
OPINION
No. 04-03-00117-CV

Barbara HORELICA,

Appellant

v.

FISERV SOLUTIONS, INC.,

Appellee

From the 151st Judicial District Court, Harris County, Texas

Trial Court No. 01-27587

Honorable Caroline Baker, Judge Presiding

Opinion by:	Paul W. Green, Justice
Sitting:	Catherine Stone, Justice
		Paul W. Green, Justice
		Karen Angelini, Justice
Delivered and Filed:   October 8, 2003	
AFFIRMED
	This appeal arises from a discrimination in employment case brought pursuant to the
Family & Medical Leave Act of 1993 (FMLA).  29 U.S.C. § 2601, et seq. (1993). Appellant
Barbara Horelica took a leave of absence from her place of employment on May 26, 2000,
allegedly under the FMLA.  Her employment was terminated on June 8, 2000, and she
subsequently filed suit against her employer, appellee Fiserv Solutions, Inc. (Fiserv) on May
30, 2001.  Fiserv filed a motion for summary judgment which was granted by the trial court on
November 18, 2002.  Horelica now appeals the summary judgment in a single issue.
BACKGROUND
	 Appellant Barbara Horelica visited the offices of podiatrist Jonathan Hyman on April
5, 1999, complaining of pain in her feet.  Dr. Hyman advised Horelica that in order to correct
the pain, she would have to undergo surgery.  At that time, Horelica decided to forego the
surgery in favor of medication.
	On May 5, 2000, Horelica was called into a meeting with her immediate supervisor,
Scott Simmons, and Fiserv's Southwest Region Human Resources Manager, Laurie Coward,
to discuss problems with tardiness and absenteeism.  At this time, Horelica met with Coward
separately to discuss some "medical conditions that [she] needed to take care of."  Although
Horelica mentioned her health issues, she did not give Coward any details about her condition
when asked.  She did not tell Coward she was, specifically, having problems with her feet or
that she was planning to have any kind of surgical procedure in the near future.  In addition,
Horelica did not tell Coward the amount of time she needed to be gone from work in order to
deal with her medical problems.  Coward mentioned the possibility of Horelica taking time off
under the FMLA should she need to take an extended leave because of her medical conditions. (1)
	On May 8, 2000, Horelica, suffering increased pain in her feet, returned to Dr. Hyman
and further discussed her options for treatment.  Again, Hyman recommended surgery. This
time Horelica agreed, scheduling the surgery for May 26, 2000. (2)  Dr. Hyman told Horelica she
would need to be off of work for six weeks.  On May 25, 2000, the day before the surgery was
to take place, Horelica spoke with Coward by phone and informed her that she was going to
have a medical procedure on the 26th and would not be in to work that day.  Horelica did not
discuss the length of time she would need to be away from work.  Neither did she explain the
nature of her condition or the treatment she was to receive. (3)  Horelica also spoke with Senior
Vice President Billy Fontaine on the 25th, informing him she would be off Friday and the
following Monday.
	On Friday, May 26, 2000, Horelica underwent surgery on her feet.  In spite of the
conversations she had previously had with Coward and other office managers, Horelica never
submitted a written request for leave.  The procedure was successful, and she began recovery
the next day.  Monday, May 29, 2000, was a holiday.  On Tuesday, May 30, 2000, Horelica had
a scheduled vacation day.  On the next day, Wednesday, Horelica called Fiserv "several times"
and each time reached Scott Simmons' voice mail.  She also spoke with a receptionist.  When
she failed to speak personally with Simmons, Horelica left a voice mail, asking him to return
her call. (4)  She did not call anyone else at Fiserv.  Neither did she attempt to contact anyone at
work on either that Thursday or Friday.
	On Friday, June 2, 2000, Horelica had a follow up doctor's appointment.  It was at this
appointment that she gave the FMLA papers to Dr. Hyman to complete and send to Fiserv.  She
did not call into work at all the following week.  Horelica's employment with Fiserv was
terminated on Thursday, June 8, 2000 for "job abandonment."  Dr. Hyman faxed the FMLA
papers to the Fiserv office on the next day.
	Horelica subsequently filed suit against Fiserv, claiming retaliation and employment
discrimination against her for using FMLA leave.  Fiserv filed a motion for summary judgment,
asserting that Horelica failed to make a prima facie showing of retaliation.  The trial court
granted Fiserv's motion.  Horelica now appeals in a single issue.
STANDARD OF REVIEW
 The standard for reviewing a summary judgment under Texas Rule of Civil Procedure
166a(c) is whether the successful movant at the trial level carried its burden of showing that
there is no genuine issue of material fact and that judgment should be granted as a matter of
law.  KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748
(Tex. 1999); Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  A movant
is entitled to summary judgment if the evidence disproves as a matter of law at least one
element of each of the plaintiff's causes of action.  See Lear Siegler, Inc. v. Perez, 819
S.W.2d 470, 471 (Tex. 1991).  We view the evidence and its reasonable inferences in the light
most favorable to the nonmovant.  KPMG Peat Marwick, 988 S.W.2d at 748; Great Am.
Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). 
SUMMARY JUDGMENT Family & Medical Leave Act 
 We apply the McDonnell Douglas burden-shifting framework to retaliation claims
brought under the FMLA.  Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 768 (5th
Cir. 2001); see Sibley v. Kaiser Foundation Health Plan of Texas, 998 S.W.2d 399, 402
(Tex. App.--Texarkana 1999, no pet.)  To make a prima facie showing of retaliation under the
FMLA, a plaintiff must show: (1) she was protected under the FMLA; (2) she suffered an
adverse employment decision; and either (3a) she was treated less favorably than an employee
who had not requested leave under the FMLA; or (3b) the adverse decision was made because
she took FMLA leave.  Hunt, 277 F.3d at 768.  Applying these elements to the instant case, an
order granting the defendants' motion for summary judgment would be proper if Fiserv
disproved as a matter of law one of these essential elements.  Tex. R. Civ. P. 166a.
	Should the plaintiff succeed in making the prima facie case, the burden of production,
rather than persuasion, shifts to the defendant to articulate a legitimate nondiscriminatory or
nonretaliatory reason for its employment action.  Hunt, 277 F.3d at 768.  If the defendant
meets its burden, the plaintiff must show by a preponderance of the evidence that the
defendant's reason is a pretext for retaliation.  Id. 
	Section 2612 of the FMLA discusses the requirements necessary for an employee to
take leave under the act.  In general, an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12 month period because 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 FMLA also requires that notice be given the employer when such leave is
foreseeable. 29 U.S.C. § 2612(e).  The employee must make a reasonable effort to schedule
the treatment so as not to disrupt unduly the operations of the employer.  29 U.S.C.
§ 2612(e)(2)(A).  In addition, the employee shall provide the employer with not less than 30
days' notice before the date the leave is to begin if the need for the leave is foreseeable and
based on planned medical treatment for a serious health condition. 29 U.S.C. § 2612(e)(2)(B);
29 C.F.R. 825.302(a)(2002).  If 30 days' notice is not feasible, such as because of a lack of
knowledge of approximately when leave will be required to begin, a change in circumstance,
or a medical emergency,  the employee shall provide such notice as is practicable.  29 U.S.C.
§ 2612(e)(2)(B); 29 C.F.R. 825.302(a).  Under the Code of Federal Regulations "as soon as
practicable" means as soon as both possible and practical, taking into account all of the facts
and circumstances in the individual case.  29 C.F.R. 825.302(b).  For foreseeable leave, this
would ordinarily mean at least verbal notification to the employer within one or two business
days of when the need for leave becomes known to the employee.  Id.  Although the employee
need not specifically assert rights under the FMLA, she should provide notice sufficient to
make the employer aware that (1) the employee needs FMLA-qualifying leave and (2) the
anticipated timing and duration of the leave.  29 C.F.R. 825.302(c).
B.  Application: Prima Facie Case and the Notice Requirements of the FMLA
	On appeal, Horelica claims the trial court erred in granting the motion for summary
judgment because she raised several genuine issues of material fact, the first of which is the
adequacy of her notice of leave.  In its motion for summary judgment and in its brief, Fiserv
argues that Horelica fails to make a prima facie case regarding discrimination/ retaliation
under the FMLA.  Specifically, Fiserv argues that Horelica failed to provide the requisite
notice under the statute, thus negating her status as a member of the group protected by the
FMLA.   
	The record shows that Horelica knew of the need for surgery no later than May 8, 2000,
and that she scheduled the surgery shortly thereafter.  The record also shows that Horelica
knew at least one week before May 26, 2000, that she was to have surgery on that day.
However, she failed to inform anyone at Fiserv of the surgery until May 25, 2000.  This is not
"within one or two business days of when the need for leave became known to [her]."  This is
not, therefore, sufficient notice under the requirements of the FMLA.  See 29 U.S.C. §
2612(e)(2)(B); 29 C.F.R. 825.302(a), 825.302(b).
	In addition, Horelica did not indicate that the medical procedure was because of a
serious health condition that would render her unable to perform her duties at work.  See 29
U.S.C. § 2612(a)(1)(D).  Even if her May 5th conversation with Coward satisfies this
requirement, Horelica failed to inform Fiserv of the timing and duration of her leave, telling
them, at most, only that she would be out until the Wednesday following her procedure when,
instead, she was absent from work for two weeks.  See 29 C.F.R. 825.302(c). Horelica's
actions fail to meet either the 30-day notice requirement or the "as soon as practicable" notice
requirement of the FMLA.  See 29 U.S.C. § 2612(e)(2)(B); 29 C.F.R. 825.302(a).
	Because Horelica failed to meet all the requisite elements of the FMLA, she has failed
to  show that she was protected under the act.  This, in turn, results in a failure to make a prima
facie showing of retaliation as prescribed under the FMLA and the McDonnell Douglas
analysis.  Becuse Horelica did not raise a genuine issue of material fact as to this issue, the
trial court did not err in granting Fiserv's motion for summary judgment.
	We overrule Horelica's sole issue and affirm the judgment of the trial court.

Paul W. Green, Justice


1.   Coward provided Horelica with two separate sets of FMLA papers after Horelica informed her she may need
to take time off because of medical issues.  She gave her the first set of papers shortly after the May 5th meeting.  She
faxed the second set to Horelica and called to inquire as to Horelica's health on May 24th or 25th, the day that Horelica
told her for the first time about the procedure.
2.   In her deposition, Horelica claimed to have made the appointment for surgery either on May 8, 2000, or shortly
thereafter.  She testified that she did not remember exactly when she scheduled the surgery, but she knew about the
procedure at least one week in advance.
3.   Horelica also testified that she had spoken with Scott Simmons following the May 5th meeting and informed
him of her need to have a medical procedure.  She claims he told her to "work it out with Laurie or get the paperwork from
Laurie."  Horelica did not mention to Simmons the duration of time she would need to be absent from work or when she
anticipated having the procedure completed. 
4.   Horelica claimed to have mentioned her procedure but was unclear as to the exact content of her message as
she was taking pain medication at the time she made the phone call.
