                            REVISED
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT




                           No. 96-60509




BETTY FAYE PRICE,

                                             Plaintiff-Appellant,

                              versus


MARATHON CHEESE CORP.,

                                             Defendant-Appellee.



           Appeal from the United States District Court
             For the Northern District of Mississippi



                          July 31, 1997


Before WIENER and PARKER, Circuit Judges, and LITTLE*, District
Judge.
WIENER, Circuit Judge:

     In this employment discrimination case, Plaintiff-Appellant

Betty Price appeals the district court’s grant of Defendant-

Appellee Marathon Cheese Corporation’s motion for judgment as a

matter of law, concluding that she failed to establish a claim




       *
        Chief U.S. District Judge of the Western District of
Louisiana, sitting by designation.
under       the   Family      and    Medical   Leave   Act2   (FMLA),    the     Age

Discrimination in Employment Act3 (ADEA), or the Americans with

Disabilities Act4 (ADA).             In our de novo review we find that Price

failed to adduce sufficient evidence to allow a reasonable jury to

find that she was a victim of actionable employment discrimination

under any of those Acts.             Accordingly, we affirm.

                                           I

                               FACTS AND PROCEEDINGS

       Price was employed by Marathon for twenty-three years.                    She

was fired on November 7, 1994, by Marathon’s plant manager, Tim

Trace,       at   the   age     of    forty-nine.      Although   some    of     the

circumstances surrounding her termination are in dispute, in the

end there is insufficient evidence supporting Price’s position on

disputed points to require jury resolution.

       In August 1994, Dr. Dwight Johnson diagnosed Price with carpal

tunnel syndrome and prescribed conservative treatment.                         Price

contends that shortly thereafter she told Trace about her condition

and that he inquired as to when she planned to have surgery.                   Trace

maintains that he was never specifically informed that she had

carpal tunnel syndrome and that he never stated that she would need

surgery.       In mid-September, Dr. Johnson restricted Price’s work to

light duty with limited arm movement, not to exceed eight hours per

day.       Price gave supervisor Carolyn Walker a note from Dr. Johnson

       2
        29 U.S.C. § 2601 et seq.
       3
        29 U.S.C. § 621 et seq.
       4
        42 U.S.C. § 12101 et seq.

                                           2
relaying this restriction.    Marathon accommodated the restricted

work recommendation, placing Price on a salvage line that entailed

nonrepetitive motion. Price testified that while she worked on the

salvage line she was required to perform duties that were never

before required of salvage line workers.    She stated specifically

that she first had to remove mold from the cheese by        cutting

through its paper wrapping, then had to place the cheese in a

barrel, and finally had to remove all of the paper from the barrel.

According to Price, the usual method is to remove the paper first

and then remove the mold. Marathon countered that she was required

to cut through the paper first, as removing the paper initially

would have contaminated the entire batch of cheese.

     Price requested a transfer to her old job on the two-pound

line, but Trace denied this request.   Her subsequent request to be

placed on the random weight line was also denied.

     Price obtained a release to full duties from Dr. Johnson at

the end of September.    In October, Price requested overtime and

worked fifty-two hours in the last week of the month, which was the

week before she was fired.    She continued to see Dr. Johnson in

October.   Price claims that the October visits involved her carpal

tunnel syndrome and stomach problems associated with her treatment.

According to Dr. Johnson’s deposition testimony, however, these

visits dealt solely with her blood pressure.

     On Friday, November 4, Price asked to speak with Walker and

Ronnie Johnson, another plant supervisor.   According to Marathon’s

witnesses, Price left work without permission after expressing her


                                 3
unwillingness to train or supervise new employees on the five-pound

line,5 as she was not a supervisor.      Rather, she stated that she

would not work as a supervisor and that they could get one “back

there.”   Price testified that she became so ill that day that she

was unable to perform her duties.      She contends that she informed

her supervisors that she was too sick to work and was given

permission to leave.      Marathon’s witnesses denied that Price

complained of any pain; they testified that when asked whether she

sought permission to leave work to see the doctor, she responded

that she did not have a doctor’s appointment. In fact, she did not

see a doctor that day.

     On the ensuing Monday, November 7, Price reported for work

with a doctor’s excuse that she obtained during an office visit

that morning.     The   excuse   addressed   only   that   day;   however,

according to Price, she told Trace that Dr. Johnson could confirm

that her condition existed prior to November 4.

     Trace fired Price that morning.     He testified that he did so

because she had left work early without permission on the preceding

workday (Friday, November 4), in violation of company policy.

Marathon has a posted policy that prohibits an employee from

leaving work without first notifying and obtaining permission from

a supervisor.

     Price testified that she is the only Marathon employee ever

fired for leaving work early.    Marathon rebutted Price’s testimony


    5
     She had worked on the five-pound line that day and previously
when there was insufficient salvage cheese to be opened.

                                   4
with evidence that other employees had been discharged for leaving

work without authorization.

     In support of her age discrimination claim, Price testified

that two years prior to her discharge Trace had joked that he

wanted to get rid of older workers to bring younger employees into

the company.         To refute her age discrimination claim, Marathon

adduced evidence that when Price was dismissed, the “bulk” of its

employees were over forty years old.           Additionally, Marathon’s

evidence shows that in 1992, when Trace became plant manager, he

re-hired many former employees who had been laid off, three of whom

were at least fifty years old.             Marathon also hired younger

individuals who were referred by another company.

     Price filed suit against Marathon in May 1995.        A jury trial

was held in July 1996.        Marathon moved for judgment as a matter of

law at the conclusion of all of the evidence.           The trial court

granted this motion, dismissing Price’s claims with prejudice.         A

notice of appeal was timely filed.

                                      II

                                   ANALYSIS

A.   STANDARD   OF   REVIEW

     We review the district court’s decision to grant judgment as

a matter of law de novo, applying the same legal standard as the

district court.6         Judgment as a matter of law is proper after a

party has been fully heard by the jury on a given issue and “there


     6
     Omnitech Int’l Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th
Cir. 1994).

                                      5
is no legally sufficient evidentiary basis for a reasonable jury to

find for that party on that issue. . . .”7                  In evaluating such a

motion, the court must consider all of the evidence in the light

most favorable to the nonmovant, drawing all factual inferences in

favor      of   the      non-moving       party,     and    leaving    credibility

determinations, the weighing of evidence, and the drawing of

legitimate inferences from the facts to the jury.8

B.   APPLICABLE LAW

     1.     FMLA —— Did Price adduce sufficient evidence to allow a
            reasonable jury to find that she suffered from a serious
            health condition?

     The FMLA entitles an eligible employee to as much as twelve

weeks leave from work when he has a serious health condition that

makes     him   unable    to    perform    the     essential    functions     of     his

position.9      Such leave may be taken intermittently or on a reduced

leave     schedule    when     medically    necessary.10        The   FMLA    further

provides that,        upon     return   from     leave,    an   employee     shall    be

restored to the position of employment he held when the leave

commenced or to an equivalent position.11

     The FMLA defines “serious health condition” as “an illness,

injury, impairment, or physical or mental condition that involves

     7
         FED. R. CIV. P. 50(a).
     8
     Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255; 106 S.Ct.
2505, 2513 (1986); Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.
1994).
     9
         29 U.S.C. § 2612(a)(1).
     10
          29 U.S.C. § 2612 (b)(1).
     11
          29 U.S.C. § 2614(a)(1).

                                           6
-- (A) inpatient care in a hospital, hospice, or residential

medical care facility; or (B) continuing treatment by a health care

provider.”12     The interim regulations applicable to this claim

clarify what is meant by a serious health condition.13   A “serious

health condition” involves

     (1) Any period of incapacity or treatment in connection
     with or consequent to inpatient care ... in a hospital,
     hospice, or residential medical care facility;

     (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; ....14

“Continuing treatment” 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 ....

     (2) The employee or family member is treated for the
     injury or illness two or more times by a provider of
     health care services ... under the 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.


     12
          29 U.S.C. § 2611(11).
           13
         As Price’s claim arose in November 1994, the interim
regulations apply to this action.    The final regulations took
effect on February 6, 1995. 69 F.R. § 2180.
     14
          29 C.F.R. § 825.114(a) (1994).

                                   7
     (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....15


A “chronic serious health condition” is one that requires periodic

visits for treatment, continues over an extended period of time,

and may      cause   episodic    rather       than   a   “continuing”     period    of

incapacity.16

     Price contends that on November 4, 1994, she was suffering

from a serious health condition, carpal tunnel syndrome, which kept

her from performing her job.           Marathon maintains that as a matter

of law Price did not suffer from a serious health condition and

thus is not entitled to recover under the FMLA.                 Marathon asserts

that she merely suffered from a short term condition requiring

brief treatment and recovery. To support this position, Marathon’s

evidence     demonstrates       that   Price     performed     all   of    her     job

functions, and even asked for and received overtime during the week

preceding her firing.

     As Price did not receive inpatient care for her condition, she

must meet the FMLA’s requirements of receiving continuing treatment

by a health care provider to qualify as having a serious health

condition.     Given the fact that she worked on the Friday that she

left and reported for work on the following Monday, she does not

satisfy the FMLA’s “period of incapacity ... of more than three


     15
          29 C.F.R. § 825.114(b) (1994).
     16
          29 C.F.R. § 825.114(a)(2)(iii).

                                          8
consecutive calendar days” requirement.   Price also contends that

she suffered from a “chronic serious health condition,” which

eliminates the need for an absence of more than three days as well

as for treatment during the absence.17

     Pretermitting consideration of the three-day element, and

notwithstanding the question whether or not her condition was

chronic for purposes of the FMLA, we conclude that Price failed to

adduce sufficient evidence to allow a reasonable jury to find that

she suffered from a serious health condition.18 The following facts

are not in serious dispute.     Price first visited Dr. Johnson in

July 1994 with complaints of pain in her right arm and elbow.

Subsequently, she obtained a nerve conduction study and visited Dr.

Johnson approximately six to eight times prior to her November

firing.    Two of these visits had nothing to do with carpal tunnel

syndrome.   Dr. Johnson placed Price on modified work duties for a

two week period, but returned her to a full work schedule at her

request.    In his deposition, Dr. Johnson stated that she had a

“mild to moderate impairment,” for which he prescribed conservative

    17
      29 C.F.R. 825.114(e). It is uncertain whether the three day
requirement applies to chronic serious health conditions.     See
Kaylor v. Fannin Reg’l Hosp., Inc., 946 F.Supp. 988, 997 (N.D.
Georgia 1996).
    18
      Marathon also contends here, as it did in the district court,
that Price failed to give notice sufficient to trigger
consideration under the FMLA. While it is not necessary for an
employee to invoke the statute expressly, the information imparted
to the employer must be sufficient to give reasonable notice of the
request to leave for a serious health condition.         Manuel v.
Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). Given
our disposition of this case on grounds of “serious health
condition,” we need not, and therefore do not, address the notice
issue.

                                  9
treatment.      He acknowledged that “[i]n more severe cases, I would

consider splinting the wrist so as to prohibit movement of the

wrist.       I might consider taking her off work altogether.”19                Dr.

Johnson did not, however, prescribe either of these treatments for

Price. We acknowledge that carpal tunnel syndrome, if sufficiently

severe,       can     be    a   serious   health      condition;   but   Price’s

manifestation of this condition, as described by her treating

physician, did not rise to the level of “serious health condition”

for purposes of the FMLA.           Finally, there is a dearth of evidence

that she was actually incapacitated during her absence on Friday

afternoon and the weekend.

      Both Price and Marathon rely on Brannon v. Oshkosh B’Gosh,

Inc.20 to support their respective legal positions. In Brannon, the

court held that an employee’s gastroenteritis and upper respiratory

infection did not constitute a serious health condition. The court

stated that the regulations have developed a bright line test for

determining         which illnesses qualify as serious health conditions.

If an employee is “(1) incapacitated for more than three days,

(2)   seen     once    by   a   doctor,   and   (3)   prescribed   a   course   of

medication, such as an antibiotic, she has a ‘serious health

condition’ worthy of FMLA protection.”21               The Brannon court found

that although the plaintiff stayed home from work she could not

prove that it was due to a serious health condition —— that is, she

      19
           Deposition of Dr. Johnson, p.30, lines 22-24.
      20
           897 F. Supp. 1028, 1035 (M.D. Tenn. 1995).
      21
           Id. at 1036.

                                          10
could not prove that she had been incapacitated or unable to work.22

The    court      based    this   conclusion    on   the    facts    that   (1)   the

plaintiff’s doctor never advised her to refrain from work, (2) the

plaintiff’s own testimony was insufficient to prove that her

absence was necessary; and (3) her doctor could not testify that

she was unable to perform the functions of her job in light of her

illness.23        When we follow the           reasoning in Brannon, we find

inescapable the conclusion that Price did not suffer from a serious

health condition and that she failed to prove incapacity.

       Marathon’s witnesses’ accounts of the incident are consistent,

while Price’s unverified story has all the hallmarks of a post-hoc

attempt to make a silk purse out of a sow’s ear.                            She has

endeavored to create a FMLA cause of action where none exists.                     We

conclude that Price did not adduce sufficient evidence to preclude

judgment as a matter of law under the FMLA.

       2.     ADA —— Did the district court err in granting judgment
              as a matter of law against Price on her ADA claim?

       The ADA prohibits discrimination in employment against persons

with    disabilities,        providing   that    “[n]o     covered   entity   shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms,




       22
            Id. at 1037.
       23
            Id.

                                         11
conditions, and privileges of employment.”24                “Discrimination”

includes     “not    making    reasonable   accommodations      to   the     known

physical or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless such

covered entity can demonstrate that the accommodation would impose

an undue hardship on the operation of the business of such covered

entity ....”25      A “disability” includes:     (1) a physical or mental

impairment     that   substantially    limits   one    or   more     major    life

activities; (2) a record of such an impairment; or (3) being

regarded as having such an impairment.26

     Under the EEOC regulations a person is deemed to be “regarded

as having a disability” if he:

     (1) Has a physical or mental impairment that does not
     substantially limit major life activities but is treated
     by a covered entity as constituting such limitation;

     (2) Has    a   physical   or   mental   impairment   that
     substantially limits major life activities only as a
     result of the attitudes of others toward such impairment;
     or

     (3) Has none of the impairments defined in paragraph
     (h)(1) or (2) of this section but is treated by a covered
     entity as having a substantially limiting impairment.27


An employer does not necessarily regard an employee as having a

substantially       limiting   impairment   simply    because    the   employer

believes that the employee is incapable of performing a particular

     24
          42 U.S.C. § 12112(a).
     25
          42 U.S.C. § 12112(b)(5)(A).
     26
          42 U.S.C. § 12102(2).
     27
          29 C.F.R. § 1630.2(l).

                                      12
job.        Instead, an employer regards an employee as substantially

limited in his ability to work by believing that the employee’s

impairment forecloses the general type of employment involved.28

       In granting Marathon’s motion for judgment as a matter of law

on Price’s ADA claim, the district court relied heavily on our

opinion in Ellison v. Software Spectrum, Inc.29                        The court held

that, as she failed to establish a substantial limitation of one or

more major life activities, Price does not have a disability under

the ADA.          In the area of work, she was able to perform other jobs

and had worked overtime preceding her discharge.                         Further, she

testified that she believed she was capable of doing other jobs

available to her at Marathon.             The court also held on the basis of

Price’s       evidence    that    Marathon     did   not    regard     her   as   being

disabled,         concluding     that   the   company      did   not    consider    her

condition to preclude the type of employment involved.

       We agree with the analysis of the district court.                     Price has

failed to present evidence sufficient to allow a reasonable jury to

conclude that she was a victim of disability discrimination.

       3.     ADEA —— Did the district court err in granting judgment
              as a matter of law against Price on her ADEA claim?

       Under the ADEA it is unlawful for an employer to discharge an

employee based on age.30                A plaintiff must prove intentional

discrimination to establish a violation.                This can be accomplished

       28
       Ellison v. Software Spectrum, Inc., 85 F.3d 187, 192 (5th
Cir. 1996); 29 C.F.R. § 1630.2(j)(3)(i).
       29
            Id.
       30
            29 U.S.C. § 623(a)(1).

                                          13
by presenting either direct or indirect evidence of discrimination.

      Direct evidence of discrimination is rare, so a plaintiff may

use indirect evidence and reasonable inferences to establish an

ADEA claim under the three step McDonnell Douglas burden-shifting

analysis.          In the first step, a plaintiff must endeavor to present

a prima facie case, thereby establishing a rebuttable presumption

of discrimination.31            A prima facie showing of age discrimination

requires       a    plaintiff    to     prove    that   he   was:   (1)    discharged;

(2) qualified for the position; (3) within the protected class; and

(4) either (i) replaced by someone outside the protected class,

(ii) replaced by someone younger, or (iii) otherwise discharged

because of his age.32

      The second step is taken if a plaintiff establishes a prima

facie case.          In this step the defendant must offer a legitimate,

nondiscriminatory reason for its decision.33

      The third step is taken if the defendant is able to articulate

a   legitimate,        nondiscriminatory         reason.      The     presumption      of

discrimination          fades     and     the    plaintiff     must       prove   by    a

preponderance of the evidence that the employer’s articulated

reason is a pretext for unlawful discrimination.34                        To establish


      31
      Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 149 (5th
Cir. 1995).
     32
     Id., (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957
(5th Cir. 1993)).
      33
           Id. at 149.
          34
       Id.,(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11; 113 S.Ct. 2742, 2749 (1993)).

                                            14
pretext, a plaintiff cannot merely rely on his subjective belief

that discrimination has occurred;35 rather, he has the ultimate

burden           of   persuasion      in   proving     intentional     discrimination

throughout the case.            The plaintiff must prove that age “actually

played a role in” and “had a determinative influence on” the

employer’s decision-making process.36                   Pretext can be shown by,

inter alia, age-biased comments.               Age-related remarks are relevant

to determining whether age discrimination has occurred;37 however,

mere “stray remarks” such as “a younger person could do faster

work” or calling an employee an “old fart” have been held to be

insufficient to establish discrimination.38 The district court held

that    there         was   simply    no   probative    evidence     that   age   was   a

determinative factor in the decision to terminate Price.

       Price insists that Marathon’s proffered reason for discharging

her —— leaving work early without permission, in violation of work

policy —— is pretext.                She contends that she established a prima

facie case and that she demonstrated that the defendant’s proffered

reason was pretextual.               As she was age forty-nine when discharged,

she is within the protected class.                 She also maintains that she was

qualified for her job.               To satisfy the final prong, Price states

       35
      Waggoner v. City of Garland, Texas, 987 F.2d 1160, 1166 (5th
Cir. 1993).
            36
        Armendariz, 58 F.3d at 149, (citing Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610; 113 S.Ct. 1701, 1706 (1993)).
        37
       See EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th
Cir. 1994); Bienkowski v. American Airlines, Inc., 851 F.2d 1503,
1507 (5th Cir. 1988).
       38
            Waggoner, 987 F.2d at 1166 (5th Cir. 1993).

                                              15
that Trace once commented that he wanted to get rid of the older

employees and hire “young blood” and that after he took over, most

of the new hires were in their twenties and early thirties.    She

also expressed the belief that she was treated differently than

younger employees.    As evidence of such treatment she testified

that after she left work early, Trace announced that he had found

a way to get rid of her.    Price further maintains that Trace did

not discipline younger employees for violating this company policy.

     All of this amounts to little more than Price’s subjective

belief that she was fired because of age.   Assuming that the age-

related comment was made, it was a stray remark uttered two years

prior to Price’s firing.      In contrast, Marathon adduced hard

evidence that Trace rehired many older employees and selected the

new hires based on recommendations received from an employment

company.    Finally, any lack of evidence of other employees being

fired for violating Marathon’s leave policy is understandable,

given that this policy had been in effect for only a few months

when Price was fired.   We agree with the district court’s analysis

and find the evidence of intentional age discrimination woefully

lacking.

                                III

                            CONCLUSION

     Our plenary review places us in agreement with the district

court’s determination that Marathon was entitled to a judgment as

a matter of law dismissing all of Price’s claims.          For the

foregoing reasons, the judgment of the district court is, in all

respects,

AFFIRMED.

                                 16
