Opinion
CAUSE NO. IP02-0960-C-B/S
January 12, 2004
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on a motion for summary judgment filed by Defendant BorgWarner Diversified Transmission Products, Inc. Plaintiff Julianne Cool filed suit against Defendant for alleged violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., stemming from Defendant's denial of Plaintiff's request for FMLA leave. Defendant moves for summary judgment on the ground that Plaintiff cannot establish certain essential elements of her claims. For the reasons explicated below, we GRANT Defendant's Motion for Summary Judgment.
Factual Background
Plaintiff Julianne Cool ("Cool") worked for Defendant BorgWarner Diversified Transmission Products, Inc. ("BorgWarner") as a registered nurse at its Muncie, Indiana facility. Compl. ¶ 6; Cool Dep. p. 44. On August 10, 2001, Cool received a phone call from her son, William Cool ("William") asking her to come to his home in Georgia to care for his two children (her grandchildren), Wesley, age 8, and Emma, age 7, while he was away at sea with the United States Navy. Id. pp. 55-56. William was scheduled to be deployed on August 24, 2001. Id. pp. 52-53. Cool's assistance in caring for the grandchildren was necessary because William had filed for divorce from his estranged wife, Suzanne Cool ("Suzanne"), an alleged alcoholic to whom, because of her intermittent absences from the household, he could not entrust the care of his children. (The divorce became final on September 20, 2001.) Id. p. 50.
As a result of Cool's agreement to assume the charge of her grandchildren, on August 13, 2001, William signed a "Special Power of Attorney," giving Cool "full authority for the care, custody and control of [his] minor children" as well as the authority "to act in loco parentis" to the children. This special power of attorney was effective from August 24, 2001, to December 1, 2001. Def.'s Cool Dep. Ex. 5.
Also on or about August 13, 2001, a Monday, Cool approached her immediate supervisor, Laura Bowles ("Bowles"), Benefits Manager, about taking time off to care for her grandchildren. Cool was unsure of the exact amount of time-off that she would need, telling Bowles that her son "was usually out to sea for three months at a time," but that she may need up to a one-year leave of absence. Cool Dep. p. 96, 11. 8-9; p. 97, 11. 3-4. During this conversation, Cool mentioned that if her leave request was not granted she would have to resign. Bowles Dep. pp. 15-16. Bowles agreed to speak with Charlene Giles ("Giles"), Vice-President of Human Resources, and Louis Goss ("Goss"), Manager of Employment and Safety, about Cool's leave request, which they denied that same day. Id. pp. 95-96. At Bowles' behest, Cool put her leave request in writing, submitting the following letter to Giles, Goss, and Bowles. (The letter was written on August 13, 2001, was backdated to August 10, 2001, and received on August 14, 2001. Cool Dep. p. 97, 11. 20-23. Henceforth, we will refer to it as the "August 14 letter.")
I am requesting a leave of absence for 3 months — 1 year due to a personal emergency circumstance. My son, William Cool, is scheduled for his last year of sea duty on the USS Louisiana Trident Sub to leave 8/24/01. His wife is an alcoholic and has not been coming home for days at a time. My son has appointed me as guardian of his 2 small children. As he is not able to move them out of state at this time, I will be going to Georgia to care for them. I regret to say that if this request is not granted, I will resign my position as RN. . . . My last day at work will be 8/17/01. I still have 10 vacation days that I would hope could be used as part of my 2-week notice of leaving.
Cool Dep. p. 97-98; Def. Cool Dep. Ex. 2.
In addition, on or about August 14, 2001, Cool left a voicemail for Giles in which she stated her intent to apply for leave under the Family and Medical Leave Act of 1993 ("FMLA"). Cool Dep. p. 98. On August 15, 2001, Giles informed Cool in person that she had received Cool's leave request, but that BorgWarner had already accepted Cool's resignation upon receipt of her letter. Giles Dep. pp. 57-58. Although Cool vigorously disputes that the letter tendered her resignation, she acknowledges that Giles interpreted it as such. Id. pp. 98-99. Immediately after her conversation with Giles, Cool visited Lisa Beard, a clerk in the human resources department, from whom she received paperwork regarding applying for FMLA leave. Id.
Giles disputes that Cool brought up the FMLA at this time, Giles Dep. p. 29, but on summary judgment, we draw all reasonable inferences in favor of the nonmovant, Cool in this case. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997).
Cool left her employ at BorgWarner on Friday, August 17, 2001, and arrived in Georgia two days later, on August 19, 2001. Cool Dep. pp. 51, 59. On August 27, 2001, Cool wrote Dr. Bryan Weatherspoon ("Dr. Weatherspoon"), the grandchildren's pediatrician, "to explain why [she is] seeking FMLA [leave] of 12 weeks for [herself] in relation to [her] grandchildren." The letter describes the grandchildren's symptoms, including crying, sullen acting out and abdominal pain, which Cool believed to be related to stress resulting from their mother's alleged alcoholism, their father's absence, and their parents' divorce. Def. Cool Dep. Ex. 8. On or about August 28, 2001, Cool submitted to BorgWarner two documents entitled Certification of Health Care Provider for a Family Member, one for each grandchild, in which Dr. Weatherspoon stated that: (1) the patient(s) required counseling for "adjustment reaction of childhood," (2) their conditions commenced on August 18, 2001, and would last until approximately November 9, 2001, (3) during such time, it would be necessary for Cool to work less than a full shift, and (4) in response to question 6a ("if leave is required to care for a family member of the employee with a serious health condition . . ."), that the grandchildren required assistance for basic medical care, personal needs, transportation, and therapy. Def.'s Cool Dep. Exs. 6-7.
The medical certifications were received by Goss, who replied in a letter to Cool dated August 31, 2001:
While our understanding was that you had resigned your employment after learning that the Company could not offer you a one-year leave of absence, we have also reviewed the FMLA information you subsequently submitted. . . . In order to clarify the statements made on the two certificates[,] our company physician, Dr. Michael Santoro, contacted Dr. Witherspoon [sic]. . . . According to Dr. Witherspoon, although the children attend counseling twice a week, they are not on any medication, nor are they unable to attend school or perform other daily activities. Based on this information, they are not incapacitated, and therefore, do not have the type of serious health condition indicated on the certification. . . .
Pl.'s Ex. 7 Goss Dep. Goss did not get Cool's permission before he asked Dr. Santoro to contact Dr. Weatherspoon because he believed he did not need it. Goss Dep. 49-50. When asked during a deposition why, if Cool had already resigned, Goss agreed to review her FMLA leave request, he replied that he was honoring their six-year working relationship and giving her the "benefit of the doubt" that perhaps he had missed something in his previous review of her leave request. Id. pp. 54-55.
The grandchildren attended counseling with a child psychologist from approximately September 4, 2001, to November 6, 2001. In the beginning, they went once a week; for the last six weeks, the sessions occurred once every other week. Cool Dep. pp. 79-81. Other than during routine doctor's visits, the children were not treated by another medical provider or hospitalized for any reason. They attended school without accommodation or interruption and participated in several extracurricular activities such as Cub Scouts, dance lessons, and church functions. Id. pp. 82-84.
In preparation for his departure, William prepaid the mortgage on his residence and certain other bills, including the utilities and the children's school expenses, and left money in a savings account to cover other living expenses such as groceries and routine doctor's visits. Cool Dep. pp. 67-71. While the children were in her care, Cool paid for occasional odds and ends, but the children "pretty much had what they needed." Id. p. 71, 11. 12-13.
Cool filed a complaint in this court on June 21, 2002, alleging that BorgWarner "wrongfully denied her claim for leave pursuant to the FMLA, failed to restore [her] after leave, and terminated her employment in violation of rights guaranteed by the FMLA." BorgWarner moved for summary judgment approximately a year later, on July 21, 2003.
Legal Analysis Summary Judgment Standard
Summary judgment is appropriate 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). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests on the moving party, BorgWarner in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the nonmovant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the nonmovant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
FMLA Entitlement Claim
The Family and Medical Leave Act of 1993 ("the FMLA"), 29 U.S.C. § 2601 et seq., establishes two categories of broad protections for employees. At issue in this case are the FMLA's prescriptive protections, which are expressed as substantive statutory rights. See King v. Preferred Tech. Group, 166 F.3d 887, 891 (7th Cir. 1999); Serio v. Jojo's Bakery Restaurant, 102 F. Supp.2d 1044, 1050-51 (S.D.Ind. 2000) (Barker, C.J.). The FMLA provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition as defined by the Act. Id.; see 29 U.S.C. § 2612(a)(1). After the period of qualified leave expires, the employee is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of employment that existed prior to the exercise of the leave. Id; Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 498 (7th Cir. 1999). To ensure the availability of these guarantees, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1); King, 166 F.3d at 891.
The FMLA also contains an anti-discrimination component similar to Title VII, which prohibits an employer from discriminating or retaliating against an employee who requests or takes medical leave pursuant to the statute. Serio, 102 F. Supp.2d at 1051. Specifically, "[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave." 29 C.F.R. § 825.220(c). Plaintiff has abandoned her retaliation claim, however, so we do not discuss it further here. Pl.'s Br. in Opp. to Def.'s Mot. for Summ. J. at 1.
A claim brought under a substantive rights provision of the FMLA is known as an "entitlement claim." Serio, 102 F. Supp.2d at 1050-51. The burden of proof on an entitlement claim lies with the plaintiff. Rice v. Sunrise Express. Inc., 209 F.3d 1008, 1017-18 (7th Cir. 2000). She must demonstrate by a preponderance of the evidence her eligibility for and her entitlement to the benefit claimed, i.e., the disputed leave. Id. In such cases, the intent of the employer is immaterial. See King, 166 F.3d at 891 (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997)).
Borg Warner contends that Cool was neither eligible for nor entitled to FMLA leave. Specifically, Borg Warner asserts that Cool was not eligible for FMLA leave because she resigned her employment before she applied for leave, and that even assuming arguendo that Cool had not resigned, she still was not entitled to FMLA leave because she did not give BorgWarner notice that the reason for her leave request qualified under the Act. Cool, for her part, responds that she never formally resigned her position at BorgWarner, and that she gave BorgWarner adequate notice that her leave request was FMLA-qualifying.
An employee who requests FMLA leave after the termination of her employment relationship cannot establish a claim under the Act against her employer for the denial of such a request. Smith v. BellSouth Telecomm., Inc., 273 F.3d 1303. 1311 (11th Cir. 2001): Brohm. M.D. v. JH Properties, Inc., 149 F.3d 517, 523 (6th Cir. 1998). Cool's initial leave request and need to resign should such a request be denied, communicated orally to Goss and Giles through Bowles, was denied on August 13, 2001. Subsequently, on August 14, 2001, Giles received Cool's letter, which stated her need to be absent from work for "3 months to 1 year" as a result of a "personal emergency circumstance" as well as her intent to resign if Giles again denied her leave request, which Giles did upon receipt of Cool's letter. Whether Cool's August 14 letter stated a conditional resignation that became effective under Indiana law upon the occurrence of that condition, an issue not briefed by the parties, is a question we need not reach here because we conclude that even if Cool had not resigned, she still would not have been eligible for FMLA leave.
Employers such as BorgWarner that are covered by the FMLA are required to grant leave to certain employees, including Cool: (1) for the birth of a son or daughter, and to care for the newborn child; (2) for placement with the employee of a son or daughter for adoption or foster care; (3) to care for the employee's spouse, son, daughter, or parent with a serious health condition; and (4) because of a serious health condition that makes the employee unable to perform the functions of the employee's job. 29 C.F.R. § 825.112. Cool claims that she was entitled to the third category of FMLA leave just described because her grandchildren, with whom she alleges she was in loco parentis, were suffering from a serious health condition.
A grandchild is typically not included as a "son or daughter" under the Act. As defined in the regulations interpreting the FMLA, a "son or daughter" means a biological, adopted, or foster child, a step-child, a legal ward, or a child of a person standing in loco parentis." 29 C.F.R. § 825.113(c). Cool, referencing the Special Power of Attorney signed by her son, William, which gives her "full authority for the care, custody and control of [his] minor children" as well as the authority "to act in loco parentis" to them, argues that the grandchildren are thus her "son" and her "daughter" under the Act.
Persons who are "in loco parentis" are further defined to include "those with day-to-day responsibilities to care for and financially support a child." A biological or legal relationship is not necessary. 29 C.F.R. § 825.113(c)(3). Borg Warner contends that although Cool was responsible for the day-to-day care of the children, William continued to support them financially. BorgWarner also emphasizes that although William signed the Special Power of Attorney on August 13, 2001, it did not go into effect until August 24, 2001, the date of William's deployment, which was almost two weeks after Cool applied for FMLA leave.
We conclude, however, that we need not decide the extent to which Cool used her own funds to support her grandchildren, the extent to which she exercised control over the money set aside by William for the grandchildren's support, or what weight, if any, to give to the Special Power of Attorney. Regardless of whether Cool's grandchildren could qualify as her son and daughter under the FMLA, they could not justify her leave request because, as we will discuss below, Cool did not give BorgWarner notice that they suffered from a serious health condition.
To be eligible for FMLA leave, an employee must give her employer notice of her intent to apply for such leave. This notice may be verbal, 29 U.S.C. § 825.302(c), and although employees need not expressly assert rights under the FMLA, see 29 C.F.R. § 825.303(b), they must provide employers with details sufficient to inform the employers not only that the FMLA may apply but also when a given employee will return to work. Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001)(citing Gilliam v. United Parcel Service. Inc., 233 F.3d 969 (7th Cir. 2000); Diaz v. Ft. Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997)).
Federal regulations, specifically 29 C.F.R. § 825.302(a), provide for two kinds of notice: notice of a foreseeable leave, and notice of a leave that is not foreseeable (which we will refer to as "exigent leave" or leave under "exigent circumstances"). The regulation provides:
An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.Aubuchon v. Knauf Fiberglass, 240 F. Supp.2d 859, 865 (S.D.Ind. 2003) (Barker, J.). Cool gave BorgWarner notice beginning on Monday, August 13, 2001, of a leave to begin Monday, August 20, 2001. A week is less than 30 days notice; therefore, we evaluate whether Cool met the notice requirements for exigent leave.
The FMLA notice requirement at issue is not one of timing, but of substance. The regulation suggests that, for an employee to qualify for exigent leave, she must provide the employer with notice that points not merely to a serious health condition-which is always required, whether the leave is foreseeable or not-but also notice that she lacked (or lacks) "knowledge of approximately when leave will be required to begin," that there has been "a change in circumstances," or that there is "a medical emergency." Id. at 866.
The parties do not dispute that Cool knew approximately when the leave would be required to begin-on or before August 24, 2001, the date of her son's deployment-and that there was no medical emergency. With regard to what events qualify as a "change in circumstances," there is little law on the subject. We concur with BorgWarner's interpretation of "change in circumstances" to refer to circumstances causing an otherwise qualifying leave to need to begin sooner than originally anticipated. See 29 C.F.R. § 825.302(a) ("For example, an employee's health condition may require leave to commence earlier than anticipated before the birth of a child.").
As Cool did not anticipate going to Georgia to care for her grandchildren before she received her son's August 10, 2001 telephone call, she argues that her daughter-in-law's alcoholism and resultant inability to care for Cool's grandchildren, her son's impending naval deployment, and Cool's subsequent appointment as her grandchildren's guardian in her son's absence, were the changes in circumstances that caused Cool to apply for exigent leave. Our inquiry into whether Cool provided BorgWarner with notice of a change in circumstances therefore merges with our inquiry into whether, as an initial matter, she gave BorgWarner notice of a FMLA-qualifying leave. The ultimate question before us, then, is whether Cool notified BorgWarner at the time of her leave request that the grandchildren suffered from a serious health condition.
For purposes of the FMLA, a "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves, in relevant part:
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition . . .29 C.F.R. § 825.114(a)(2)(I). Cool provided notice of her leave request on three occasions: (1) in her August 13, 2001 conversation with Bowles; (2) in the August 14, 2001 letter she sent to Giles, Goss and Bowles; and (3) in the August 14, 2001 voicemail she left for Giles. We consider these notices in turn.
The other categories of serious health conditions involve inpatient care in a hospital, or incapacity due to pregnancy, a chronic serious health condition, a permanent or long-term condition, or treatment following restorative surgery after an accident or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of treatment, none of which are at issue here.
In Cool's August 13, 2001 conversation with Bowles, Cool explained that she was requesting a leave of absence of "up to a year" in order to care for her grandchildren while her son was deployed with the U.S. Navy. Because of Cool's daughter-in-law's alleged alcoholism, she could not be entrusted with Cool's grandchildren's care. Cool Dep. p. 97, 11. 3-4; Bowles Dep. pp. 12-14. Cool indicated to BorgWarner not that her grandchildren were suffering from or had suffered from an incapacitating medical condition, but rather that they were minors in need of general supervision and care. Again, in the August 14 letter, Cool explained that her "personal emergency circumstance" involved taking over the guardianship of her grandchildren during her son's deployment. One would assume that, in the course of these communications, which took place over several days, Cool would have informed BorgWarner that her grandchildren were ill or that they suffered from a medical condition, if that had been the case. Vague references to "family problems" do not give the employer notice of FMLA-qualifying leave. See Carter v. Ford Motor Co., 121 F.3d 1146, 1147 (8th Cir. 1997) (concluding that plaintiffs notice to the employer that "she was sick and that she and her husband were going to be `out' because of family problems" that were "personal" in nature was insufficient to alert the employer that the employee suffered from a serious health condition).
Finally, although Cool specifically stated her intent to apply for FMLA leave to cover her absence in the August 14 voicemail that she left for Giles, we find that she did not reveal any details that would allow BorgWarner to determine how her leave request might qualify under the Act. Collins, 272 F.3d at 1008-09; see also 29 U.S.C. § 825.208(a) ("In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee."). Notice under the FMLA is not sufficient unless an employee requests leave for a covered reason, Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997), and the FMLA covers childcare leave only if the child has a serious health condition. Niesse v. General Elec. Co., 2001 WL 290382, *8 (S.D. Ind. 2001) (finding that plaintiff's initial request for leave for "personal problems child care issues" "did not hint that it could have been [for] FMLA qualifying leave"), Evans v. Henderson 2001 WL 109771, *2 (N.D. Ill. 2001); see also 20 U.S.C. § 2612 (a)(1)(C).
Cool contends that any defective notice provided by her leave requests is cured by the medical certifications that she submitted to BorgWarner after arriving in Georgia, which allegedly state that the grandchildren have serious health conditions. Following Giles' receipt of Cool's August 14 letter and her final denial of Cool's leave request, it was BorgWarner's understanding that Cool had resigned her employment. Nonetheless, in light of his working relationship with Cool, Goss reviewed her FMLA documentation, including the medical certifications for each of the grandchildren signed by the grandchildren's doctor, Dr. Bryan Weatherspoon. Goss again determined that she was not entitled to leave.
We note at the outset of our discussion of the medical certifications the circumstances in which they were obtained. On August 27, 2001, approximately two weeks after submitting her leave requests and 10 days after her last day of work at BorgWarner, Cool wrote Dr. Weatherspoon and requested that he refer her grandchildren to stress counseling, which Cool felt would help them cope with their mother's alcoholism and their parents' divorce. There is no indication that Cool knew of her grandchildren's stress symptoms until after she arrived in Georgia. See Def.'s Ex. 8 to Cool Dep. Dr. Weatherspoon backdated the onset of the grandchildren's stress condition to August 18, 2001, but that date is still subsequent to Cool's application for FMLA leave and her last day of employment at BorgWarner.
Cool asserts that the certifications' boilerplate reference to a "serious health condition" prevents BorgWarner, who did not seek a second medical opinion, from arguing that the grandchildren did not have such a condition. Question 6A on the Certification of Health Care Provider for a Family Member reads as follows (for each grandchild):
If leave is required to care for a family member of the employee with a serious health condition, does the patient [the grandchild] require assistance for basic: X medical, X personal needs, ___ safety, X transportation, or for X other (specify) therapy.
As an initial matter, BorgWarner correctly points out that while the employer may seek a second opinion under the FMLA, a second opinion is not required before the employer may argue that no serious health condition existed. 29 U.S.C. § 2613(c)(1); see also Stekloff v. St. John's Mercy Health Sys., 218 F.3d 858, 860 (8th Cir. 2000).
Further, the employer is not estopped from arguing the absence of a serious health condition if the certification forms provided by the plaintiff were facially deficient. See Marchisheck v. San Mateo County, 199 F.3d 1068, 1076-77 (9th Cir. 1999). For a medical certification to be sufficient under the FMLA, it must state "the appropriate medical facts within the knowledge of the health care provider regarding the condition," U.S.C.A. § 2613(b)(3), and in this case, "appropriate medical facts" would include facts satisfying all of the requirements of a serious health condition under the Act, including a period of incapacity greater than three days. The certifications submitted by Cool stated that the grandchildren were not incapacitated at the time Dr. Weatherspoon evaluated them and did not mention any previous period of incapacitation. Rather, when asked "to provide a brief statement as to how the medical facts meet the criteria of the [FMLA leave] category selected," Dr. Weatherspoon stated simply that the patients "require[d] counseling for adjustment reaction to childhood."
While childhood may at times be traumatic, a reasonable jury could not find that it was incapacitating under these circumstances. We sympathize with the challenges confronted by Cool's grandchildren, Cool, and working parents and their families everywhere. The stress condition reported by Cool to Dr. Weatherspoon (exhibited by crying, sullen acting out, and abdominal pain), however, is similar to conditions such as the common cold, the flu, ear aches, upset stomach, minor ulcers, and headaches other than migraines-illnesses that ordinarily do not meet the definition of a serious health condition under the FMLA. Although these illnesses, like the grandchildren's stress condition, cause some, possibly recurring, disruptions to the daily routines of persons suffering from them, they are not likely to cause incapacitation, and thus qualify for FMLA leave.See 29 C.F.R. § 825.114(c). Indeed, Cool's deposition testimony that her grandchildren attended school without interruption or accommodation and regularly participated in several extracurricular activities such as Cub Scouts and dance lessons further demonstrates that her grandchildren did not have a serious health condition as defined by the Act.
Upon receiving the medical certifications, Goss immediately noticed that they were unclear as to what serious health condition the grandchildren had. He asked BorgWarner's contract physician, Dr. Michael Santoro, to call Dr. Weatherspoon to clarify the certifications. Federal regulations authorize "a health care provider representing the employer" to "contact the employee's health care provider, with the employee's permission" to clarify or authenticate a medical certification. 29 C.F.R. § 825.307. Goss did not get Cool's permission; he thought he did not need it because he was asking Dr. Santoro to contact not Cool's health care provider, but her grandchildren's. However, Dr. Weatherspoon was also Cool's health care provider in the sense that he completed a medical certification to qualify her for FMLA leave. Goss should have gotten Cool's permission before asking Dr. Santoro to contact Dr. Weatherspoon. Therefore, we do not include Dr. Weatherspoon's clarification via Dr. Santoro in our analysis, even though it supports our conclusion.
Despite Cool's attempted invocation of the FMLA, BorgWarner also believed, correctly we reason, that absent a more generous employer-initiated leave policy, which BorgWarner did not have, the FMLA would not cover Cool's leave request because the minimum amount of time-off for which Cool asked, 3 months or 13 weeks, was greater than the maximum allowed by the FMLA, 12 weeks. See Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933, 937 (8th Cir. 2000) ("Under the FMLA, twelve weeks of leave is both the minimum the employer must provide and the maximum that the statute requires."). As well, Cool was unsure of the duration of her leave; therefore, she could not inform BorgWarner of a date when it could expect her to return to work as required under the Act. See Coffins, 272 F.3d at 1008.
On the record before us, we are forced to conclude that Cool has not met her burden of demonstrating that she was entitled to leave under the FMLA. Her request for time-off to attend to a "personal emergency circumstance" did not give BorgWarner adequate notice that her grandchildren suffered from a "serious health condition," a deficiency that was not cured by the submission of facially defective medical certifications. Consequently, BorgWarner was not obligated to investigate further whether Cool's leave request qualified under the FMLA before denying it. We therefore GRANT Borg Warner's Motion for Summary Judgment on all claims.
Conclusion
BorgWarner moved for summary judgment on Cool's FMLA claims. Cool continued to litigate her entitlement claim under the Act, but choose not to pursue her retaliation claim. For the reasons set out in detail above, we find that Cool has not met her burden of demonstrating that she was entitled to leave under the FMLA as her request for time-off to attend to a "personal emergency circumstance" did not give BorgWarner adequate notice that her grandchildren suffered from a "serious health condition." BorgWarner's Motion for Summary Judgment is therefore GRANTED.
It is so ORDERED.