Perry v. Jaguar of Troy

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 30, 2003
• Docket: 02-1816
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Perry v. Jaguar of Troy No. 02-1816 ELECTRONIC CITATION: 2003 FED App. 0459P (6th Cir.) File Name: 03a0459p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: William S. Stern, Southfield, Michigan, for FOR THE SIXTH CIRCUIT Appellant. Patrice S. Arend, JAFFE, RAITT, HEUER & _________________ WEISS, Detroit, Michigan, for Appellee. ON BRIEF: William S. Stern, Southfield, Michigan, for Appellant. JEFFREY PERRY , X Patrice S. Arend, Melanie T. LaFave, JAFFE, RAITT, Plaintiff-Appellant, - HEUER & WEISS, Detroit, Michigan, for Appellee. - - No. 02-1816 _________________ v. - > OPINION , _________________ JAGUA R OF TROY, assumed - name for Somerset Auto - RALPH B. GUY, JR., Circuit Judge. Plaintiff, Jeffrey Collection, Inc., - Perry, appeals from the grant of summary judgment in favor Defendant-Appellee. - of defendant, Jaguar of Troy, in this case brought under the - Family Medical Leave Act (FMLA). 29 U.S.C. §§ 2601- N 2654. Perry claims that defendant violated the FMLA by Appeal from the United States District Court refusing to allow him to return to his employment after taking for the Eastern District of Michigan at Detroit. leave to care for his son who has learning disabilities. No. 01-74015—Anna Diggs Taylor, District Judge. Specifically, Perry argues that the district court erred when it held that he had not given sufficient notice and that his son Argued: December 2, 2003 did not have a serious health condition. After review of the arguments, the record, and the applicable law, we affirm. Decided and Filed: December 30, 2003 I. Before: GUY and GILMAN, Circuit Judges; REEVES, Perry was employed by defendant as an auto parts counter- District Judge.* person when he sought leave in the summer of 2001 to care for his 13-year-old son, Victor Perry. Victor had been diagnosed with learning disabilities, attention deficit disorder (ADD), and attention deficit hyperactivity disorder (ADHD). Victor took medication to treat his impulse control problems. He visited a doctor every six months to check his physical condition and the effect of the drugs. * The Hono rable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by designation.

1 No. 02-1816 Perry v. Jaguar of Troy 3 4 Perry v. Jaguar of Troy No. 02-1816

Victor was certified as “Educable Mentally Impaired.” A care.” There was no reference to the FMLA or Victor’s school evaluation noted that he needed to “curb impulsive special needs, and no medical certification was provided. behavior.” Victor functioned at a third-grade level in reading Perry testified in his deposition, however, that he orally told and a second-grade level in written language skills. Perry Manarv that he was asking for leave under the FMLA, which testified that Victor could brush his teeth and feed and dress he had read about in the employee handbook. Manarv himself. Victor rode the bus to and from school and attended “basically said okay,” and there was no discussion about a class for emotionally and mentally impaired students during whether his position would be available at the end of the the school year. When not in school, Victor played video leave. games, watched television, and played with neighborhood kids. He also rode his bike and swam. After school, he On June 29, 2001, approximately two weeks after Perry’s stayed with a neighbor or went to the after-school day care leave began, defendant’s office manager sent a letter to Perry program. that stated:

Prior to 2001, Victor was either watched by his mother or This letter is to inform you that your leave of absence is other family members during the summer months. Victor’s not considered under The Family and Medical Leave act mother was unable to watch him in the summer of 2001 of 1993, please see attached for the eligibility because of her work schedule, and the family was forced to requirements. consider other arrangements. In his affidavit, Perry stated that Victor must be constantly monitored for safety reasons and to You currently have benefits through AFLAC, we are ensure that his behavior is socially acceptable. He also stated informing them that you are on a leave of absence, and that they were unable to find affordable day care that would that they should bill you at your home. This became meet Victor’s need for full-time attention from a child care effective on June 18, 2001. provider in a “very controlled environment.” Please call if you have any questions. The defendant’s employee handbook required medical certification for FMLA leave: At the end of the summer, Perry contacted his supervisor about returning to work. He was informed that his position Employees taking a leave under this policy are required had been filled, and that no other positions were available. to provide a medical certification of the condition and the Perry thereafter brought this action seeking reinstatement and need for the leave from the health care provider. damages under the FMLA. The district court granted Certification forms should be obtained from the Office defendant’s motion for summary judgment. This appeal Manager. followed.

Perry testified in his deposition that he told his supervisor, II. Doug Manarv, at least two months before he wanted the leave that he needed to take time off to watch Victor. On April 4, We review the grant of summary judgment de novo. Smith 2001, Perry submitted an Employee Requested Time Off v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary Form. Perry gave notice that he would not work from judgment is appropriate when there are no issues of material June 13 until August 27, 2001, for the stated reason of “child fact in dispute, and the moving party is entitled to judgment No. 02-1816 Perry v. Jaguar of Troy 5 6 Perry v. Jaguar of Troy No. 02-1816

as a matter of law. FED . R. CIV . P. 56(c). The moving party that an event described in § 2613(a)(1) has occurred. See bears the initial burden of showing the absence of a genuine Brohm, M.D. v. JH Props., Inc., 149 F.3d 517, 523 (6th issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. Cir.1998). 317, 323 (1986). The burden then shifts to the nonmoving party to come forward with evidence showing that there is a Perry argues that his employer was aware of his son’s genuine issue for trial. See Anderson v. Liberty Lobby, Inc., health condition because he discussed it often at work and 477 U.S. 242, 256 (1986). There is no genuine issue for trial because his son had visited the dealership in the past. Perry unless the nonmoving party has produced enough evidence to also testified in his deposition that he specifically mentioned enable a jury to return a verdict for that party. Id. at 249. In the FMLA when he discussed the intended leave with his deciding a motion for summary judgment, the court must supervisor. On this record, it appears that defendant was draw all reasonable inferences in favor of the nonmoving given enough information reasonably to conclude that Perry party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 was asking for leave under the FMLA. In any event, it is U.S. 574, 587 (1986). clear that at some point defendant knew, or at the very least presumed, that Perry was requesting leave that might qualify Under the FMLA, an eligible employee is entitled to under the FMLA because it responded by denying FMLA receive 12 workweeks of leave during any 12-month period leave. Thus, defendant is not entitled to summary judgment to, among other things, care for a spouse, son, daughter, or because of deficiencies in Perry’s notice. parent if the spouse, son, daughter, or parent has a serious health condition. 29 U.S.C. § 2612(a)(1). Upon return from B. Medical Certification an FMLA leave, the employee is entitled to reinstatement to the same or an equivalent position without the loss of benefits Defendant also argues that it properly denied FMLA leave (with some limited exceptions not applicable here). 29 because Perry did not provide medical certification as U.S.C. § 2614. It is “unlawful for any employer to interfere required under the employee handbook. If the employee fails with, restrain, or deny the exercise of or the attempt to to provide requested medical certification, the leave does not exercise, any right provided under” the FMLA. 29 U.S.C. qualify as FMLA leave. 29 C.F.R. § 825.311(b). The § 2615(a)(1). regulations, however, state that when an employee first asks for FMLA leave, the employer must give specific written A. Notice notice of the employee's obligations, including the duty to provide medical certification and the consequences for failing The defendant argues that summary judgment was proper to do so. 29 C.F.R. § 825.301(c)(2).1 In addition, certification because Perry did not provide sufficient notice since the written form did not reference the FMLA or Victor’s health condition. To qualify for FMLA leave, the employee must give not less than 30-days’ notice if the necessity for the leave 1 “Except as pro vided in subp aragraph (ii), if the emp loyer is is foreseeable. 29 U.S.C. § 2612(e). An employee is not requiring medical certification . . . , written no tice of the requirement shall required to expressly assert his right to take leave under the be given with respe ct to each em ployee notice of a need for leave.” FMLA. 29 C.F.R. § 825.302(c) (2002). We have recognized 29 C.F.R . § 82 5.30 1(c)(2)(i). Subsequent written notifications are not that an employee gives sufficient notice when he provides required if no tice is given after the employee first requests leave and the enough information for the employer to reasonably conclude employee handboo k clearly provides that certification is required. 29 C.F.R. § 82 5.301(c)(2)(ii). No. 02-1816 Perry v. Jaguar of Troy 7 8 Perry v. Jaguar of Troy No. 02-1816

must be requested each time it is required. 29 C.F.R. health condition, treatment therefor, or recovery § 825.305(a).2 therefrom), or any subsequent treatment in connection with such inpatient care; or Even though the need for medical certification was stated in defendant’s employee handbook, the regulations required (2) Continuing treatment by a health care provider . . . . defendant again to ask for certification after Perry told his supervisor he wanted leave to watch his son over the summer. 29 C.F.R. § 825.114(a) (emphasis in original). It is unclear on this record whether defendant requested certification after receiving Perry’s notice and before denying “Continuing treatment by a health care provider” includes, FMLA leave. Because there is no evidence that defendant in pertinent part: requested medical certification pursuant to the requirements of the FMLA, Perry’s failure to provide medical certification (i) A period of incapacity (i.e., inability to work, attend does not support summary judgment for defendant. school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery C. Serious Health Condition therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity Perry has a cause of action under FMLA only if Victor had relating to the same condition, that also involves: a serious health condition that required Perry’s care. See Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111- (A) Treatment two or more times by a health care 12 (6th Cir. 1997). The FMLA defines a serious health provider, by a nurse or physician's assistant under direct condition as an illness, injury, impairment, or physical or supervision of a health care provider, or by a provider of mental condition that involves (1) inpatient care in a hospital, health care services (e.g., physical therapist) under orders hospice, or residential medical care facility; or (2) continuing of, or on referral by, a health care provider; or treatment by a health care provider. 29 U.S.C. § 2611(11). The regulations go on to define a serious health condition as (B) Treatment by a health care provider on at least one an illness, injury, impairment, or physical or mental condition occasion which results in a regimen of continuing that involves: treatment under the supervision of the health care provider. (1) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including .... any period of incapacity (for purposes of this section, defined to mean inability to work, attend school or (iii) Any period of incapacity or treatment for such perform other regular daily activities due to the serious incapacity due to a chronic serious health condition. A chronic serious health condition is one which:

2 (A) Requires periodic visits for treatment by a health “An emp loyer m ust give notic e of a requirement for medical care provider, or by a nurse or physician’s assistant under certification each time a certification is required; such notice must be direct supervision of a health care provider; written notice whenever required by § 825.301. An employer’s oral request to an emp loyee to furnish any sub sequent medical certification is sufficient.” 29 C.F.R. § 825.305(a). No. 02-1816 Perry v. Jaguar of Troy 9 10 Perry v. Jaguar of Troy No. 02-1816

(B) Continues over an extended period of time In support of its motion for summary judgment, defendant (including recurring episodes of a single underlying presented evidence that Victor was able to attend school and condition); and engaged in the same daily activities in which most children engage: riding the bus to and from school, riding bikes, (C) May cause episodic rather than a continuing period swimming, playing video games, watching television, and of incapacity (e.g., asthma, diabetes, epilepsy, etc.). playing with neighborhood friends. The burden then shifted to Perry to come forward with evidence showing that Victor (iv) A period of incapacity which is permanent or long- was in fact incapacitated. term due to a condition for which treatment may not be effective. The employee or family member must be Perry argues that Victor was incapacitated because he could under the continuing supervision of, but need not be not perform regular daily activities when compared to other receiving active treatment by, a health care provider. children without ADD and ADHD. Perry, however, points to Examples include Alzheimer’s, a severe stroke, or the no evidence to support this conclusory claim that Victor could terminal stages of a disease. not perform regular daily activities.3 The fact that a child with learning disabilities does not function at the same level 29 C.F.R. § 825.114(a)(2) (emphasis in original). as a child of the same age without learning disabilities sheds Perry argues that Victor had a chronic or permanent serious health condition because he was under the periodic treatment of a physician. Perry offered evidence that Victor was seeing 3 Defendant objected to the do cuments attached to Pe rry’s response a doctor every six months to check his physical condition and to the mo tion for summ ary jud gment. After defendant filed its reply brief, the effect of the medications. Defendant argues that Victor Perry filed a Supp lemental Affidavit which stated that the documents was not receiving treatment because he did not see a doctor in were copies of records from Victor’s school and medical files. Federal the summer of 2001. Treatment “includes (but is not limited Rule of Civil Procedure 56 requires the plaintiff to present evidence of evidentiary quality that demonstrates the existence of a genuine issue of to) examinations to determine if a serious health condition material fact. Examp les of such evidence include ad missible documents exists and evaluations of the condition.” 29 C.F.R. or attested testimony, such as that found in affidavits or depositions. The § 825.114(b). Absences attributable to a chronic serious proffered evidence need not be in admissible form, but its content must health condition under 29 C.F.R. § 825.114(a)(2)(iii) qualify be adm issible. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135 , 145 for FMLA leave even if the employee or family member does (6th Cir. 1997). Defendant argues that the affidavit was untimely and was not sufficient to authenticate the documents. M ost of the documents are not receive treatment from a health care provider during the far removed in date from 2001 and, therefore, are not relevant to Victor’s absence. 29 C.F.R. § 825.114(e). health cond ition in the summer of 2001. Two school reports are dated 2000 and 2001. They note that the clarity of Victor’s speech decreases Even if Victor’s biannual doctor visits constitute treatment, during spontaneous speech because of his rapid delivery, but note that one however, Perry must also present evidence that Victor was of Victor’s strengths is his ability to communicate thoughts and engage incapacitated in the summer of 2001. In order to have had a in conversations with peers and adults. The 2000 repo rt notes “d ifficulty” in gross motor and fine motor coordination, but the 2002 report notes that serious health condition, whether chronic or permanent, Victor participates in regular physical education classes. Thus, regardless Victor must have been unable to work, attend school, or of whether these documents can b e con sidered on summ ary jud gment, perform other regular daily activities during the period of they do not address the question in this case: Did Victo r’s health Perry’s leave. condition render him unable to work, attend school, or perform regular daily activities? No. 02-1816 Perry v. Jaguar of Troy 11

no light on whether that child can perform regular daily activities. Perry also argues that Victor was incapacitated because he could not attend a regular day camp. Perry claims that Victor needed extraordinary supervision. A younger child with no learning disabilities, however, may also require more supervision. The comparative amount of supervision a child needs standing alone does not address the child’s ability to engage in regular daily activities. The examples of behavior requiring extra monitoring given by Perry in his affidavit, if anything, refute Perry’s claim that Victor could not engage in regular daily activities. Victor was found peeking into the windows of neighbors, biking on the service drive of a freeway, and making numerous telephone calls to video game companies. Even viewing the facts in a light most favorable to Perry, we cannot find that there is enough evidence in this record to enable a jury to reasonably conclude that Victor was incapacitated in the summer of 2001 and, thus, had a serious health condition qualifying Perry for an FMLA leave. AFFIRMED.