Novak v. MetroHealth Medical

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0398p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

DONNA NOVAK,

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No. 06-3036

v.

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METROHEALTH MEDICAL CENTER, -

Defendant-Appellee. -

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 04-02253—Ann Aldrich, District Judge.

Argued: November 1, 2006

Decided and Filed: September 28, 2007

Before: MERRITT and BATCHELDER, Circuit Judges; HEYBURN, Chief District Judge.*

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COUNSEL

ARGUED: Richard N. Selby, II, DWORKEN & BERNSTEIN CO., Painesville, Ohio, for

Appellant. Jon M. Dileno, ZASHIN & RICH, Cleveland, Ohio, for Appellee. ON BRIEF: Richard

N. Selby, II, DWORKEN & BERNSTEIN CO., Painesville, Ohio, for Appellant. Jon M. Dileno,

ZASHIN & RICH, Cleveland, Ohio, Mark V. Webber, LITTLER MENDELSON, P.C., Cleveland,

Ohio, for Appellee.

BATCHELDER, J., delivered the opinion of the court. MERRITT, J. (p. 10), delivered a

separate opinion concurring in all sections except for Section II.A.2. HEYBURN, D. J. (p. 11),

delivered a separate opinion concurring in the analysis and result.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. Plaintiff Donna Novak (“Novak”) appeals the

district court’s grant of summary judgment in favor of Defendant MetroHealth Medical Center

(“MetroHealth”) on her employment claims brought under the Family Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601 et seq. Novak argues that MetroHealth illegally denied her request

for FMLA leave, claiming that she was entitled to FMLA leave because her back injury amounted

*

The Honorable John G. Heyburn II, Chief United States District Judge for the Western District of Kentucky,

sitting by designation.

1

No. 06-3036 Novak v. MetroHealth Medical Center Page 2

to a serious health condition under the Act, and alternatively, that she was entitled to FMLA leave

to care for her adult child who was suffering from postpartum depression. Because we conclude that

these claims are not meritorious, we AFFIRM the district court’s grant of summary judgment on

Novak’s claim of FMLA interference. But because we conclude that the district court should have

remanded, rather than dismissed, Novak’s state law claims, we VACATE and REMAND those

claims to the district court with instructions to remand them to the state court from which they were

removed.

I. Background

Novak worked as a financial counselor for MetroHealth. For all relevant periods of her

employment, MetroHealth maintained a no-fault attendance policy that assigned points to employees

based on the employee’s number of hours of unexcused absence. Approved absences such as FMLA

leave were not included in the point total. MetroHealth calculated points on a rolling 12-month time

period, and the attendance policy mandated progressive discipline, culminating in discharge when

an employee accrued 112 points during a 12-month period.

Novak was terminated after she accrued 124 points between April 16, 2003 and April 16,

2004. The final absences resulting in her discharged occurred in late March 2004. During that

period, Novak — pursuant to company policy — called MetroHealth each day she was absent to

provide an explanation. On March 22, she reported that her daughter was having a baby. On March

23, Novak arrived late to work without providing an explanation. On March 24, she stated that she

could not work because of “back pain.” Similarly, on March 25, she reported that her “back was

out.” On Saturday March 27, Novak emailed her supervisor, explaining:

I will need to be off on a[n] emergency [l]eave from Monday 3/29/04 til Thursday

4/1/04. My daughter is suffering from Post Partum [sic] Depression, and her son my

grandchild who is only 5 days old has been readmitted to Metro[H]ealth and both are

in need of my help and expertise NOW. I myself am not doing well[;] I have been

having back problems again. I apologize for any inconviences [sic] this may cause.

Novak called on May 29, alleging that she was “sick,” and on March 30 and 31, claiming that her

daughter and grandson were ill.

Realizing that she had exceeded 112 points under MetroHealth’s attendance policy, Novak

sought FMLA leave for her March 2004 absences,1and on March 30, 2004, she visited Dr. Ashok

Patil (“Dr. Patil”) regarding her lower back injury. Prior to this time, she had been treated by Dr.

Monica Wloszek (“Dr. Wloszek”), who was her physician of record with MetroHealth. Novak

claims that MetroHealth’s Manager Janet Whitney (“Whitney”) told her that the FMLA certification

form must be completed by the physician of record, Dr. Wloszek, rather than by Dr. Patil; however,

Novak’s deposition testimony and affidavit are entirely unclear regarding if or when Whitney told

her that Dr. Wloszek must complete the form.

In early April 2004, Novak sent an FMLA certification form to Dr. Wloszek’s office. Dr.

Wloszek filled out the form and faxed it to MetroHealth, but because Dr. Wloszek had not examined

Novak since October 2003, she omitted required information, such as a description of the medical

facts and the likely duration of Novak’s condition. After learning that the certification was

incomplete, Novak contacted Dr. Wloszek’s assistant, Erika Boda, and insisted that she complete

the remainder of the form and fax it to MetroHealth. Novak told Boda what to write in the empty

1

Novak used the diagnosis from her treatment with Dr. Patil to pursue a workers’ compensation claim. In July

2004, she filed a workers’ compensation claim for aggravation of a previous injury to her lower back, which was granted

by the Bureau. These events form the basis of Novak’s state law claim for workers’ compensation retaliation.

No. 06-3036 Novak v. MetroHealth Medical Center Page 3

spaces, and Boda complied with Novak’s requests without obtaining Dr. Wloszek’s permission.

This was the second FMLA certification form submitted by Dr. Wloszek.

On April 9, 2004, MetroHealth held a “pre-discharge” meeting with Novak and her union

representative to discuss whether her March 2004 absences qualified under the FMLA. Because

MetroHealth questioned the authenticity of Dr. Wloszek’s certification forms, it asked Novak to

execute a release authorizing MetroHealth to contact Dr. Wloszek, and Novak complied with the

request. After a brief discussion between the parties, MetroHealth decided to suspend the meeting

until April 16, allowing Novak another week to submit additional certification forms. Whitney then

contacted Dr. Wloszek to authenticate the previously submitted certification forms. Dr. Wloszek

informed Whitney that she had not treated Novak since October 2003, lacked personal knowledge

of Novak’s March 2004 back problems, and did not complete the entire certification form.

A few days later, on April 12, Novak asked Dr. Wloszek to submit another certification form.

Novak updated Dr. Wloszek on her condition, specifically recounting what Dr. Patil had told her

during her March 30 examination, and Dr. Wloszek completed the form based on this secondhand

information. This was the third certification form submitted by Dr. Wloszek. The next day Dr.

Wloszek contacted Whitney to inform her that Novak had provided the secondhand information used

to complete the third certification form.

During the suspension of the “pre-discharge” meeting, Novak submitted additional

certification forms. One of these forms, completed by Dr. Dianne Schubeck, stated that Novak’s

eighteen-year-old daughter, Victoria Novak (“Victoria”), had given birth on March 22, 2004,

suffered from postpartum depression, and was unable to care for her newborn child, Rafael. Dr.

Schubeck also noted that Victoria’s condition would last for a one-week period, and Novak needed

to assist Victoria in caring for Rafael during this time. Novak also submitted a certification form

completed by Dr. Mary Massie-Story, stating that Rafael was sick and Novak needed to assist with

his care.

When MetroHealth reconvened its “pre-discharge” meeting on April 16, 2004, it determined

that Novak’s March 2004 absences did not qualify for FMLA leave and noted that she had provided

“contradictory information” that did not qualify for leave under any policy. Because Novak’s

absences were not authorized under the FMLA, she was assessed points for all the missed work

hours, and because the points now totaled 124, MetroHealth terminated her under the attendance

policy.

On August 6, 2004, Novak filed suit against MetroHealth in the Cuyahoga County Court of

Common Pleas alleging three counts of employment discrimination under Ohio law. Shortly

thereafter, Novak amended her complaint, adding federal FMLA claims, and MetroHealth removed

the case to federal court. The amended complaint alleged race discrimination under Ohio law,

workers’ compensation retaliation under Ohio law, FMLA interference, and FMLA retaliation.

MetroHealth moved for summary judgment on all Novak’s claims, and the district court granted the

motion. Finding no basis for Novak’s FMLA claims, the court dismissed them with prejudice, and

the court declined to exercise supplemental jurisdiction over the state law claims, dismissing them

without prejudice. Novak filed a timely notice of appeal.

II. Analysis

On appeal Novak raises two arguments. First, she contends that the district court erred in

granting summary judgment to MetroHealth on her claim of FMLA interference. Second, she

No. 06-3036 Novak v. MetroHealth Medical Center Page 4

challenges the district court’s dismissal of her state law claims, arguing that the court should have

remanded those claims to state court.2

A. FMLA Interference Claim

Novak argues that the district court erred by granting summary judgment on her FMLA

interference claim. We review de novo a district court’s grant of summary judgment, using the same

standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en

banc). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). In reviewing a motion for summary judgment, we view the evidence, all facts, and any

inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). “To withstand summary judgment, the non-movant must

show sufficient evidence to create a genuine issue of material fact.” Prebilich-Holland v. Gaylord

Entm’t Co., 297 F.3d 438, 442 (6th Cir. 2002) (citing Klepper v. First Am. Bank, 916 F.2d 337, 342

(6th Cir. 1990)). A mere scintilla of evidence is insufficient; “there must be evidence on which the

jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The FMLA states that “[i]t shall be unlawful for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise any right provided [by this Act].” 29 U.S.C.

§ 2615(a)(1). More specifically, the FMLA prohibits an employer from counting FMLA leave

against an employee under its “no fault” attendance policy. Brenneman v. MedCentral Health Sys.,

366 F.3d 412, 422 (6th Cir. 2004) (citing 29 C.F.R. § 825.220(c)). Employees believing they have

been denied their FMLA rights may assert a cause of action for FMLA interference. Killian v.

Yorozu Auto. Tenn., Inc., 454 F.3d 549, 555 (6th Cir. 2006). To prevail on an FMLA interference

claim, a plaintiff must establish that (1) she was an eligible employee as defined under the FMLA;

(2) her employer was a covered employer as defined under the FMLA; (3) she was entitled to leave

under the FMLA; (4) she gave the employer notice of her intention to take FMLA leave; and (5) her

employer denied FMLA benefits to which she was entitled. Walton v. Ford Motor Co., 424 F.3d

481, 485 (6th Cir. 2005) (citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir.

2003)). The disputed factor in this case is whether Novak was entitled to leave under the FMLA.

Novak presents two bases for her claim of entitlement to FMLA leave. First, she alleges that her

back injury was an FMLA-qualifying condition and that her submitted certification forms

sufficiently established the existence of her condition. Second, she contends that the FMLA

authorizes care for her adult daughter during a temporary bout with postpartum depression. We will

address these arguments in turn.

1. Back Injury as an FMLA-qualifying Condition

The FMLA permits qualifying employees to take twelve weeks of unpaid leave each year

if, among other things, the employee suffers from a “serious health condition that makes [her] unable

to perform the functions of [her] position[.]” 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

(A) inpatient care in a hospital, hospice, or residential medical care facility or (B) continuing

treatment by a health care provider.” 29 U.S.C. § 2611(11). The employer may require an employee

2

Novak does not raise the FMLA retaliation claim on appeal, nor does she raise the merits of her state law

claims.

No. 06-3036 Novak v. MetroHealth Medical Center Page 5

to provide a doctor’s certification confirming the existence of a serious health condition. 29 U.S.C.

§ 2613(a). A doctor’s certification of a serious health condition is sufficient if it states (1) the date

on which the serious health condition began, (2) the probable duration of the condition, (3) the

appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the

employee is unable to perform her job duties. Brenneman, 366 F.3d at 422 (citing 29 U.S.C.

§ 2613(b)). While “the medical certification provided by the employee is presumptively valid if it

contains the required information and is signed by the health care provider,” the employer may

overcome this presumption by showing that “the certification is invalid or inauthentic.” Harcourt

v. Cincinnati Bell Tel. Co., 383 F. Supp. 2d 944, 955-56 (S.D. Ohio 2005) (citing 29 C.F.R.

§ 825.307(a)).

The district court found that the “suspicious and contradictory nature” of Novak’s

certification forms belied her contention that she suffered from a serious health condition. We agree

that Novak’s certification forms were insufficient to establish the existence of a serious health

condition for purposes of FMLA. Dr. Wloszek’s first certification form did not contain the date on

which the serious health condition began, the probable duration of the condition, or the appropriate

medical facts within the health care provider’s knowledge; as a result, this certification was not

sufficient under 29 U.S.C. § 2613(b), and MetroHealth was not required to credit it. Dr. Wloszek’s

second certification form was completed by her assistant at the insistence of Novak and was not

authorized by Dr. Wloszek; because its contents were not authorized by a physician, MetroHealth

satisfied its burden in demonstrating that the certification was not authentic. Finally, Dr. Wloszek’s

third certification form acknowledged that Dr. Patil, not Dr. Wloszek, had treated Novak in March

2004. Moreover, Dr. Wloszek informed MetroHealth that she had not examined Novak since

October 2003, had no personal knowledge of Novak’s current condition, and relied solely on what

Novak relayed about Dr. Patil’s assessment of her condition. Because MetroHealth knew Dr.

Wloszek lacked personal knowledge of Novak’s current condition, MetroHealth satisfied its burden

of showing that the certification was unreliable, and it acted reasonably in refusing to grant FMLA

leave on that basis.

Novak argues that MetroHealth should have advised her of the deficiencies in Dr. Wloszek’s

certification and allowed her a reasonable opportunity to correct them. We have indeed recognized

that an employer who finds an employee’s certification to be “incomplete” has a duty to inform the

employee of the deficiency and provide the employee a “reasonable opportunity” to cure it. Sorrell

v. Rinker Materials Corp., 395 F.3d 332, 337 (6th Cir. 2005) (citing 29 C.F.R. § 825.305(d));

Hoffman v. Professional Med Team, 394 F.3d 414, 418 (6th Cir. 2005) (citing 29 C.F.R.

§ 825.305(d)). Moreover, we have previously recognized that other courts will impose this duty on

employers when the FMLA certification is merely “inadequate,” rather than “incomplete.” See

Sorrell, 395 F.3d at 338 (citing Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1209 n.12

(11th Cir. 2001); Baldwin-Love v. Elec. Data Sys. Corp., 307 F. Supp. 2d 1222, 1234 (M.D. Ala.

2004)).

Assuming without deciding that this “duty” was triggered here, we find that MetroHealth

clearly satisfied its duty to inform Novak that her certification was deficient and to provide her with

a reasonable opportunity to cure the deficiency. At the first “pre-discharge” meeting, MetroHealth

told Novak that Dr. Wloszek’s certification was “insufficient” and obtained Novak’s permission to

contact Dr. Wloszek in order to authenticate it. See 29 C.F.R. § 825.307(a) (“[A] health care

provider representing the employer may contact the employee’s health care provider, with the

employee’s permission, for purposes of clarification and authenticity of the medical certification.”).

MetroHealth also granted Novak an extra week to obtain additional certifications. During the one-

week extension, Novak submitted three more certifications — one from Dr. Schubeck regarding her

daughter’s postpartum depression, one from Dr. Massie-Story regarding her grandson’s illness, and

another from Dr. Wloszek regarding her back injury. Although the regulations do not define what

constitutes a “reasonable opportunity” to cure certification deficiencies, we do not hesitate to hold

No. 06-3036 Novak v. MetroHealth Medical Center Page 6

that MetroHealth satisfied its duty by seeking to authenticate Novak’s previously submitted

certification forms and by permitting Novak to submit three additional forms.

Novak next argues that if MetroHealth was not satisfied with the certification provided by

Dr. Wloszek, it should have sought a second opinion before denying her leave, and having failed to

do so, was precluded from thereafter challenging her certification. The FMLA states that an

“employer [who] has reason to doubt the validity of the [employee’s] certification . . . may require,

at the expense of the employer, that the eligible employee obtain the opinion of a second health care

provider[.]” 29 U.S.C. § 2613(c)(1) (emphasis added). We have previously recognized that the

language in 29 U.S.C. § 2613(c)(1) is “merely permissive” and does not “impose[] an affirmative

duty on an employer.” See Sorrell, 395 F.3d at 337. Other circuits addressing this issue have

similarly found that an employer that foregoes its right to a second opinion is not thereafter

precluded from contesting the validity of an employee’s serious health condition. See Rhoads v.

FDIC, 257 F.3d 373, 386 (4th Cir. 2001) (noting that “the plain language of the [FMLA] does not

suggest that an employer must pursue [a second opinion] or be forever foreclosed from challenging

whether an employee suffered from a serious health condition”); Stekloff v. St. John’s Mercy Health

Sys., 218 F.3d 858, 860 (8th Cir. 2000) (refusing to “read § 2613(c)(1) as requiring an employer to

obtain a second opinion or else waive any future opportunity to contest the validity of the

certification”). But see Sims v. Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d 1253, 1255 (N.D.

Cal. 1998) (holding that “where the employer did not seek a subsequent medical opinion within a

reasonable time period after the employee submitted his initial certification of a serious health

condition, the employer may not now challenge . . . the validity of the initial medical certification

submitted by the employee”). We continue to view the language of 29 U.S.C. § 2613(c)(1) as

merely permissive; therefore an employer’s failure to require a second certification does not

preclude the employer from contesting the employee’s certification. We find Novak’s argument to

the contrary meritless.

Finally, Novak contends that the district court erred in granting summary judgment to

MetroHealth because there is a factual dispute as to whether MetroHealth’s Manager Whitney told

Novak that she must submit a certification form from Dr. Wloszek, rather than her new doctor, Dr.

Patil. She further argues that it is fundamentally unfair for MetroHealth to insist that she obtain

certification from Dr. Wlosezek, who was no longer her treating physician, and then reject that

certification because Dr. Wloszek lacked personal knowledge of her recent back problems. We

conclude that Novak has not created a genuine issue of material fact. In Novak’s deposition,

MetroHealth’s counsel repeatedly asked her about Whitney’s statement that the certification form

must come from Dr. Wloszek. Novak’s responses to these inquiries were wholly inadequate to

create a genuine issue of fact. She evaded nearly every question, and in those few instances where

she was responsive, her answers were virtually unintelligble and utterly contradictory. She first

stated that Whitney told her of the certification requirement on April 9, but this date was after Dr.

Wloszek had already submitted two certification forms on her behalf. Realizing the problematic

timing of this date, Novak attempted to retreat but ultimately failed to give an alternative

explanation. We therefore conclude that her deposition testimony failed to raise a genuine issue as

to this fact.

In any event, this fact is not material to our resolution of this case. Novak never attempted

to submit a certification form completed by Dr. Patil, nor does she indicate that Dr. Patil was willing

to provide such certification. More troubling is the fact that Novak had never visited Dr. Patil before

March 30, but she sought certification for FMLA leave beginning on March 22. Because March 30

is the first time Dr. Patil examined Novak, it is doubtful that he could have attested to her back

condition on March 22. Furthermore, Novak did not complain to MetroHealth of back problems on

March 30 or March 31; instead her stated reason for not reporting to work on those days was that

she needed to care for her daughter and grandson. Therefore, even assuming that MetroHealth

refused to accept certification from Dr. Patil, that fact is immaterial because Novak neither provided

No. 06-3036 Novak v. MetroHealth Medical Center Page 7

certification from Dr. Patil nor indicated that he was willing to provide certification, and given the

timing of Dr. Patil’s treatment of her and her contradictory reasons for missing work, it is doubtful

that he would have been able to provide adequate certification.

We find no error in the district court’s conclusion that Novak was not entitled to FMLA

leave because of a serious health condition.

2. Care for an Adult Child as an FMLA-qualifying Reason to Miss Work

Novak alternatively sought FMLA leave to care for her 18-year-old daughter, Victoria, who

was suffering from a short-term struggle with postpartum depression.3 The FMLA permits an

employee to take leave from work to care for a parent, spouse, or child suffering from a serious

health condition. 29 U.S.C. § 2612(a)(1)(C). The FMLA authorizes leave to care for a child 18

years of age or older only if the child is suffering from a serious health condition and “incapable of

self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12)(B). Notably, Novak did

not provide any evidence or medical certification that Victoria was in fact unable to care for herself;

rather, the certification and Victoria’s testimony all related to Victoria’s difficulty in caring for her

newborn child (i.e., Novak’s grandchild). But the FMLA does not entitle an employee to leave in

order to care for a grandchild. Novak nevertheless contends that her daughter’s temporary bout with

postpartum depression amounted to a “mental or physical disability,” and thus she was entitled to

FMLA leave to care for her. We conclude that Victoria’s postpartum depression did not constitute

a “disability,” as that term is defined under the FMLA, and therefore the FMLA did not authorize

Novak’s leave to care for her.

According to the FMLA regulations set forth by the Secretary of Labor, “physical or mental

disability,” as used in 29 U.S.C. § 2611(12)(B), means a “physical or mental impairment that

substantially limits one or more of the major life activities of an individual,” as these terms are

defined by the regulations for the Americans with Disabilities Act (“ADA”). 29 C.F.R.

§ 825.113(c)(2). In other words, an employee may take FMLA leave to care for an adult child only

if that child is “disabled” for purposes of the ADA. We must therefore evaluate the adult child’s

condition under the ADA statute, regulations, and case law. The issue of whether Victoria is

disabled turns on whether her impairment — i.e., postpartum depression — substantially limited her

in a major life activity.4 The ADA regulations provide that an individual is “substantially limit[ed]”

in a major life activity if she is unable to perform or significantly restricted as to the condition,

manner, or duration in which she performs a major life activity. 29 C.F.R. § 1630.2(j)(1). The term

“substantial” suggests a “considerable” or “large” limitation. Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 196 (2002). When determining whether an individual is substantially

limited in performing a major life activity, courts should consider three factors: (1) the nature and

severity of the impairment; (2) the duration or expected duration of the impairment, and (3) the

permanent or long-term impact of the impairment. 29 C.F.R. § 1630.2(j)(2); see also MX Group,

Inc. v. City of Covington, 293 F.3d 326, 338 (6th Cir. 2002) (noting that an evaluation of “substantial

3

In Victoria’s affidavit, she states that her postpartum depression was preceded and partially caused by the post-

traumatic stress syndrome she experienced after being held-up at gunpoint during the eighth month of her pregnancy.

Because Dr. Schubeck’s certification form attests only to postpartum depression, and not post-traumatic stress syndrome,

we will confine our inquiry accordingly. Even if we were to consider Victoria’s post-traumatic stress syndrome, it would

not affect the outcome of this case because Victoria acknowledged that her post-traumatic stress syndrome, like her

postpartum depression, was short lived, expressly stating that she was “better” within “a couple of weeks.”

4

Novak does not allege which “major life activity” was substantially limited by Victoria’s postpartum

depression. We will assume for purposes of our analysis that Novak intends to argue that Victoria was substantially

limited in the major life activity of caring for herself. See Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 479

(6th Cir. 2005) (noting that major life activities include “functions such as caring for oneself”) (quoting 29 C.F.R.

§ 1630.2(i)).

No. 06-3036 Novak v. MetroHealth Medical Center Page 8

impairment” requires “an assessment of the severity and long-term impact of the impairment”). The

EEOC’s interpretive guidance for the ADA provides that “temporary, non-chronic impairments of

short duration, with little or no long term or permanent impact, are usually not disabilities.” 29

C.F.R. Pt. 1630, App § 1630.2(j). Similarly, the Supreme Court and this circuit have recognized that

an impairment generally must be “permanent or long-term” to qualify as substantially limiting under

the ADA. See, e.g., Toyota Motor, 534 U.S. at 198 (holding that an impairment in performing

manual tasks must be “permanent or long term” in order to qualify as a substantial limitation); Hein

v. All Am. Plywood Co., 232 F.3d 482, 487 (6th Cir. 2000) (noting that “short-term temporary

restrictions on major life activities are generally not disabilities under the ADA”).

We conclude, based on our evaluation of all the relevant factors, that Novak’s daughter,

Victoria, was not substantially limited in any major life activities — such as the activity of caring

for oneself — and therefore was not disabled for purposes of the FMLA. First, Novak has not

presented sufficient evidence for a jury to conclude that Victoria’s impairment was severe. Other

than Dr. Schubeck’s certification form, the sum total of the evidence regarding Victoria’s claimed

disability is her testimony that she could not “follow the doctor’s orders without some help” and that

she was afraid she might “freak out and not know how to deal with a newborn.” This nonspecific,

nonexpert testimony is insufficient grounds upon which to find that Victoria’s impairment was

severe. Second, the undisputed facts clearly show that Victoria’s condition lasted only a week or

two. Dr. Schubeck’s certification form recognized that Victoria’s postpartum depression would last

only for a one-week period, and Victoria’s own affidavit acknowledged that she was “better” within

“a couple weeks.” Such a short-term restriction on a major life activity generally does not constitute

a disability. See Hein, 232 F.3d at 487. Third, Novak has not produced any evidence indicating that

Victoria’s postpartum depression inflicted any permanent or long-term impact on her health. In fact,

the record evidence is to the contrary, demonstrating that Victoria recovered in a short period of

time, and giving no indication that she endured any long-term adverse effects. Because Novak has

not established that her adult daughter suffered from a disability, the FMLA does not authorize

Novak’s leave to care for her.

Novak argues that we should follow the First Circuit’s decision in Navarro v. Pfizer Corp.,

261 F.3d 90, 101 (1st Cir. 2001). Without expressing an opinion on the First Circuit’s decision in

that case, we note that even if we were to adopt the First Circuit’s position in that case, it would not

alter our conclusions here. The court in Navarro declared that the EEOC’s interpretive guidance

for the ADA — stating that temporary, non-chronic impairments of short duration are usually not

disabilities, see 29 C.F.R. Pt. 1630, App § 1630.2(j) — “cannot be applied to the FMLA because it

clashes with the underlying purposes of [that] statute.” Navarro, 261 F.3d at 101. But the Navarro

decision also recognized that “the duration of an impairment is one of several factors that should be

considered in determining the existence of a disability under the FMLA.” Id. at 103 (emphasis

added). Our analysis considered all of the prescribed factors (i.e., severity, duration, and long-term

impact) — not just the temporary, non-chronic nature of Victoria’s impairment — and concluded,

in light of all those factors, that Novak had not produced enough evidence for a jury to find that

Victoria was disabled. Thus, even if we were to adopt Navarro’s invalidation of the EEOC’s

interpretive guidance — an issue that we need not and do not address — it would not compel a

ruling in Novak’s favor.

In short, we note that Congress, when enacting the FMLA, differentiated between children

under the age of 18 and children 18 years of age or older in defining those persons for whose care

an employee is entitled to take leave from work. That difference is defined in terms of “disability.”

See 29 U.S.C. § 2611(12) (defining “child” for purposes of FMLA leave as (1) a child “under 18

years of age” or (2) a child “18 years of age or older and incapable of self-care because of a mental

or physical disability”); S. Rep. No. 103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 24

(recognizing that “in special circumstances, where a child has a mental or physical disability, a

child’s need for parental care may not end when he or she reaches 18 years of age”). Whatever

No. 06-3036 Novak v. MetroHealth Medical Center Page 9

Congress’s reasons for limiting FMLA leave for purposes of caring for one’s child to minor children

or adult children who are disabled, the limitation itself is clear. Here, Novak sought leave to care

for Victoria — her non-disabled adult child — but it is clear, under the statutory system constructed

by Congress, that Novak is not entitled to FMLA leave for such purposes. Accordingly, we find no

error in the district court’s conclusion that Novak was not entitled to FMLA leave.

B. District Court’s Dismissal of Novak’s State Law Claims

After dismissing Novak’s federal FMLA claims, the district court declined to exercise

supplemental jurisdiction over her state law claims. We review for abuse of discretion a district

court’s refusal to exercise supplemental jurisdiction. Landefeld v. Marion Gen. Hosp., Inc., 994

F.2d 1178, 1182 (6th Cir. 1993). A district court may decline to exercise supplemental jurisdiction

over state law claims if it has dismissed all claims over which it had original jurisdiction. 28 U.S.C.

§ 1367(c)(3). “When all federal claims are dismissed before trial, the balance of considerations

usually will point to dismissing the state law claims, or remanding them to state court if the action

was removed.” Musson Theatrical v. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996).

Because the district court dismissed Novak’s federal claims, the court could properly refuse to

exercise supplemental jurisdiction over the pendant state law claims. In cases that have been

removed to federal court, however, we have recognized that “when all federal claims have been

dismissed before trial, the best course is to remand the state law claims to the state court from which

the case was removed.” Thurman v. Daimler Chrysler, Inc., 397 F.3d 352, 359 (6th Cir. 2004).

Because the district court should have remanded Novak’s state law claims, rather than dismissing

them, we vacate the dismissal of her state law claims so that those claims may be remanded to the

state court from whence they came (i.e., the Cuyahoga County Court of Common Pleas).

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in

favor of MetroHealth and the corresponding dismissal of Novak’s FMLA claims. We VACATE

the dismissal of Novak’s state law claims and REMAND to the district court with instructions to

remand those claims to the Cuyahoga County Court of Common Pleas.

No. 06-3036 Novak v. MetroHealth Medical Center Page 10

____________________

CONCURRENCE

____________________

MERRITT, Circuit Judge, concurring. I concur in all of the sections of Judge Batchelder’s

opinion, except for Section II.A.2, concerning the plaintiff’s eligibility for medical leave for caring

for her daughter. I agree with the analysis of the First Circuit in Navarro v. Pfizer Corp., 261 F.3d

90 (1st Cir. 2001). I agree with the First Circuit’s opinion on this subject, but I agree with Judge

Batchelder that, even so, the plaintiff in the instant case does not meet the First Circuit standard.

There is no showing that the depression of the plaintiff’s daughter was of such duration or severity

that it would allow the plaintiff medical leave for caring for her. The plaintiff made out a haphazard

sort of case that does not show a serious medical emergency.

No. 06-3036 Novak v. MetroHealth Medical Center Page 11

____________________

CONCURRENCE

____________________

HEYBURN, Chief District Judge, concurring. I concur in the analysis and result in Judge

Batchelder’s opinion, except that I do not express an opinion concerning the standard adopted in

Section II.A.2. of that opinion. Judge Batchelder adopts a standard whereby short-term restrictions

on major life activities generally do not constitute a disability under the FMLA. Judge Merritt

would adopt the standard set forth in Navarro v. Pfizer Corp., 261 F.3d 90 (1st Cir. 2001). I find

it unnecessary to take either side in order to resolve this case, because I conclude, as have my two

fellow judges, that Novak has met neither standard.