                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No. 02-40639
                           Summary Calendar


                                SONYA SOSA,

                                                      Plaintiff-Appellant,


                                   VERSUS


       COASTAL CORP; COASTAL MART INC; COASTAL MARKETS LTD,

                                                      Defendants-Appellees.




           Appeal from the United States District Court
                For the Southern District of Texas
                                (V-00-CV-17)
                          December 16, 2002




Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

      Sonya Sosa appeals the district court’s grant of summary

judgment to her former employer, Coastal Markets, Ltd., and two

related   entities,   Coastal    Mart,   Inc.   and    Coastal   Corporation



  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                     1
(collectively   “Coastal”),   dismissing   her   claim    that    Coastal

discharged her for attempting to use the Family and Medical Leave

Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.      We AFFIRM.

                                 I.

     Coastal operates a chain of convenience stores.         Sosa began

working at Coastal store number 3343 in Victoria, Texas, in October

1998.   She received several bonuses in 1999.     In September 1999,

Margie Androsky, Coastal’s area sales manager, promoted her to the

position of manager of Coastal store number 3342.

     On November 9, 1999, Sosa injured her knee on the job.            On

November 12, 1999, a tumor was discovered in her right femur.         She

continued to work despite her medical problems.      On December 14,

1999, one of Sosa’s treating physicians recommended she seek

evaluation and treatment at the MD Anderson Cancer Treatment Center

in Houston, Texas. When Sosa made the appointment, she was advised

that she might need to stay up to five days for treatment if the

tumor proved to be cancerous.      Sosa testified by affidavit that

“her supervisors were aware that [her] scheduled treatment at MD

Anderson would require [her] to be a way [sic] from work for up to

five days and they had planned accordingly by scheduling another

manager to work in [her] place.”

     Sosa’s last day of work was on December 26, 1999.           The next

day, she traveled to Houston for her appointment.        In Houston, she

learned that the tumor was not cancerous.    She testified that she



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“was advised by [her] treating physician, Dr. Weber, that if [her]

leg was still hurting, to stay off it and rest the leg for three

days.”   Sosa returned home the same day, December 27, 1999.

      On December 28, 1999, Androsky learned of Sosa’s diagnosis.

She telephoned Sosa to inform her that her replacement could not

work for her the next day, December 29, 1999.              Androsky told Sosa

she would need to “open” the store.1           Sosa replied that she could

not   work   because   she   was   in   pain   and   had    another   doctor’s

appointment on December 29, 1999.           At her deposition, Sosa said

that Androsky then “told [her she] needed to find [her] assistant

to come in if [she] couldn’t.”          Sosa responded by saying she “was

out on a medical leave, and that it was [Androsky’s] responsibility

to take care of it.”     The women’s conversation deteriorated into a

shouting match, and one or the other hung up.                Sosa admits she

spoke to her assistant manager on the evening of December 28, 1999,

after her conversation with Androsky but did not ask her to open

the store the next morning.

      On December 29, 1999, no one opened store number 3342.             Sosa

called Androsky at about 7:30 a.m. to ask why no one had opened the

store.   Androsky then called her superiors, from whom she received

permission to fire Sosa.      In the meantime, Sosa went to the store

and began the opening process.       Androsky then went to the store and


  1
    Because the convenience stores are open twenty-four hours a
day, opening the store involves daily paperwork and deposits.
Opening takes place about 6:00 a.m. each day.

                                        3
discharged Sosa.

      After her discharge, Sosa requested an internal investigation.

The   investigation   found    no   cause     to   reverse    the   termination

decision.     Sosa    then    filed    this    lawsuit,      alleging   Coastal

discharged her for attempting to use FMLA leave and for interfering

with her rights under the FMLA.        She also stated a claim under the

Consolidated Omnibus Reconciliation Act, 29 U.S.C. § 1161 et seq.,

as well as state law claims.           Coastal and Sosa filed opposing

motions for summary judgment. The district court granted Coastal’s

motion but denied Sosa’s.      Sosa now appeals the FMLA portion of the

district court’s decision.

                                      II.

      We review a grant of summary judgment de novo.                Chaffin v.

John H. Carter Co., 179 F.3d 316, 318 (5th Cir. 1999).                  Summary

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

interrogatories and admissions on file, together with affidavits,

if any, show that there is no genuine dispute as to any material

fact and that the moving      party is entitled to judgment as a matter

of law.”    Id. at 318-19.          In assessing the summary judgment

evidence, we must review all the evidence in the record, draw all

reasonable inferences in favor of the nonmoving party, and make no

credibility determinations or weigh the evidence.                    Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133,               150 (2000).

                                      III.


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     Under the FMLA, an eligible employee is entitled to a total of

twelve weeks 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).   After a qualifying absence, the employer must

restore the employee to the same position or a comparable position.

29 U.S.C. § 2614(a)(1).

     When direct evidence is lacking, the familiar McDonnell-

Douglas burden-shifting framework applies to a claim that an

employee was penalized for exercising rights guaranteed by the

FMLA:

     The three-part burden-shifting scheme places the onus on
     the plaintiff alleging retaliatory discharge to establish
     a prima facie case of discrimination by demonstrating
     that: (1) she engaged in a protected activity; (2) the
     employer discharged her; and (3) there is a causal
     connection between the protected activity and the
     discharge.   Once the plaintiff makes this preliminary
     showing, the employer must articulate a legitimate,
     nondiscriminatory reason for the plaintiff's termination.
     If the employer carries this burden of production, the
     presumption raised by the prima facie case is rebutted.
     To defeat summary judgment, the plaintiff must produce
     substantial probative evidence that the proffered reason
     was not the true reason for the employment decision and
     that the real reason was the plaintiff’s participation in
     the protected activity.

Chaffin, 179 F.3d at 319-20.

     The parties discuss only Sosa’s ability to show the first

element of the required prima facie case.    To satisfy the first

element, Sosa must show that she suffered from a serious health

condition that made her unable to perform the functions of her

                                5
position.   See 29 U.S.C. § 2612(a)(1)(D); see also Frazier v. Iowa

Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir. 2000) (holding

that “an inablity to perform one’s job is a requisite element of a

FMLA claim”).   The FMLA defines “serious health condition” as “an

illness, injury, impairment, or physical or mental condition that

involves . . . continuing treatment by a health care provider.”

Id. § 2611(11), cited in Seaman v. CSPH, Inc., 179 F.3d 297, 302

(5th Cir. 1999).    The “incapacity” part of the requirement is

explained in regulations promulgated by the Department of Labor:

     (a) For purposes of FMLA, “serious health condition”
     entitling an employee to FMLA leave means an illness,
     injury, impairment, or physical or mental condition that
     involves: . . . (2) Continuing treatment by a health care
     provider.     A serious health condition involving
     continuing treatment by a health care provider includes
     . . . : (iii) Any period of incapacity or treatment for
     such incapacity due to a chronic serious health
     condition. A chronic serious health condition is one
     which: (A) Requires periodic visits for treatment by a
     health care provider, or by a nurse or physician's
     assistant under direct supervision of a health care
     provider; (B) Continues over an extended period of time
     (including recurring episodes of a single underlying
     condition); and (C) May cause episodic rather than a
     continuing period of incapacity (e.g., asthma, diabetes,
     epilepsy, etc.).

29 C.F.R. § 825.114(a)(2)(iii). Hence, an employee is protected by

the FMLA for any period of incapacity or treatment for such

incapacity due to a chronic serious health condition.

     There is no serious question that Sosa had a tumor in her leg.

Rather, the question is whether Sosa was incapacitated on the

morning of December 29, 1999, when she was discharged.     To this


                                 6
end,    Sosa   offers   as   evidence   that    she   was   incapacitated    or

otherwise unable to work her testimony that she was in pain; that

Dr. Weber had advised her to stay off her leg if it was hurting;

and that she had a doctor’s appointment some time on December 29,

1999.

       Sosa’s statement that she could not work because she was in

pain    is   incompetent     summary   judgment   evidence    because   it   is

unsubstantiated and conclusory. See Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994).            Likewise, Sosa’s report of Dr.

Weber’s order to stay off her leg is inadmissible hearsay.                   See

Murray v. Red Kap Indus., Inc., 124 F.3d 695, 698 (5th Cir. 1997).

This leaves only Sosa’s evidence of her doctor’s appointment on

December 29, 1999.      It is not clear from the record exactly when

the doctor’s appointment was scheduled.           Sosa states she attended

the appointment after she was discharged, which suggests the

appointment was later in the day. Still, drawing the inferences in

Sosa’s favor, there is an issue of fact as to whether Sosa’s

appointment on December 29, 1999, prevented her from opening the

store that morning.

       In its brief, Coastal states that it terminated Sosa because

of insubordination—she failed to comply with Androsky’s order that

she either open the store herself on December 29, 1999, or arrange

for the assistant manager to open the store.                Assuming Sosa was

incapacitated on December 29, 1999, due to a doctor’s appointment,


                                        7
Coastal could not terminate her for failing to open the store

herself.     But Sosa’s incapacity on December 29, 1999, did not

prevent her from calling her assistant the day before to instruct

her to open the store.       Her refusal to call her assistant was

insubordination, which is a legitimate nondiscriminatory reason for

termination.    See Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir.

2001) (“The failure of a subordinate to follow a direct order of a

supervisor is a legitimate nondiscriminatory reason for taking

adverse    employment   action.”).        Hence,   Coastal   has   offered   a

legitimate nondiscriminatory reason for its action.

      Sosa has offered no evidence showing Coastal’s insubordination

explanation was false, let alone pretextual.           Sosa rightly argues

that Coastal could not base its decision on her failure to report

for work as long as she made out a prima facie case of FMLA

coverage.    But this argument does not extend to her failure to

instruct her assistant manager to open the store in her place.           She

does not deny that Androsky ordered her in the alternative to

arrange for the assistant manager to open the store on December 29,

1999.2

                                     IV.

      Because Sosa has failed to demonstrate Coastal’s reason for

  2
    Given our disposition of this case, we need not address Sosa’s
additional arguments about whether expert medical evidence was
required to prove her serious medical condition or whether Coastal
was obligated either to honor her request for FMLA leave or to
implement the statutory procedures for determining whether the
leave was warranted.

                                      8
her termination was pretextual, the district court did not err in

granting summary judgment to Coastal and dismissing her claims. We

therefore AFFIRM.




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