holding that an employer was not entitled to deny FMLA leave when it had given an employee “no information about the FMLA certification requirement,- the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification”
How later courts described this case
- holding that an employer was not entitled to deny FMLA leave when it had given an employee “no information about the FMLA certification requirement,- the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification”
- noting that, under the FMLA, an “eligible employee” is “entitle[d] . . . to up to twelve weeks of leave per year if the employee has a ‘serious health condition that prevents the employee from performing the functions of her job’” and that, “[t]o prevail on either her interference claim or her retaliation claim, [the plaintiff] must prove that she was entitled to FMLA leave” (emphasis added; citations omitted)
- holding that employee's “additional duty” to provide certification is “triggered” only if the employer makes a “proper request” under the regulatory provisions.”
- holding that a genuine issue of material fact existed as to whether migraines, anxiety, depression, and insomnia constituted a serious health condition
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0283p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
DEBORAH MICHELE BRANHAM,
-
-
-
No. 09-6149
v.
,
>
-
NETWORK, INC., d/b/a THE DICKSON HERALD -
GANNETT SATELLITE INFORMATION
-
-
GROUP,
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 08-00700—Todd J. Campbell, Chief District Judge.
Argued: August 4, 2010
Decided and Filed: September 2, 2010
Before: BOGGS, SILER, and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert C. Bigelow, DICKINSON WRIGHT PLLC, Nashville, Tennessee,
for Appellant. Charles K. Grant, BAKER, DONELSON, BEARMAN, CALDWELL &
BERKOWITZ, P.C., Nashville, Tennessee, for Appellee. ON BRIEF: Robert C.
Bigelow, Martin D. Holmes, DICKINSON WRIGHT PLLC, Nashville, Tennessee, for
Appellant. Charles K. Grant, Ben H. Bodzy, BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C., Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff Deborah Branham brought
suit under the Family and Medical Leave Act (“FMLA”) after being terminated from her
job as a receptionist for The Dickson Herald, a newspaper owned by Gannett Satellite
1
No. 09-6149 Branham v. Gannett Satellite Information Network Page 2
Information Network, Inc. (“Gannett”), for excessive absenteeism. The district court
granted summary judgment to Gannett. The court held that although Branham produced
a medical certification of her need for leave within the fifteen-day period afforded by
Department of Labor regulations, Gannett was entitled to deny her leave based on an
earlier “negative certification”—a form from a physician indicating that Branham was
not incapacitated. Because we conclude that Gannett never properly triggered
Branham’s duty to provide a medical certification, we REVERSE.
I. BACKGROUND
The district court discussed the facts material to the dispute between Branham
and Gannett:
Plaintiff was first employed as a receptionist for The Dickson
Herald from November 21, 2003 to January 15, 2004. Plaintiff was
terminated from her position for excessive absenteeism.
Plaintiff was rehired as a receptionist by The Dickson Herald on
July 26, 2005, and was terminated on November 24, 2006 for failure to
follow the company attendance policy. Plaintiff’s regularly scheduled
work hours were from Monday through Friday, 8:00 a.m. to 5:00 p.m.
Plaintiff’s immediate supervisor was Tracy Buhler, the Office Manager
for The Dickson Herald. Ms. Buhler reported to Buddy Hargett, the
General Manager for The Dickson Herald. Mr. Hargett reported to Terri
Leifeste, the Vice President of Middle Tennessee Community
Newspapers (“MTCN”), which publishes The Dickson Herald.
Plaintiff’s absences in November, 2006 began on November 7,
2006. In her deposition, Plaintiff testified that she was absent from her
employment on Tuesday, November 7, 2006 because her son was ill, and
she called and so advised Ms. Buhler. The next day, Wednesday,
November 8, 2006, the Plaintiff sent an email to Ms. Buhler at
approximately 9:26 a.m. stating that she would not be in because her son
was still sick. On Thursday, November 9, 2006, the Plaintiff left a voice
mail message for Ms. Buhler stating that she was sick and would be
absent from work. On Friday, November 10, 2006, Plaintiff again left a
message for Ms. Buhler that she was sick and would be absent from
work.
On Monday, November 13, 2006, Plaintiff’s husband left a
message for Ms. Buhler that Plaintiff was sick and that he would be
taking her to the doctor. On that day, Plaintiff was examined by Dr.
No. 09-6149 Branham v. Gannett Satellite Information Network Page 3
Pamela Singer at the Dickson Family Medical Group. According to the
Plaintiff, she told Dr. Singer that she was suffering from migraine
headaches, menstrual problems, depression, insomnia, and a stomach
virus. Dr. Singer found the Plaintiff[’s exam] to be “normal” and
expected her to return to full work duty on November 14, 2006. Plaintiff
testified that she talked with Ms. Buhler later that day and told her that
Dr. Singer had released her to come to work the following day. Plaintiff
testified that she also told Ms. Buhler that she wasn’t feeling well, and
would need to be absent to attend other doctors’ appointments during
November and December.FN1 Plaintiff further testified that Ms. Buhler
told her to come in to the office and sign a form for short term disability[]
leave. According to the Plaintiff, Ms. Buhler also told her she could do
some work from home or after hours to help with the month-end
“close-out.”
FN1
Ms. Buhler testified that she recalled this conversation
as having taken place on November 15, 2006. For
purposes of the Defendant’s summary judgment motion,
the Court will assume the conversation took place on the
date claimed by the Plaintiff.
The next day, Tuesday, November 14, 2006, Plaintiff did not
report to work during her regular shift. According to Dr. Singer, the
Plaintiff was released to return to work on this day. The Plaintiff did
come into work late at night to complete some paperwork and fill out a
medical certification form.
Plaintiff did not report to work on Wednesday, November 15,
2006, and Thursday, November 16, 2006, but claims to have worked
from home on postal reports and subscription issues. Ms. Buhler
testified in her deposition that she faxed the medical certification form
to Dr. Singer’s office on November 15, 2006, and due to a malfunction
with Dr. Singer’s fax machine, had to fax the form again on November
16, 2006.
On Friday, November 17, 2006, Plaintiff did not report to work
during regular office hours, but states that she worked after hours. That
same day, according to Ms. Buhler, Dr. Singer’s office faxed the
completed medical certification form back to Ms. Buhler. Through that
form, Dr. Singer indicated that Plaintiff’s condition commenced on
November 10, 2006, and that she could perform her full duty as of
November 14, 2006, and did not require intermittent leave.
On Monday, November 20, 2006, Plaintiff did not report to work
or call in to explain her absence. Ms. Buhler met with M[T]CN Vice
President Terri Leifeste and Human Resources Vice President Kathy
Cheatham on that day to discuss Plaintiff’s absence. Ms. Cheatham
No. 09-6149 Branham v. Gannett Satellite Information Network Page 4
advised Ms. Buhler to contact the Plaintiff and let her know that her job
would be in jeopardy unless she could produce other medical documents
confirming her need to be off. Ms. Buhler advised the Plaintiff as she
was instructed. Plaintiff told Ms. Buhler that the wrong doctor filled out
the certification form, and stated that Dr. Koster Peters, her primary care
physician at the Dickson Family Medical Group, could provide
clarification if Defendant faxed the certification form to him. Ms. Buhler
advised the Plaintiff to call Kathy Cheatham.
On Tuesday, November 21, 2006, Plaintiff did not report to work.
Plaintiff testified that she spoke with Ms. Cheatham that day, and Ms.
Cheatham expressed her concern that it was taking the Plaintiff so long
to return a medical certification form to support her absences. Also, on
November 21, 2006, Ms. Buhler attempted to fax the certification form
to Dr. Peters, as requested by Plaintiff, but had problems with the fax
machine. Consequently, Ms. Buhler and Ms. Leifeste decided that Alvin
Leifeste, the Circulation Manager for the MTCN group, would take the
certification form completed by Dr. Singer to the physicians’ office the
next day and speak with the doctors in person.
On Wednesday, November 22, 2006, Plaintiff did not report to
work. That same day, Mr. Leifeste took the form completed by Dr.
Singer, as well as a blank certification form, to the offices of Dr. Singer
and Dr. Peters at the Dickson Family Medical Group. Mr. Leifeste spoke
with an employee at the physicians’ office, Katie Moran, and told her
there was a question about the accuracy of the form completed by Dr.
Singer, and asked if the doctor would review the form for accuracy, and
explained that he had a blank form the doctor could use if the completed
form was inaccurate. Ms. Moran said she would take the form back to
the doctor, along with the Plaintiff’s medical records, for review. When
Mr. Leifeste suggested that Dr. Peters review the form, Ms. Moran told
him that Dr. Peters would not fill out the form because he was not the
doctor who had actually seen the Plaintiff. When she returned from
speaking with Dr. Singer, Ms. Moran told Ms. [sic] Leifeste that the
doctor had looked at the certification form, that it was accurate, and that
she did not wish to make any changes.
The next day, Thursday, November 23, 2006, was Thanksgiving
Day, and the Defendant’s offices were closed.
On Friday, November 24, 2006, Plaintiff did not report to work.
Kathy Cheatham spoke with Terri Leifeste by telephone on that day, and
they jointly decided to terminate Plaintiff’s employment. Terri Leifeste
called the Plaintiff to advise her of the termination, but could not reach
her and left a message for the Plaintiff to call back. When the Plaintiff
No. 09-6149 Branham v. Gannett Satellite Information Network Page 5
did not call back, Ms. Leifeste directed Ms. Cheatham to draft a
termination letter to send to the Plaintiff by registered mail.
On Monday, November 27, 2006, Plaintiff did not report to work.
On that same day, Ms. Cheatham drafted and sent the termination letter,
over the signature of General Manager Buddy Hargett, to the Plaintiff by
registered mail. The termination letter was dated November 24, 2006,
the day the termination decision was made, and states that Plaintiff’s
termination was based on her failure to follow company attendance
policy by being absent from work since Dr. Singer released her to work
on November 14, 2006.
On Tuesday, November 28, 2006, Plaintiff did not report to work.
The termination letter was mailed at 9:44 a.m. on that same day. Plaintiff
testified that she spoke on the telephone with Ms. Cheatham, who told
her that she had been terminated.
After 6:00 p.m. that evening, the Defendant received a faxed
certification form signed by a nurse practitioner, Cheryl Seefeldt, who
worked in that same practice as Dr. Singer and Dr. Peters. Ms. Seefeldt’s
certification contradicts the certification of Dr. Singer with respect to the
duration of the Plaintiff’s incapacity. According to Nurse Seefeldt,
Plaintiff’s illness began on May 6, 2006 and was expected to prevent her
from returning to work until January 1, 2007. However, Plaintiff admits
that Dr. Singer was the only health care provider to examine her between
November 7, 2006 and November 24, 2006.
Branham v. Gannett Satellite Info. Network, Inc., No. 3:08-700, 2009 WL 2588744, at
*1–4 (M.D. Tenn. Aug. 19, 2009) (citations omitted).
On July 18, 2008, Branham filed a complaint in federal district court alleging that
Gannett violated the FMLA by interfering with her use of FMLA leave and by
terminating her in retaliation for seeking FMLA leave. Branham moved for partial
summary judgment on May 4, 2009, and Gannett moved for summary judgment on July
6, 2009. On August 19, 2009, the district court denied Branham’s motion and granted
summary judgment in full to Gannett. The court observed that an employer may require
an employee to provide a medical certification supporting her request for FMLA leave
and that the employer must allow the employee fifteen days to provide such certification.
Id. at *6. The court acknowledged that Gannett fired Branham before the fifteen-day
period expired and that Branham provided a supporting certification on the fifteenth day,
No. 09-6149 Branham v. Gannett Satellite Information Network Page 6
but it concluded that Gannett was entitled to terminate Branham on the eleventh day,
when it received a “negative certification” from Dr. Singer and confirmed that neither
Dr. Singer nor Dr. Peters would certify Branham’s need for FMLA leave. Id. at *7.
“Under these circumstances,” the district court explained, “the Court is not persuaded
that the Defendant was required to delay its termination decision until receipt of the
second, unanticipated medical certification.” Id. Branham then filed this appeal.
II. ANALYSIS
A. Standard of Review
We review a district court’s grant of summary judgment de novo and draw all
reasonable inferences in favor of the nonmoving party. DiCarlo v. Potter, 358 F.3d 408,
414 (6th Cir. 2004). Summary judgment is appropriate when there are no genuine issues
of material fact and when the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). Our focus must be on “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986).
B. Summary Judgment
“The FMLA entitles an ‘eligible employee’ to up to twelve weeks of leave per
year if the employee has a ‘serious health condition’ that prevents the employee from
performing the functions of her job.” Hunter v. Valley View Local Schs., 579 F.3d 688,
690 (6th Cir. 2009) (quoting 29 U.S.C. § 2612(a)(1)(D)). The FMLA provides a private
right of action to employees to protect their rights to such leave under two different
theories: the “interference” or “entitlement” theory, under which employers may not
“interfere with, restrain, or deny the exercise of or the attempt to exercise” FMLA rights,
29 U.S.C. § 2615(a)(1); and the “retaliation” or “discrimination” theory, under which
employers may not “discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful” by the FMLA, § 2615(a)(2). See
Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Branham filed suit
No. 09-6149 Branham v. Gannett Satellite Information Network Page 7
under both theories, alleging that Gannett interfered with her FMLA rights by denying
her leave and retaliated against her for taking leave by terminating her.
To prevail on either her interference claim or her retaliation claim, Branham must
prove that she was entitled to FMLA leave. See Novak v. MetroHealth Med. Ctr., 503
F.3d 572, 577–78 (6th Cir. 2007); Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir.
2006). The essence of Gannett’s summary-judgment argument is that she cannot
establish this entitlement.
Gannett advances two bases on which to affirm the district court’s judgment.
First, it contends that Branham cannot prove that she had a serious health condition that
prevented her from performing the functions of her job—reasoning on which the district
court ultimately did not rely. Second, Gannett reiterates the argument accepted by the
district court, that Gannett was entitled to terminate Branham for excessive absenteeism
on the basis of the negative certification received from Dr. Singer. We address each in
turn.
1. Whether Branham Can Prove a “Serious Health Condition”
As noted, Branham cannot prevail on her interference or retaliation claims unless
she sought leave for an FMLA-qualifying reason, namely, that she had a “serious health
condition” that prevented her from doing her job. 29 U.S.C. § 2612(a)(1)(D). The
FMLA defines “serious health condition” as “an illness, injury, impairment, or physical
or mental condition that involves (A) inpatient care . . . or (B) continuing treatment by
a health care provider.” 29 U.S.C. § 2611(11). Branham does not contend that she ever
required inpatient care, so her claim turns on her need for continuing treatment.
Department of Labor regulations define “continuing treatment” as “[a] period of
incapacity (i.e., inability to work . . . ) of more than three consecutive calendar days, and
any subsequent treatment or period of incapacity relating to the same condition, that also
involves: (A) [t]reatment two or more times by a health care provider . . . or
(B) [t]reatment by a health care provider on at least one occasion which results in a
No. 09-6149 Branham v. Gannett Satellite Information Network Page 8
regimen of continuing treatment under the supervision of the health care provider.”
29 C.F.R. § 825.114(a)(2)(i) (2006) (amended 2009) (emphasis omitted).1
Gannett argues that Branham cannot prove that her condition involved
“continuing treatment” because she cannot establish that she was incapacitated for a
period of more than three days. This argument is unavailing. To be sure, Branham
admitted in her deposition that she was not sick on Tuesday, November 7, or
Wednesday, November 8, days on which she missed work in order to care for her son.
She further admitted that she either performed some work or did not work but was “not
incapacitated” on every day on which her office was open between Tuesday, November
14, and Tuesday, November 28. Dist. Ct. Document (“Doc.”) 35-1 (Branham Dep. at
148–51). This testimony cannot be construed as a legal admission, however. Branham
agreed that she was “not incapacitated” only after the following exchange with defense
counsel:
Q: And then on the 15th you say you worked from home, true?
A: True.
Q: But you were not incapacitated, true?
A. I still wasn’t feeling well.
Q: I understand, but you weren’t incapacitated. You obviously were
able to do some work, true?
A: True.
Doc. 35-1 (Branham Dep. at 149) (emphases added). Plainly, Branham understood
defense counsel’s use of the word “incapacitated” to refer to the inability to do any
work.2 In fact, “incapacity” refers to the inability to “perform the functions of the
position of such employee,” 29 U.S.C.§ 2612(a)(1)(D), which in turn is defined as being
“unable to work at all or . . . unable to perform any one of the essential functions of the
1
The Department of Labor recently promulgated revised regulations interpreting the FMLA.
Those regulations took effect on January 16, 2009, after the events giving rise to this suit occurred. See
73 Fed. Reg. 67934. Therefore, we apply the regulations in place at the time of the events in question.
See Morris v. Family Dollar Stores of Ohio, Inc., 320 F. App’x 330, 336 n.9 (6th Cir. 2009) (unpublished
opinion).
2
Revealingly, in another part of her deposition, Branham testified that she “was still out of it
pretty much most of the day on the 14th,” that she was incapacitated on November 15, and that she was
not “feeling up to par” on November 15 or 16. Doc. 35-1 (Branham Dep. at 102).
No. 09-6149 Branham v. Gannett Satellite Information Network Page 9
employee’s position,” 29 C.F.R. § 825.115 (2006) (amended 2009). That is, a person
can be incapacitated despite being able to do some of her regular work. Here, the very
basis of Branham’s suit is that she was not able to perform the essential functions of her
job throughout the period of her absences in November 2006. She submits her
testimony, her medical records, and Nurse Practitioner Seefeldt’s certification as
evidence of that incapacity.3
Even if Branham’s deposition testimony were viewed as preventing her from
arguing incapacity from November 14 through 28—which, to reiterate, it does
not—Branham consistently has maintained that she was incapacitated between
Thursday, November 9, and Monday, November 13. That Thursday, she left Buhler a
voicemail message indicating that she was sick; that Friday, she left Buhler another
voicemail message indicating that her migraines were keeping her home; then, her
“migraine was so bad [that she] had been in bed for the entire weekend and could not
tolerate any light or sound,” Doc. 35-1 (Branham Dep. at 79); and the following
Monday, Branham’s husband informed Gannett that he was taking her to the doctor.
These facts indicate that Branham was incapacitated for five consecutive calendar days.
Gannett points to different evidence: a document from Branham’s medical records in
which Dr. Singer listed the duration of Branham’s illness as “2 days.” Doc. 35-6 at 78
(Medical Records). But Branham does not accept Dr. Singer’s evaluation and provides
her own testimony and a conflicting medical opinion in support of her position. This is
the essence of a factual dispute that precludes summary judgment.
In short, Branham has advanced sufficient evidence to create a genuine issue of
material fact on the incapacity element of the “continuing treatment” requirement.
Gannett next argues that Branham cannot establish “continuing treatment”
because she cannot show that she was treated by a health care provider twice within her
3
Gannett argues that Seefeldt’s certification “is nonsensical on its face” because it “purports to
certify Branham for a condition commencing on May 6, 2006, and continuing through November 28,
2006,” a period during which Branham showed up to work most of the time. Appellee’s Br. at 14 n.6.
This is an argument that Seefeldt’s certification is unpersuasive. It is an argument that can be made at trial
to a jury, which reasonably could rely on Seefeldt’s certification and the rest of Branham’s evidence that
her illnesses prevented her from performing the functions of her job.
No. 09-6149 Branham v. Gannett Satellite Information Network Page 10
period of incapacity or that a regimen of continuing treatment resulted from the single
doctor’s visit she did have. Again, Gannett is wrong on both counts.
First, there is evidence that Branham was treated by two health care providers
during her period of incapacity: Dr. Singer on November 13, and Nurse Practitioner
Seefeldt on November 28. The issue is whether the Seefeldt visit qualifies as a
“treatment . . . by a health care provider” under 29 C.F.R. § 825.114(a)(2)(i) (2006). The
regulations’ definition of “treatment” states that the term “includes (but is not limited to)
examinations to determine if a serious health condition exists and evaluations of the
condition.” 29 C.F.R. § 825.114(b) (2006). Seefeldt’s certification includes several
diagnoses, reflecting that some sort of examination took place, and Gannett appears to
acknowledge as much. See Appellee’s Br. at 14 n.6 (stating that Branham was “seen by”
Seefeldt). The regulations also define a “health care provider” to include nurse
practitioners such as Seefeldt. 29 C.F.R. § 825.118(b)(2) (2006).
It is irrelevant that Branham saw Seefeldt after Gannett received Dr. Singer’s
negative certification and after Gannett terminated her. At this stage of the analysis, the
question is not whether Gannett was entitled to terminate Branham when it did based on
the FMLA’s certification requirements—an issue we discuss below—but rather whether
Branham can prove that she suffered from a “serious health condition.” That is, the
question is whether Branham can prove to a jury that she received “continuing
treatment” by showing that she received “[t]reatment two or more times by a health care
provider.” 29 C.F.R. § 825.114(a)(2)(i)(A) (2006). The only timing requirement
relevant to this inquiry is that the second treatment must occur during the same period
of incapacity as the first, defined to include the original period of more than three
consecutive calendar days of incapacity and any subsequent period of incapacity relating
to the same condition. See id.; Jones v. Denver Pub. Schs., 427 F.3d 1315, 1321–23
(10th Cir. 2005). Branham saw Nurse Practitioner Seefeldt about the same medical
issues for which she saw Dr. Singer: migraines, anxiety, depression, and insomnia.
Thus, taken in the light most favorable to Branham, the evidence indicates that she was
treated by Dr. Singer and Nurse Practitioner Seefeldt, both qualified health care
No. 09-6149 Branham v. Gannett Satellite Information Network Page 11
providers, during the same period of incapacity, which exceeded three days. This is
enough to show a genuine issue of material fact regarding whether Branham suffered
from a “serious health condition involving continuing treatment,” 29 C.F.R.
§ 825.114(a)(2) (2006), rendering summary judgment inappropriate.
Second, Branham may also be able to use her examination by Seefeldt to show
a “serious health condition” based on “[t]reatment by a health care provider on at least
one occasion which result[ed] in a regimen of continuing treatment under the supervision
of the health care provider.” 29 C.F.R. § 825.114(a)(2)(i)(B) (2006). Seefeldt’s
certification indicates under the heading “Regimen of Treatment” that Branham required
“greater than 5” physician visits, including “several appointments with orthopedist,
ob/gyn, and [primary care physician] over the next month and a half for surgery,
medication adjustments, injections.” Doc. 28-2 at 3 (Seefeldt Cert.). Seefeldt also wrote
that she anticipated referring Branham to additional health care providers, that Branham
would need to work less than her normal schedule, and that she could return to full duty
on January 1, 2007. Branham testified in her deposition that she did see other physicians
after this visit, including an obstetrician/gynecologist to investigate whether her
migraines were hormonal and to treat fibroids, an orthopedist for a cyst on her wrist and
her trigger-finger condition, and her primary-care physician, Dr. Peters, for her
migraines and insomnia. Thus, this evidence of a regimen of continuing treatment
following the Seefeldt visit also precludes summary judgment.
2. Whether Gannett Could Terminate Branham on November 24,
2008, Based on Dr. Singer’s Certification
Gannett’s second argument for summary judgment is its theory that the FMLA
permitted it to terminate Branham based on her failure to present a medical certification
of her incapacity. To assess this argument, we review the regulatory framework in
which the certification requirement exists.
To claim FMLA leave when the circumstances giving rise to the need for such
leave are not foreseeable, an employee must give notice to her employer “as soon as
practicable under the facts and circumstances of the particular case.” 29 C.F.R.
No. 09-6149 Branham v. Gannett Satellite Information Network Page 12
§ 825.303(a) (2006). “The employee need not expressly assert rights under the FMLA
or even mention the FMLA.” Id. § 825.303(b) (2006). She “gives sufficient notice
when [she] provides enough information for the employer to reasonably conclude” that
leave is needed for a serious health condition. Perry v. Jaguar of Troy, 353 F.3d 510,
513 (6th Cir. 2003). After an employee gives notice, “[a]n employer may require that
a request for leave . . . be supported by a certification issued by the health care provider
of the eligible employee.” 29 U.S.C. § 2613(a). Such a request for medical certification
must be in writing and must detail the employee’s specific obligation to provide
certification and the consequences of failing to do so. 29 C.F.R. §§ 825.301(b)(1)(ii),
825.305(d) (2006) (amended 2009); Perry, 353 F.3d at 514. The request may be oral
only if (1) the employee handbook or other written policy documents (if they exist)
clearly provided that medical certification would be required, and (2) the employee
sought FMLA leave some time in the previous six months and received written notice
of the medical-certification requirement at that time. 29 C.F.R. § 825.301(c)(2)(ii)
(2006); Frazier v. Honda of Am. Mfg., Inc., 431 F.3d 563, 566 (6th Cir. 2005).
The FMLA requires an employee to deliver the certification “in a timely
manner.” 29 U.S.C. § 2613(a). The regulations specify that when leave is
unforeseeable, the employer must give the employee at least fifteen calendar days to
provide the requested certification, and more time if it is not practicable under the
circumstances to do so within fifteen days. 29 C.F.R. § 825.305(b). “If an employee
fails to provide a medical certification within” the period of fifteen days (or longer,
depending on the circumstances), “the employer may delay the employee’s continuation
of FMLA leave.” 29 C.F.R. § 825.311(b) (2006) (amended 2009). “If the employee
never produces the certification, the leave is not FMLA leave.” Id. If, on the other hand,
the employer terminates the employee before giving her the full fifteen-day period to
provide a certification, the employer has violated the FMLA. Killian v. Yorozu Auto.
Tenn., Inc., 454 F.3d 549, 555 (6th Cir. 2006).
Gannett contends (1) that Branham was required to provide a medical
certification supporting her need for FMLA leave; (2) that before the fifteen-day period
No. 09-6149 Branham v. Gannett Satellite Information Network Page 13
expired, Branham’s doctor provided a certification indicating that Branham did not
require leave; and (3) that Gannett was entitled to rely on that negative certification and
was not required to allow Branham the remainder of the fifteen-day period to secure a
second certification supporting her claim for leave. Branham responds that she disputed
Dr. Singer’s assessment and that the FMLA guaranteed her fifteen days to secure a
second opinion. The parties thus focus our attention on an issue of first impression in
this circuit: when an employee provides a negative certification—that is, a certification
indicating that she does not have a serious health condition that prevents her from
performing her job—must the employer wait the full fifteen days prescribed by
regulation before denying leave on the basis of that negative certification?
The district court answered this question “no.” It relied primarily on Nawrocki
v. United Methodist Retirement Communities, Inc., 174 F. App’x 334 (6th Cir. 2006)
(unpublished opinion), which upheld summary judgment for an employer that terminated
an employee for absenteeism after the employee’s doctor submitted a certification form
listing various medical conditions but indicating that the employee would not need to
miss work. Nawrocki, however, does not resolve the question presented in the case at
bar. First, Nawrocki was an unpublished and nonprecedential opinion. Second, the
opinion held only that “an employer is entitled to rely on a ‘negative certification’ in
denying FMLA leave,” id. at 338; the employee there did not claim that the employer
had violated the fifteen-day requirement, and the opinion made no mention of the
requirement at all. Third, Nawrocki’s holding relied entirely on Stoops v. One Call
Communications, Inc., 141 F.3d 309 (7th Cir. 1998), which likewise did not involve the
fifteen-day requirement and which included language in tension with the conclusion of
the district court in the instant case. See Stoops, 141 F.3d at 313 (observing that
“nothing in the [FMLA] or regulations limits the employee’s ability to produce a medical
opinion that contradicts a prior negative certification originally provided by the
employee”). Thus, the issue presented by the parties remains unresolved in this circuit.
We need not decide the issue today, however, because there is an independent
fatal flaw in Gannett’s argument for summary judgment. Branham satisfied her
No. 09-6149 Branham v. Gannett Satellite Information Network Page 14
notification requirement on November 13, 2006, when she asked Buhler “about taking
leave, because [she] still wasn’t feeling well and had numerous doctors’ appointments
scheduled for November and December.” Doc. 35-1 (Branham Dep. at 88) (internal
quotation marks omitted). But Gannett never properly triggered the additional duty to
provide a medical certification supporting her claim. The district court found that
Gannett requested certification on November 13, the day on which Buhler told Branham
over the phone to come to the office and sign a short-term-disability form to “see if she
qualified for anything.” Doc 28-3 (Buhler Dep. at 51). In her deposition, however,
Buhler testified that “Michele and I never at any time discussed FMLA leave.” Doc 28-
3 (Buhler Dep. at 54). It is true that Gannett’s short-term-disability form doubled as its
FMLA leave form, but it is clear that Buhler communicated to Branham no information
about the FMLA certification requirement, the fact that such certification was due within
fifteen days, or the consequences of failing to return an adequate certification. Doc. 28-3
(Buhler Dep. at 58) (stating that she did not provide Branham a deadline); Doc 28-4
(Kling Dep. at 40–41) (stating that Buhler should have provided this information). Even
if Buhler had conveyed all the appropriate information, her oral request would have been
insufficient to activate Branham’s certification duty because there is no evidence that
Branham requested leave and received written notification of the requirement in the
previous six months,4 or that the requirement appeared in the employee handbook that
Branham should have received when she first joined Gannett in November 2003. See
Doc. 28-4 (Kling Dep. at 13–21) (reading sections of handbook about FMLA but not
mentioning certification requirement).
We therefore must conclude that Gannett was not entitled to delay or deny leave
to Branham on the basis of the certification requirement. “Because there is no evidence
that defendant requested medical certification pursuant to the requirements of the
FMLA,”—and, in fact, all the evidence confirms that Gannett did not make a proper
request—“[Branham’s] failure to provide medical certification does not support
4
Nancy Kling, who testified as a Federal Rule of Civil Procedure 30(b)(6) witness for The
Dickson Herald, stated that “Branham used the FMLA the first time that she was employed by us, so I
would think that she was familiar with the procedure.” Doc. 28-4 (Kling Dep. at 15). That request for
leave, however, took place well over six months before the November 2006 request.
No. 09-6149 Branham v. Gannett Satellite Information Network Page 15
summary judgment for defendant.” Perry, 353 F.3d at 514. Because Branham’s own
testimony constitutes sufficient evidence to establish a genuine issue whether she
suffered from a serious health condition that prevented her from doing her job, this case
must be remanded for a jury to decide whether she was entitled to leave under the
FMLA.
III. CONCLUSION
For the reasons explained above, we hold that the district court erred when it
granted summary judgment to Gannett based on the submission of a negative medical
certification indicating that she could return to work. Branham has produced sufficient
evidence to create a genuine issue of material fact about her entitlement to FMLA leave,
and Gannett was not permitted to deny her leave based on the certification requirement
when it never properly requested certification or informed her of the consequences of
failing to provide the same, as required by Department of Labor regulations.
Accordingly, we REVERSE the district court’s grant of summary judgment to Gannett
and REMAND the case for further proceedings consistent with this opinion.