                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                                 No. 01-30731




                       BARBARA BAILEY PICHON

                                                   Plaintiff - Appellant


                                    VERSUS


                           MURPHY OIL USA, INC.


                                                       Defendant - Appellee



           Appeal from the United States District Court
        For the Eastern District of Louisiana, New Orleans
                            00-CV-2355-C
                           March 8, 2002


Before GARWOOD, JOLLY and DAVIS, Circuit Judges

PER CURIAM*

      The district court dismissed this action filed under the

Family Medical Leave Act, 29 U.S.C. § 2611 et seq., on grounds that

the   plaintiff   failed    to     produce   summary    judgment   evidence

establishing that her sinusitis prevented her from performing the

functions of her employment.       After reviewing the summary judgment


  *
   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opinion should not be published and is not precedent except under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.
record, we are satisfied that Pichon produced sufficient evidence

to defeat summary judgment on this issue.

     Pichon’s   summary    judgment     evidence    included     deposition

testimony by her physician, Dr. Hardges, along with absentee forms

signed by Dr. Hardges stating that Pichon was unable to work for

several days in September 1998 and March 1999 because of her

sinusitis.   Dr. Hardges’s testimony was more equivocal than the

absentee forms, but the combination of the two was sufficient to

defeat summary judgment.

     The   district   court   did   not   rule     on   the   Act’s   second

requirement, that an employee’s incapacity be caused by a “serious

health condition,” and we do not reach this issue.

     The judgment of the district court is therefore vacated and

the case is remanded for further proceedings consistent with this

opinion.

     VACATED AND REMANDED.




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