Evans v. Barnes-Jewish Hospital

Eighth Circuit

Evans v. Barnes-Jewish Hospital

160 F. App'x 549

CourtCourt of Appeals for the Eighth Circuit

DecidedDecember 27, 2005

Docket04-3558

StatusUnpublished

This text of 160 F. App'x 549 (Evans v. Barnes-Jewish Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. Barnes-Jewish Hospital, 160 F. App'x 549 (8th Cir. 2005).

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Opinion

PER CURIAM.

Richard D. Evans appeals the district court’s 1 adverse grant of summary judgment in his action brought under the Family and Medical Leave Act (FMLA) and state law. Having carefully reviewed the record, we affirm. See Woods v. Daimler-Chrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (de novo standard of review.)

We agree with the district court that Evans failed to establish that defendants’ proffered legitimate, nondiscriminatory reason for his termination from his cafeteria supervisory position — continued performance deficiencies — was pretextual. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002) (employee who requests FMLA leave has no greater protection against his employment being terminated for reasons unrelated to his FMLA request than he did before submitting request); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832-34 (8th Cir.2002) (to show pretext, employee must present evidence that creates fact *551 question as to whether proffered reason was pretextual and creates reasonable inference that employer acted in retaliation for exercise of FMLA rights). Notably Evans specifically challenged only one of the thirteen performance deficiencies cited at his termination. While Evans’s supervisors discussed with him the proper use of FMLA leave and suggested that he consider alternatives for addressing his parents’ medical needs, these discussions were prompted by Evans’s use of- FMLA leave to perform tasks which could have been done on his off-duty hours, such as picking up prescriptions, and by Evans’s repeated last-minute notifications that he was taking an FMLA leave day. Cf. 29 C.F.R. § 825.117 (2005) (employees needing intermittent FMLA leave must attempt to schedule leave so as not to disrupt employer’s operations).

As to the state-law claims, we agree with the district court that there was no evidence of extreme and outrageous conduct, or of conduct that defendants should have realized involved an unreasonable risk of causing medically significant emotional distress or mental injury. See St. Anthony’s Med. Ctr. v. H.S.H., 974 S.W.2d 606, 611-12 (Mo.App.1998) (elements of claims for intentional and negligent infliction of emotional distress). Finally, we note that ineffective assistance of counsel is not a basis for reversal. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.1988).

Accordingly, we affirm. See 8th Cir. R. 47B. We deny as moot Evans’s five pending motions and appellees’ motion to strike Evans’s reply brief.

1

. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.

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PER CURIAM.

Richard D. Evans appeals the district court’s 1 adverse grant of summary judgment in his action brought under the Family and Medical Leave Act (FMLA) and state law. Having carefully reviewed the record, we affirm. See Woods v. Daimler-Chrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (de novo standard of review.)

We agree with the district court that Evans failed to establish that defendants’ proffered legitimate, nondiscriminatory reason for his termination from his cafeteria supervisory position — continued performance deficiencies — was pretextual. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61 (10th Cir. 2002) (employee who requests FMLA leave has no greater protection against his employment being terminated for reasons unrelated to his FMLA request than he did before submitting request); Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832-34 (8th Cir.2002) (to show pretext, employee must present evidence that creates fact *551 question as to whether proffered reason was pretextual and creates reasonable inference that employer acted in retaliation for exercise of FMLA rights). Notably Evans specifically challenged only one of the thirteen performance deficiencies cited at his termination. While Evans’s supervisors discussed with him the proper use of FMLA leave and suggested that he consider alternatives for addressing his parents’ medical needs, these discussions were prompted by Evans’s use of- FMLA leave to perform tasks which could have been done on his off-duty hours, such as picking up prescriptions, and by Evans’s repeated last-minute notifications that he was taking an FMLA leave day. Cf. 29 C.F.R. § 825.117 (2005) (employees needing intermittent FMLA leave must attempt to schedule leave so as not to disrupt employer’s operations).

As to the state-law claims, we agree with the district court that there was no evidence of extreme and outrageous conduct, or of conduct that defendants should have realized involved an unreasonable risk of causing medically significant emotional distress or mental injury. See St. Anthony’s Med. Ctr. v. H.S.H., 974 S.W.2d 606, 611-12 (Mo.App.1998) (elements of claims for intentional and negligent infliction of emotional distress). Finally, we note that ineffective assistance of counsel is not a basis for reversal. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.1988).

Accordingly, we affirm. See 8th Cir. R. 47B. We deny as moot Evans’s five pending motions and appellees’ motion to strike Evans’s reply brief.

1

. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.

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160 F. App'x 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-barnes-jewish-hospital-ca8-2005.

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