his prima facie case. There is no dispute as to the

second element: his termination was an adverse action. General

Dynamics disputes the first and third elements of Hodgens's prima

facie case.

A

General Dynamics asserts that Hodgens has failed to

satisfy the first element of his prima facie case. It contends

that his absences were not protected by the FMLA for two

alternative reasons.

1

First, according to GD, Hodgens was not even entitled to

medical leave under the FMLA because he did not suffer from a

"serious health condition" as the statute requires. The district

court granted summary judgment to General Dynamics largely on this

basis. For the reasons set forth below, we hold that Hodgens did

suffer from a "serious health condition" within the meaning of the

FMLA.

The FMLA entitles an employee to twelve workweeks of

leave during any twelve-month period "[b]ecause of a serious health

condition that makes the employee unable to perform the functions

of the position of such employee." 29 U.S.C. 2612(a)(1)(D). The

Act defines a "serious health condition" as

an illness, injury, impairment, or physical or

mental condition that involves:

(A) inpatient care in a hospital, hospice, or

residential medical care facility; or

(B) continuing treatment by a health care

provider.

29 U.S.C. 2611(11). Hodgens does not argue that he received any

inpatient care for his condition; thus, 2611(11)(A) does not

apply. He does, however, contend that his visits to Dr. Wilkinson

constituted "continuing treatment by a health care provider."

Under the applicable Department of Labor regulations,

825.114 (a) For purposes of FMLA, "serious

health condition" means an illness, injury,

impairment, or physical or mental condition

that involves:

. . .

(2) Any period of incapacity requiring

absence from work, school, or other regular

daily activities, of more than three calendar

days, that also involves continuing treatment

by (or under the supervision of) a health care

provider; or

(3) Continuing treatment by (or under

the supervision of) a health care provider for

a chronic or long-term health condition that

is incurable or so serious that, if not

treated, would likely result in a period of

incapacity of more than three calendar days;

or for prenatal care.

(b) "Continuing treatment by a health care

provider" means one or more of the following:

(1) The employee or family member in

question is treated two or more times for the

injury or illness by a health care provider.

Normally this would require visits to the

health care provider or to a nurse or

physician's assistant under direct supervision

of the health care provider.

(2) The employee or family member is

treated for the injury or illness two or more

times by a provider of health care services

(e.g., physical therapist) under orders of, or

on referral by, a health care provider, or is

treated for the injury or illness by a health

care provider on at least one occasion which

results in a regimen of continuing treatment

under the supervision of the health care

provider for example, a course of medication

or therapy to resolve the health condition.

(3) The employee or family member is

under the continuing supervision of, but not

necessarily being actively treated by, a

health care provider due to a serious long-

term or chronic condition or disability which

cannot be cured. Examples include persons

with Alzheimer's, persons who have suffered a

severe stroke, or persons in the terminal

stages of a disease who may not be receiving

active medical treatment.

29 C.F.R. 825.114(a) & (b) (1993).

Hodgens suffered from numerous symptoms in July and

August 1993. Dr. Wilkinson examined him and, concerned about

angina and its serious implications, ordered a series of tests

directed toward diagnosing the cause and nature of his problem,

with a view toward prescribing treatment (which she eventually did,

although she never was able to rule out angina). Then between

September 22 and 27, Hodgens was diagnosed with atrial

fibrillation, and again was required to make many visits to Dr.

Wilkinson's office. This latter period constituted more than three

consecutive days' worth of absences from work for a serious health

condition. And these absences were medically necessary: Hodgens's

treating physician, Dr. Wilkinson, filled out a work-restriction

form at the top of which appeared the date September 22 stating

September 27 as the date on which Hodgens could return to work.

Dr. Wilkinson's form carries the inference that that entire period

of absence was medically necessary, and GD nowhere rebuts that

inference. Indeed, on September 21, GD's own nurse refused to let

Hodgens return to work at least in part because of his atrial

fibrillation. Thus, we cannot accept GD's claim, based on Dr.

Wilkinson's initially clearing Hodgens to return to work on

September 20, that Hodgens's health condition did not prevent him

from working within the meaning of the FMLA during the period

September 22-27.

At least the September 22-27 diagnosis and treatment

program met the three day requirement of 29 C.F.R. 825.114(a)(2)

(1993), as long as there was continuing treatment under

825.114(b). Hodgens clearly satisfied the requirements of

825.114(b)(1), at least sufficient to satisfy summary judgment,

because he had two or more treatments by a health care provider.

He also fits within 825.114(b)(2) because he had seen a physician

at least once and been placed on a treatment regimen of medication.

See Price v. Marathon Cheese Corp., 119 F.3d 330, 335 (5th Cir.

1997).

General Dynamics argues that many of Hodgens's earlier

absences were not covered by the FMLA because "Dr. Wilkinson was

never able to diagnose precisely what caused [Hodgens's] symptoms."

Def. Br. at 22. It seems unlikely that Congress intended to punish

people who are unlucky enough to develop new diseases, or to suffer

serious symptoms for some period of time before the medical

profession is able to diagnose the cause of the problem. Indeed,

one reason for taking "intermittent leave" under the FMLA would be

to visit the doctor for purposes of diagnosis and treatment, even

if the employee does not take leave for the periods in between such

visits. It would seem that Congress intended to include visits to

a doctor when the employee has symptoms that are eventually

diagnosed as constituting a serious health condition, even if, at

the time of the initial medical appointments, the illness has not

yet been diagnosed nor its degree of seriousness determined. The

Labor Department's final regulations support this interpretation:

"Treatment for purposes of paragraph (a) of this section [defining

'serious health condition' in terms of 'treatment' received, inter

alia] includes (but is not limited to) examinations to determine if

a serious health condition exists and evaluations of the

condition." 29 C.F.R. 825.114(b) (1997) (emphasis added). Thus,

as long as Hodgens satisfied, at some point in time, the "more than

three consecutive days" requirement for establishing a serious

health condition, his intermittent absences for less than four days

(even for portions of one day) were protected under the FMLA if

they were necessary "to determine if a serious health condition

exists," id., or to treat such a condition. This is true even if

the intermittent absences occurred before the consecutive absences.

In addition to 825.114(a)(2), Hodgens fits within

825.114(a)(3). If not treated, Hodgens's illness could have led

to a lot more absences from work, or could even have proved fatal,

thus bringing him within the ambit of 825.114(a)(3). Subsection

(a)(3) also requires him to meet the definition of continuing

treatment under one of the subsections of 825.114(b). As noted

supra, he clearly satisfied the requirements of subsections (b)(1)

and (b)(2), at least sufficient to survive summary judgment. With

all inferences taken in his favor, the issue is trialworthy, i.e.,

a trier of fact could find that he met all statutory requirements

to show that he did suffer from a "serious health condition," and

so his medically necessary leave was protected by the FMLA to the

extent it was necessitated by that condition.

2

The district court's alternative reason for rejecting

Hodgens's FMLA claim is that "there is no evidence that [his

health] condition rendered him unable to perform the functions of

his position," as required in 29 U.S.C. 2612(a)(1)(D). The court

therefore concluded that his absences were not protected conduct

under the FMLA. We reject this contention as well. The court

apparently read the statute to require Hodgens to be actually

incapacitated, in the sense of medically too sick to work, for any

absence that was to be protected by the FMLA.

We disagree. The statutory language "unable to

perform" his job in 29 U.S.C. 2612(a)(1)(D) does not

necessarily mean that an employee's physical condition itself

"actually incapacitate[s]" him and prevents him from working. The

statute could also be read to protect absences from work for

whatever time the employee needs in order to be diagnosed and

treated for a serious medical condition. Under this reading of the

statutory language, the employee may be found to be "unable to

perform" his job if his medical appointments conflict with his work

(and the other statutory requirements are met), even if he is not

"too sick to work." The text of the statute does not specify which

of these two interpretations of "unable to perform" (or any other)

was intended by Congress.

In determining which interpretation to adopt, we must

consider the fact that the FMLA is a remedial statute. Cf. Arnoldv. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998)

(interpreting the Americans with Disabilities Act). "It is a

'familiar canon of statutory construction that remedial

legislation,'" such as the FMLA, "should be construed broadly to

effectuate its purposes.'" Id. (quoting Tcherepnin v. Knight, 389

U.S. 332, 336 (1967)). The fundamental purpose of the FMLA is "to

entitle employees to take reasonable leave for medical reasons," 29

U.S.C. 2601(b)(2), "to help working men and women balance the

conflicting demands of work and personal life," City of Fort Wayne,

117 F.3d at 1024. This purpose is better served by adopting the

broader reading than by adopting the district court's more

constrained construction requiring physical incapacitation. We

hold that it will suffice if an employee is "unable to perform" his

job because of the need to obtain medical treatment or a diagnosis;

he does not have to be physically unable to work.

The legislative history of the FMLA supports this

reading.

The requirement that the employee be unable to

perform his or her job functions does not mean

in each instance that the employee must

literally be so physically and mentally

incapacitated that he or she is generally

unable to work. . . . [I]f the employee must

be physically absent from work from time to

time in order to receive the treatment, it

follows as a matter of common sense that the

employee is, during the time of the

treatments, temporarily "unable to perform the

functions of his or her position" for purposes

of [ 2612(a)(1)(D)] and therefore eligible

for leave for the time necessary to receive

the treatments.

S. Rep. No. 103-3, pt. 1, at 25 (1993), reprinted in 1993

U.S.C.C.A.N. 3, 27 (emphasis added); see id. at 29, 1993

U.S.C.C.A.N. at 31 (noting the "general test that either the

underlying health condition or the treatment for it requires that

the employee be absent from work on a recurring basis or for more

than a few days for treatment or recovery" (emphasis added)).

Our interpretation is further buttressed by the

Department of Labor's final regulations. The final version of 29

C.F.R. 825.114(a) (1997), like the corresponding interim

regulation, defines "serious health condition" as involving

(1) inpatient care or (2) continuing treatment. Under the rubric

of continuing treatment, the regulation describes "incapacity" as

"inability to work . . . due to the serious health condition,

treatment therefor, or recovery therefrom." 29 C.F.R.

825.114(a)(2)(i) (emphasis added). In a similar vein, 29 C.F.R.

825.114(b) (1997) reads as follows: "Treatment for purposes of

paragraph (a) of this section [defining 'serious health condition'

in terms of 'treatment' received, inter alia] includes (but is not

limited to) examinations to determine if a serious health condition

exists and evaluations of the condition" (emphasis added). See

also 29 C.F.R. 825.115 (1997) ("An employee who must be absent

from work to receive medical treatment for a serious health

condition is considered to be unable to perform the essential

functions of the position during the absence for treatment.").

It is thus apparent that the agency charged with

interpreting the FMLA and filling in any gaps or ambiguities in

the Act believed that the Act should be interpreted broadly

enough to protect absences from work that are necessary for the

purpose of having one's medical condition diagnosed and treated,

such as those at issue here. The agency did not interpret the

statutory language that Hodgens's health condition render him

"unable to perform" his work as requiring him to be "too sick to

work." The agency's interpretation is entitled to deference. SeeChevron, 467 U.S. at 843-44. We hold that Hodgens's absences from

work were protected by the FMLA if they were required for the

diagnosis and treatment of his medical condition, as long as he

satisfied the other requirements for "seriousness"; it is not

necessary that the medical condition make him "too sick to work" on

a particular day in order for an absence on that day to be covered

under the statute. We therefore reverse the district court's

holding to the extent that it stated a contrary view. The FMLA

protected Hodgens's absences whenever his health condition required

him to visit his physician rendering him unable to work during the

time it took to accomplish those visits.

We conclude that Hodgens would be entitled to survive

summary judgment if a rational trier of fact could find that at

least four consecutive days' worth of Hodgens's absences were

medically necessary and therefore rendered him "unable to perform"

his job, within the meaning of 29 U.S.C. 2612(a)(1)(D), for those

days. Because a rational juror could so find, we hold that at

least some of his leave was covered by the FMLA. Therefore the

district court erred to the extent that it predicated its grant of

summary judgment on the ground that there was no FMLA-qualifying

leave at issue.

B

Thus far, we have found that, at the summary judgment

stage, Hodgens has satisfied the first element of his prima facie

case, by availing himself of a protected right under the FMLA,

because at least some of the leave Hodgens took during 1993 and

1994 was FMLA-related. Nevertheless, GD argues that most of

Hodgens's absences were not in fact protected leave under the FMLA,

and that it was these non-FMLA absences that motivated it to

evaluate Hodgens unfavorably, plus the quality of his performance

relative to his peers.

This argument goes to the third element of Hodgens's

prima facie case: whether he has made a sufficient showing of a

causal connection between his taking FMLA-protected leave and GD's

decision to include him in its RIF and therefore to terminate his

employment.

GD admits that Hodgens's supervisor warned him that he

was taking "too much time off," and that this warning came shortly

after Hodgens had taken several days off for ear surgery. GD also

concedes that its evaluation of Hodgens one month later advised him

to "make every effort to have [his] absenteeism fall within company

guidelines." Additionally, during its April 1994 RIF, GD decided

which employees to lay off based on a ranking that considered

Hodgens's absentee rate, as well as his performance during prior

time periods and that performance was diminished in part due to

Hodgens's absences, some of which were FMLA-protected visits to Dr.

Wilkinson regarding his heart condition. This is sufficient to

make out a prima facie case that Hodgens's absences were at least

one factor in his low performance evaluation and hence in his

dismissal.

The prima facie burden is "quite easy to meet."

Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir. 1991);

see Burdine, 450 U.S. at 253. Therefore, for purposes of this

summary judgment motion where all inferences are drawn in

Hodgens's favor and in light of the relatively low threshold

showing necessary to establish a prima facie case, we conclude that

Hodgens has satisfied his burden as to the third element (causal

connection), as well as the other elements of his prima facie case.

IV

Having disposed of the challenge to the first step of the

McDonnell Douglas analysis (Hodgens's prima facie case), we turn

now to the remaining steps: whether General Dynamics articulated

a legitimate nondiscriminatory reason for terminating Hodgens's

employment, and, if so, whether Hodgens has demonstrated, at least

to the level of trialworthiness, that the reason was a pretext, and

that he was, in reality, discharged discriminatorily on the basis

of his having availed himself of a right protected by the Act,

namely, the right to take medically necessary leave time. We

conclude that Hodgens failed to demonstrate that a reasonable trier

of fact could find his inclusion in the RIF to be based on his

having taken FMLA leave.

A

Even though Hodgens has established a prima facie case of

retaliation, General Dynamics has articulated a legitimate

nondiscriminatory reason for terminating him.

GD stated that Hodgens was transferred out of program

planning and eventually to Module 82 for legitimate business

reasons, including a realignment of staff that resulted from

earlier RIFs, i.e., from RIFs that preceded Hodgens's taking any

FMLA-related medical leave. GD has shown that its April 1994 RIF

was legitimate and economically necessary. And GD has submitted

evidence that Hodgens's performance in Module 82 was below par, in

any event significantly lower than the performance of all similarly

situated Module 82 workers (project managers). For present

purposes, GD has sufficiently articulated a legitimate reason for

its adverse actions against Hodgens.

B

Hodgens cannot and does not claim that an employer cannot

transfer employees from one department to another or reduce the

overall size of its staff if there is a legitimate business reason

to do so. The FMLA certainly does not prevent such transfers or

RIFs. An employer is entitled to reduce and/or reorganize its

staff; efficiency is a legitimate goal. But an employer may not

use its RIF/reorganization/improved-efficiency rationale as a

pretext to mask actual discrimination or retaliation; the mere

incantation of the mantra of "efficiency" is not a talisman

insulating an employer from liability for invidious discrimination.

See McDonnell Douglas, 411 U.S. at 804 (employer may not use an

ostensibly legitimate reason for an adverse action as a pretext for

discrimination that is prohibited by statute); 29 U.S.C.

2615(a); 29 C.F.R. 825.220; cf. INS v. Chadha, 462 U.S. 919,

944 (1983): "Convenience and efficiency are not the primary

objectives or the hallmarks of democratic government." Nor are

they the objectives of public policy underlying statutes like the

FMLA or the ADA.

1

The competing considerations that underlie a pretext

analysis are especially problematical in a case like Hodgens's.

Under the McDonnell Douglas framework, in order to rebut the

presumption that arises upon the establishment of a prima facie

case, the employer need only produce enough competent evidence

which, if taken as true, would permit a rational factfinder to

conclude that the challenged employment action was taken for a

"legitimate, nondiscriminatory reason," Burdine, 450 U.S. at 254-

55; accord Hicks, 509 U.S. at 509; Ruiz v. Posadas de San Juan

Assocs., 124 F.3d 243, 248 (1st Cir. 1997). GD has accomplished

this here by offering the testimony of its decision-making

supervisors that GD discharged Hodgens because of his performance

and his non-FMLA absences, and that its decision ignored his FMLA-

protected absences.

At this point, Hodgens must demonstrate that there is a

trialworthy issue of pretext. If we were to permit GD's mere

assertion of a legitimate reason to discharge Hodgens to insulate

it against liability, then this employer could circumvent the anti-

discrimination provisions of the FMLA (and of other statutes)

simply by making a unilateral decision to transfer the employee

(Hodgens) to a new work station where he has low seniority and/or

is unable to perform the new job as well as others who have been in

that position for a longer time. That way, when a RIF occurs

(another decision made solely by the employer), Hodgens, as a

recent transferee, would be the low person on the totem pole,

whether the order of termination proceeds based upon seniority in

the position or upon the quality of performance to date. The

decision as to what basis to use in deciding who gets RIFed is, of

course, also a decision made unilaterally by the employer.

Because of the availability of seemingly neutral

rationales under which an employer can hide its discriminatory

intent, and because of the difficulty of accurately determining

whether an employer's motive is legitimate or is a pretext for

discrimination, there is reason to be concerned about the

possibility that an employer could manipulate its decisions to

purge employees it wanted to eliminate. See Weldon v. Kraft, Inc.,

896 F.2d 793, 798 (3d Cir. 1990) (Subjective evaluations of

performance "are more susceptible of abuse and more likely to mask

pretext" than objective job qualifications.) (internal quotation

marks omitted). The law does not permit this. Even if an

employer's actions and articulated reasons are facially neutral

(e.g., a RIF), if in reality the employer acted for a prohibited

reason (e.g., retaliation for exercising a protected right), then

its asserted legitimate reason for the RIF and its ostensibly

nondiscriminatory selection criteria as to who gets RIFed cannot

insulate it from liability. As Judge Posner wrote in the context

of ADA disability discrimination, "[a] RIF is not an open sesame to

discrimination against a disabled person. Even if the employer has

a compelling reason wholly unrelated to the disabilities of any of

its employees to reduce the size of its work force, this does not

entitle it to use the occasion as a convenient opportunity to get

rid of its disabled workers." Matthews v. Commonwealth Edison Co.,

128 F.3d 1194, 1195 (7th Cir. 1997) (citation omitted). Nor can it

be an opportunity to get rid of workers who exercise their FMLA

right to take medical leave for serious medical conditions. See 29

U.S.C. 2615(a).

This means that, where a plaintiff in a discrimination

case makes out a prima facie case and the issue becomes whether the

employer's stated nondiscriminatory reason is a pretext for

discrimination, courts must be "particularly cautious" about

granting the employer's motion for summary judgment. Stepanischenv. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.

1983). Of course, summary judgment is not "'automatically

preclude[d]'" even in cases where elusive concepts such as motive

or intent are at issue. See DeNovellis, 124 F.3d at 306 (quoting

Valles Velazquez v. Chardon, 736 F.2d 831, 833 (1st Cir. 1984)).

"[I]f the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation,"

summary judgment may be appropriate even where intent is an issue.

Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994)

(internal quotation marks omitted). Where, however, the nonmoving

party has produced more than that, trial courts "should 'use

restraint in granting summary judgment' where discriminatory animus

is in issue." DeNovellis, 124 F.3d at 306 (quoting Valles

Velazquez, 736 F.2d at 833); see Stepanischen, 722 F.2d at 928.

The role of the trial judge at the summary judgment stage "is not

. . . to weigh the evidence and determine the truth of the matter,

but to determine whether there is a genuine issue for trial."

Anderson, 477 U.S. at 249.

We recognize that courts in other circuits have addressed

similar FMLA claims and, "[g]ranting [the] plaintiff the benefit of

every favorable inference," have concluded that "the pattern of

actions taken by [the] defendant precludes summary judgment

concerning [the] defendant's motivation." Marx v. Schnuck Markets,

Inc., 76 F.3d 324, 329 (10th Cir.), cert. denied, 116 S. Ct. 2552

(1996) (finding a genuine issue of fact concerning retaliatory

intent when the pattern of conduct began soon after the filing of

a charge and later culminated in actual discharge); see Monica v.

Nalco Chemical Co., No. CIV.A. 96-1286, 1996 WL 736946, at *2 (E.D.

La. 1996) (The fact that one of six absences that employer used as

a basis for terminating plaintiff for excessive absenteeism was an

FMLA-covered absence creates genuine issue of material fact that

his discharge was in retaliation for the FMLA-covered leave.); cf.Victorelli, 128 F.3d at 187-88 (finding material issue of fact as

to whether plaintiff suffered from a serious health condition);

City of Fort Wayne, 117 F.3d 1022, 1027 (7th Cir. 1997) (same);

Rhoads v. FDIC, 956 F. Supp. 1239, 1256 (D. Md. 1997) (same). And

we have held likewise, in analogous contexts. For example, in

Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 27-28 (1st Cir.

1991) (en banc), we held that the record did not contain a

sufficient showing on the movant's part to permit judgment as a

matter of law. We determined that the movant (university) had to

demonstrate that its decision to dismiss the plaintiff (student)

"was a reasoned, professional . . . judgment, not a mere ipse

dixit." Id. at 27. As a result, we "set aside the summary

judgment and remand[ed] th[e] issue for further proceedings." Id.at 28; see Rossy v. Roche Prods., 880 F.2d 621, 626 (1st Cir. 1989)

("All of [the employer's] explanations may in fact be accurate, but

they must be decided after trial, especially in cases such as this

where [the employer's] intent is the central issue."). In those

cases, the courts have left it to the trier of fact to assess

whether the evidence supported the legitimacy of the employer's

stated reason or the employee's allegation of pretext.

Of course, those decisions, like all decisions to affirm

or reverse grants of summary judgment, were fact-based. In each

case, the issue was a factual question of motivation: could a

reasonable jury find that the adverse action was taken because of

the employee's protected conduct rather than because of other

nondiscriminatory reasons?

The nonmoving plaintiff may demonstrate pretext either

indirectly by showing that the employer's stated reasons for its

adverse action were not credible, or directly by showing that that

action was more likely motivated by a discriminatory reason. SeeBurdine, 450 U.S. at 256. Thus, one way an employee may succeed is

to show "such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence and [with or

without additional evidence and inferences properly drawn

therefrom] infer that the employer did not act for the asserted

non-discriminatory reasons." Hilti, Inc., 108 F.3d at 1323

(internal quotation marks omitted); Weldon, 896 F.2d at 798 (courts

should be sensitive to myriad of ways such an inference can be

created).

In addition, close temporal proximity between two events

may give rise to an inference of causal connection. Thus,

"protected conduct closely followed by adverse action may justify

an inference of retaliatory motive." Marx, 76 F.3d at 329; seeOliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988)

("A showing of discharge soon after the employee engages in an

activity specifically protected by . . . Title VII . . . is

indirect proof of a causal connection between the firing and the

activity because it is strongly suggestive of retaliation.");

Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986)

(finding retaliatory pretext based, inter alia, upon employer's

having discharged employee less than one month after her filing a

discrimination charge); cf. Hilti, Inc., 108 F.3d at 1325 ("Morgan

has established a prima facie case of FMLA retaliation, in that

Hilti sent her a letter of discipline concerning attendance

problems on the day she returned from the leave.").

In assessing discriminatory motive, a court may also

consider other factors, including "among other things, 'the

historical background of the . . . decision'; '[t]he specific

sequence of events leading up to the challenged decision';

'[d]epartures from the normal procedural sequence'; . . . '[any]

contemporary statements by members of the decisionmaking body,'"

Reno v. Bossier Parish Sch. Bd., 117 S. Ct. 1491, 1503 (1997)

(quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429

U.S. 252, 267-68 (1977) (alterations in Reno)); United States v.

Yonkers Bd. of Educ., 837 F.2d 1181, 1221 (2d Cir. 1987), and

"[s]ubstantive departures . . . , particularly if the factors

usually considered important by the decisionmaker strongly favor a

decision contrary to the one reached," Arlington Heights, 429 U.S.

at 267-68; Yonkers Bd. of Educ., 837 F.2d at 1221. In addition,

"doubts about the fairness" of an employer's decision or an

employer's "'misjudg[ing]'" of an employee's qualifications, while

not necessarily dispositive, "'may be probative of whether the

employer's reasons are pretexts for discrimination.'" Ezold v.

Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)

(quoting Burdine, 450 U.S. at 259).

2

Applying these principles, we must determine whether

there is sufficient evidence favoring Hodgens for "a fair-minded

jury [to] return a verdict in his favor," Anderson, 477 U.S. at

252, i.e., for a jury to conclude that Hodgens's discharge was

motivated by retaliation for his having availed himself of a right

protected by the FMLA, namely, the right to take medically

necessary leave time. We have already examined, in a different

context, GD's stated reasons for discharging Hodgens. In Part

III(B), supra, we determined that Hodgens had produced sufficient

evidence to satisfy the low threshold required to meet the third

prong of his prima facie case, i.e., that there was a causal

connection between his protected medical leave and his losing his

job. Because GD has met Hodgens's prima facie case by articulating

its facially nondiscriminatory reasons for terminating him, we must

now examine whether Hodgens has produced sufficient evidence for a

rational jury to conclude that those reasons were a pretext for

discrimination.

Based on the record here, a rational jury could not reach

such a conclusion. It is undisputed that a number of Hodgens's

problems on the job took place long before he took his first

medical leave. For example, in 1985, in a previous RIF, GD closed

down Hodgens's prior work site in Quincy altogether. Hodgens was

out of work for three years as a result. After he was re-hired at

the Quonset Point facility and doing well for three years, the

program planning function in which he was excelling was eliminated

in 1991, resulting in his reassignment to production control. This

was still two years before the onset of the medical conditions at

issue in the present case, June 1993. For the year beginning

March 1, 1991, Hodgens's performance was ranked eighth out of ten

employees in his peer group, and the two employees who ranked

behind him were laid off that year as part of another RIF. In the

year beginning March 1, 1992, Hodgens ranked seventh of eleven in

his rank group. Hodgens's poor performance in the two years

preceding his illness was a source of great concern to him,

particularly as it related to the possibility that he might become

the next casualty of GD's efficiency-related RIFs.

Shortly before the first relevant manifestation of his

heart problems, Hodgens was reassigned to work in Module 82, where

his performance problems became even worse. He worked on Module 82

between April and early August 1993. Thus, even without parsing

the competing evidence as to which portions of Hodgens's poor

performance on Module 82 were related or unrelated to the absences

caused by his HBP and his potential heart condition, we note that

all of the foregoing events putting Hodgens in an extremely

unfavorable position at work occurred prior to his taking any

FMLA-protected medical leave. This is obvious with respect to the

period prior to his being assigned to Module 82; and it also

applies to his poor performance in Module 82 between April and

August 1993, which preceded his FMLA-protected leave. So none of

these events could have been motivated by Hodgens's having taken

FMLA-protected leave.

Further, Hodgens failed to submit any evidence, direct or

circumstantial, that General Dynamics's well-justified and

documented decision to lay off more workers in April 1994 was a

mere pretext for retaliation against Hodgens for exercising his

right to take medical leave. On the contrary, the RIF itself seems

real enough and the legitimate business need for it remains

unshaken. There were RIFs before Hodgens became ill, and there is

no evidence that there was anything pretextual about GD's general

business strategy of reducing its work force in order to maintain

its profit levels.

Nevertheless, while the RIF as a whole appears

legitimate, there remains the question of whether GD's selection of

Hodgens in particular to be laid off was based in any way upon his

having exercised his FMLA right to take necessary medical leave.

GD presented evidence that Hodgens's ranking for the year beginning

March 1, 1993 (including the period of his Module 82 position as

well as the period of his FMLA-protected absences, plus less than

one month in the machine shop to which he half-heartedly argues he

would not have been assigned if he had not taken FMLA leave) was

based on a comparison with those senior planners having similar

duties, and that he ranked lowest among his peers in terms of

performance. Hodgens himself told his doctor that he was

experiencing pressure at work because of a "decrease in performance

because of inexperience in [his] present job."

In order to overcome the weight of these facts, Hodgens

offered the following evidence to dispute the legitimacy of GD's

rationale for including him in the layoff, i.e., to show that it

was a mere pretext: (1) shortly after he returned from a

significant amount of FMLA-protected medical leave, his supervisor

told him he should do something to reduce his "excessive absences";

(2) his evaluation contained the statement, "Make every effort to

have your absenteeism fall within the company guidelines"; (3) his

termination was based on the low performance evaluation which he

received shortly after returning from his protected medical leave,

and this temporal proximity bespeaks a retaliatory intent; and

(4) a memorandum, entitled "Justification Regarding Drop in Rank

Position," specifically acknowledged that his absentee rate was a

factor in his low performance rating and therefore in his

termination. Thus, in the language of Arlington Heights, Hodgens

contends that the "specific sequence of events" leading up to his

termination, coupled with the contemporary statements by his

supervisor (written and oral) warning him about his "excessive

absences," constitute proof that GD's decision to terminate him was

motivated by his having availed himself of FMLA-protected medical

leave. Arlington Heights, 429 U.S. at 267-68. We will discuss

these facts seriatim although, in evaluating their sufficiency to

withstand summary judgment, we must consider them in combination,

not each standing alone.

As noted supra, close temporal proximity between two

events may give rise to an inference of causal connection.

Therefore, "it may be significant that [Hodgens's termination, and

the warning that preceded it, occurred] shortly after his having

taken FMLA leave." Williams v. Shenango, Inc., 986 F. Supp. 309,

322 (W.D. Pa. 1997) (denying summary judgment to employer because

a reasonable factfinder could find employer's articulated reasons

for suspending and terminating employee to be pretexts for

discrimination based on having taken FMLA leave); see Marx, 76 F.3d

at 329 (same).

While Hodgens is correct that temporal proximity may give

rise to a "suggest[ion] of retaliation," Oliver, 846 F.2d at 110,

that "suggest[ion]" is not necessarily conclusive. We must

remember that it is the employee's burden to show pretext,

sufficient to survive summary judgment. This is a question of

fact, the resolution of which is usually left to the trier of fact.

Here, the circumstantial fact of temporal proximity is

weakened considerably by the history of GD's prior non-

discriminatory RIFs and of Hodgens's poor work performance. To

strengthen his case, Hodgens has produced evidence that his

supervisor specifically referred to his "excessive absences" and

his termination was based on an evaluation and justification memo

reflecting the same concern. According to Hodgens, these

contemporaneous statements by the decision-making authority (or its

agent) demonstrate persuasively that GD's decision to rank him at

the bottom of his peer group and to choose him as the employee from

that group to lay off in the 1994 RIF were motivated by retaliatory

animus. The inference is strengthened by the fact that Hodgens had

a good work history for three of the five years since he was

rehired by GD at Quonset Point and for twenty years previously in

Quincy. On the other hand, the inference is weakened by his

performance problems over the two years prior to his taking FMLA-

protected medical leave, although it must be remembered that

Hodgens survived the earlier RIFs, even if only by the skin of his

teeth.

Statements by supervisors carrying the inference that the

supervisor harbored animus against protected classes of people or

conduct are clearly probative of pretext, Kelley v. Airborne

Freight Corp., F.3d , , 1998 WL 150958, at *10-*11 (1st

Cir. April 7, 1998) (Remark that it would be a good time "to get

rid of some of the older mediocre managers" had a "direct bearing

on age discrimination."); EEOC v. G-K-G, Inc., 39 F.3d 740, 746

(7th Cir. 1994) (Comment by supervisor that the plaintiff's

"accounts could use some younger blood" constituted sufficient

direct evidence of discriminatory intent.); Lindahl v. Air France,

930 F.2d 1434, 1439 (9th Cir. 1991) (Sexist comments reflecting the

supervisor's stereotypical images of men and women raised a genuine

issue of fact with respect to pretext.); Morgan v. Arkansas-

Gazette, 897 F.2d 945, 951 (8th Cir. 1990) (City circulation

manager's statements that the plaintiff was "an old fuddy-duddy"

constituted direct evidence that the defendant's reason for

discharging the plaintiff was a pretext for age discrimination.),

even if that inference is not the only one that could be drawn from

the comment, Binder v. Long Island Lighting Co., 933 F.2d 187, 192-

93 (2d Cir. 1991) (Statement that plaintiff was overqualified for

position raised an issue of material fact with regard to pretext in

an age discrimination case.).

GD argues that the statements by Hodgens's supervisor are

not as damning as Hodgens would have us believe: they refer only

to his "excessive absences," and GD has offered evidence that a

great many of Hodgens's absences were not FMLA-protected. Cf.Hilti, Inc., 108 F.3d at 1322, 1324-25 (finding no genuine issue

regarding pretext where employee had a long history of excessive

absenteeism over the years, about which she had received several

warnings well before she took any FMLA-protected leave). According

to GD, the supervisor was primarily referring to non-protected

absences, rendering these statements a great deal less than a

"smoking gun."

Hodgens disputes the merits of GD's attempt to parse his

absences into FMLA-protected and non-FMLA-protected. He argues

that it was not unreasonable for him to remain absent from work for

medical reasons during the entire period that he did, because

during this time his physician performed diagnostic tests in an

effort to determine how serious his medical condition was and, if

indeed it was heart-related, whether it would be safe for him to

return to work before it was brought under control. Dr. Wilkinson

was "most concerned" that his symptoms and history could indicate

that he was suffering from angina, which she was never able to rule

out during the entire period of nearly two months that Hodgens was

out of work. If he was suffering from angina, then any stress,

including work, would increase the chance that he could have a

heart attack. Similarly, his atrial fibrillation, if not treated

properly, could lead to a stroke.

The problem that Hodgens cannot overcome is that, while

Dr. Wilkinson may indeed have been concerned about his condition,

she did not tell him that his medical condition required him to

stay home from work from August 4 through September 21, 1993. To

the contrary, while she thought it was "reasonable" for Hodgens to

want to stay home from work pending the outcome of his tests, she

in fact recommended that he return to work despite his medical

condition and its potential risks. As GD notes, Hodgens could, for

example, have kept any given medical appointment in the morning,

and then come back to work for the remainder of the day, which he

did do on some occasions but not on others. Thus, apart from the

period from September 22-27, while Hodgens's medical condition

clearly did require him to be absent from work during the times

necessary for his medical visits, it did not require the vast

majority of his absences during August and September. The

remainder of his absences between August 4 and September 21 as well

as after September 27 were therefore not protected by the FMLA,

i.e., the time that was not actually necessary for him to attend

medical appointments related to his heart condition. GD was not

precluded from taking those unprotected absences into account in

evaluating Hodgens's performance and in determining whether to

include Hodgens in the RIF.

The question of summary judgment here is a close one

because both GD and Hodgens have presented probative evidence

tending to support their respective versions of the facts, on the

question whether GD's reason for discharging Hodgens was legitimate

or merely a pretext to retaliate against him for taking FMLA-

protected medical leave. The weighing of such alternative factual

scenarios would ordinarily be left to the finder of fact after

trial. But on this record, the weight of the evidence does not

"present[] a sufficient disagreement to require submission to a

jury"; it is "so one-sided that one party must prevail as a matter

of law." Anderson, 477 U.S. at 251-52. No rational factfinder

could reasonably conclude that GD terminated Hodgens in retaliation

for exercising his rights under the statute: the vast majority of

Hodgens's absences were not FMLA-protected; overwhelming evidence

demonstrated his poor performance, during two full years prior to

his protected medical leave plus during the portion of the 1993-94

evaluation year that preceded his medical leave; and the evidence

Hodgens offered was simply insufficient to outweigh the foregoing,

such that a factfinder could infer pretext. Because "a fair-minded

jury could [not] return a verdict for [Hodgens] on the evidence

presented," Anderson, 477 U.S. at 252, we affirm the grant of

summary judgment on the FMLA claim.

V

Hodgens also makes a claim under the ADA. We affirm the

district court's grant of summary judgment on the ADA claim on the

same basis that we affirm on the FMLA claim. Hodgens never

demonstrated, to the level of sufficiency required on a motion for

summary judgment, that GD's stated reason for terminating him a

RIF based on his performance was a pretext for his asserted

disability. Hodgens has certainly not made any more persuasive a

demonstration that his layoff was a pretext for discrimination

based on his disability than he did to show that it was a pretext

for retaliation based on his having taken FMLA leave.

Therefore, his ADA claim must fail, and the grant of

summary judgment to General Dynamics must be affirmed, albeit on a

different basis than that relied upon by the district court. We

will affirm a correct result reached by the court below "on any

independently sufficient ground made manifest by the record."

Palmacci v. Umpierrez, 121 F.3d 781, 792 (1st Cir. 1997); AIDS

Action Comm. of Mass. v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994)

(internal quotation marks omitted). We need not decide whether the

district court was correct in holding that certain of Hodgens's

medical conditions (HBP and atrial fibrillation) did not constitute

a disability within the meaning of the ADA, and in particular,

whether deciding that issue should proceed with or without

consideration of Hodgens's ameliorative medications. See Arnold,

136 F.3d 854.

The grant of summary judgment to General Dynamics is

Affirmed. No costs to either party.