                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT


                                       No. 98-40493
                                     Summary Calendar

STEPHEN FISHER,

                                                                    Plaintiff-Appellant,

                                            versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                                                      Defendant-Appellee.

           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (4:96-CV-340)
_________________________________________________________________

                                       March 5, 1999

Before HIGGINBOTHAM, JONES, and WEINER, Circuit Judges.

PER CURIAM:*

               Appellant Stehpen Fisher sued his former employer, State

Farm Mutual Automobile Insurance Company (“State Farm”), alleging

a cause of action under the Family Medical Leave Act (“FMLA”), 29

U.S.C. § 2601 et seq., and a cause of action for intentional
infliction of emotional distress.                        The district court granted

summary judgment for State Farm and Fisher appealed.                              We affirm.

                                         BACKGROUND

               While employed by State Farm as an Automotive Estimator

in June and July of 1994, appellant took 15 days of paid leave from

work to care for his ill father and assist him in running his

trucking business.             In August 1994, appellant took another five


  *
   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 R. 47.5, the Court has determined that this opinion should not be published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.
days of paid leave for the same reason.                   After his father passed

away in September 1994, appellant took another 16 days of leave

(12 of which were paid absences) in connection with the funeral and

related affairs.         On September 22, 1994, appellant requested in

writing that his supervisor give him a 60 day leave of absence

because he needed time to 1) function as the executor of his

father’s      estate;    2)    help    his       mother   through     the   difficulty

associated     with     the   death;    and       3)   deal   with    his   own    mental

suffering and marital strife. Because a medical certification form

was required to substantiate his claim that he needed a medical

leave, and he had not yet seen a doctor, his supervisor instructed

him to have his doctor examine him and submit a Family Leave

Certification Form.

              Appellant met with Dr. Steven Overn who diagnosed him as

having an “adjustment disorder.” According to Overn, appellant was

experiencing excessive stress and needed time away from work to

clear up his father’s estate.                After receiving the certification

form   from    Overn,    Dr.    Margaret         Sowanda,     State   Farm’s      Medical

Director, noticed that the form was incomplete because it did not

include any information regarding appellant’s course of treatment

and did not state that appellant was unable to function in his job.

Sowanda    then   phoned       Overn   to     clarify     his   diagnosis.         Overn

explained that he had prescribed Zoloft and scheduled appellant for

re-evaluation in two weeks, because Zoloft takes two weeks to begin

working.      Sowanda then suggested that appellant’s leave should be

for two weeks instead of the 60 days initially requested, and Overn


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agreed.

           State Farm sent appellant a letter informing him that he

had been approved for a two-week leave and was to thereafter return

to work.   According to appellant’s deposition, he used the time to

settle his father’s estate, run his father’s business, and care for

his mother.     At the end of the two-week period, appellant did not

return to work and was accordingly classified as Absent Without

Leave (“AWOL”).         Three days later, State Farm terminated his

employment due to his AWOL status.

                             STANDARD OF REVIEW

           In    reviewing    the   district     court’s   grant    of    summary

judgment, the standard of review at the appellate level is de novo.

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

to interrogatories, and admissions on file, together with any

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

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

a matter of law.”       FED. R. CIV. P. 56(c); see also Celotex Corp. v.

Citrate, 477 U.S. 317, 322-24 (1986).             Under this standard, all

fact questions must be viewed in the light most favorable to the

non-moving party, and questions of law are reviewed de novo.

Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.).

Once the moving party meets its burden, the burden shifts to the

non moving      party   to   produce   evidence    sufficient      to    show   the

existence of a material fact.          See id.




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                                    DISCUSSION

A.     Family Medical Leave Act

               The district court granted summary judgment for State

Farm because appellant failed to show that he was incapacitated as

required by FMLA.           Appellant argues that incapacity is not a

necessary requirement for protection under FMLA, and even if it is,

the appellee, by providing “an unconditional grant of FMLA leave,”

waived the incapacity issue.

               Under the FMLA, an employee is entitled to a leave if the

employee has “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).                A “serious health condition” is

defined as an “illness, injury, impairment, or physical or mental

condition that involves . . . continuing treatment by a health care

provider” including “[a] period of incapacity . . . .”                    29 C.F.R.

§    825.114    (a)(2)   (1997).      This       Court   has    interpreted      these

regulations      as   requiring     FMLA       plaintiffs   to    show    that   they

experienced a period of incapacity. “[U]nder the regulation, where

an    employee    alleges    that   he     has    a   serious    health   condition

involving continuing treatment by a health care provider, he must

first demonstrate a period of incapacity (i.e. the inability to

work) . . . .”        Murray v. Red Kap Indus., Inc., 124 F.3d 695, 698

(5th Cir. 1997); see also Price v. Marathon Cheese Corp., 119 F.3d

330, 335 (finding that the plaintiff was not entitled to FMLA

protection because “she failed to prove incapacity”).

               The district court granted summary judgment for State


                                           4
Farm because appellant failed to raise a fact issue regarding his

incapacity.          The   appellant’s          doctor    testified     that     despite

appellant’s        “adjustment       disorder,”      he    “still      could     perform

activities of daily living . . . .”                       In addition, the doctor

conceded that appellant’s stress which was caused by probating his

father’s estate could have been alleviated by finding a replacement

executor.         Finally, while appellant was on his two-week leave of

absence, he actively discharged his duties as the executor of his

father’s estate, continued to run the trucking business, and cared

for his mother.       Based on these facts, the district court properly

granted summary judgment for the appellee because Fisher did not

show that he was incapacitated; he failed to meet the requirements

for having a “serious health condition.”

              The appellant relies on Sims v. Almeda-Contra Costa

Transit Dist., 2 F. Supp.2d 1253 (N.D. Cal. 1998), to argue that

State Farm, by initially providing “an unconditional grant of FMLA

leave,”1 somehow waived its right to argue now that appellant does

not qualify under FMLA.              We disagree.          The issue in Sims was

whether an employer, who denied an employee’s request for leave

without obtaining follow-up medical opinions as required by the

FMLA,       may    later    challenge       the     accuracy      of     the     medical

certification.       See id. at 1260.           The district court held that the

employer may        not    contest    the   validity       of   the    initial    medial

certification if it did not seek the required subsequent medical


        1
      State Farm granted a two week leave to appellant,                          not   “an
unconditional grant of FMLA leave” as appellant contends.

                                            5
opinion.    See id. at 1255.       Sims is inapplicable, however, because

State    Farm   is   not    contesting       the    validity    of    the   medical

certification.       Instead, State Farm relies on Overn’s medical

certification and later testimony to support its argument that

appellant was capable of performing normal job functions and was

not incapacitated.         Fisher has not cited, and we are unable to

find, any case or statute that prevents an employer from defending

itself in a FMLA suit on the basis that its employee, who was

granted a limited leave of absence, does not qualify for a FMLA

leave.

B.   Intentional Infliction of Emotional Distress

            Appellant      next   argues     that   State    Farm    intentionally

inflicted emotional distress on him.               In order to support a claim

for intentional infliction of emotional distress under Texas law,

appellant must prove that State Farm’s conduct 1) was intentional

or reckless; 2) was extreme and outrageous; 3) caused the plaintiff

emotional    distress;      and   4)   finally,      the    resulting   emotional

distress was severe.         See Twyman v. Twyman, 855 S.W.2d 619, 621

(Tex. 1993).

            Appellant first argues that he suffered severe emotional

distress because a State Farm supervisor placed a memorandum

containing false information in his personnel file the day after he

was fired.      The district court did not consider the memorandum

because appellant did not attach it to his brief in opposition to

summary judgment.     Even if the appellant had properly produced the

memorandum and the district court had considered it, the memorandum


                                         6
does not   exhibit   the   kind   of       extreme   or   outrageous   behavior

necessary to establish a claim.             Moreover, there is no evidence

that the memorandum caused appellant to suffer emotional distress,

especially since he did not become aware of the memorandum until

two years after his termination.           Appellant also argues that State

Farm intentionally inflicted emotional distress by interfering with

his ability to exercise FMLA rights. As previously noted, however,

the appellant does not have any rights under the FMLA because he

proved neither that he suffered a “severe health condition” nor

incapacity.      Thus,   his   claim       for   intentional   infliction   of

emotional distress fails.

                                CONCLUSION

     Because we find no reversible error and because the appellant

failed to show a genuine issue of material fact as to both the FMLA

issue and the intentional infliction of emotional distress issue,

we AFFIRM the district court’s grant of summary judgment.

     AFFIRMED.




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