Summary
granting summary judgment for employer where employee offered only his and his wife's statement that he was incapacitated, and offered no evidence from a health care provider showing need to take time off from work
Summary of this case from Ruggio v. Tyson Foods, Inc.Opinion
Cause No. IP00-0715-C-H/G
July 1, 2002
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION
David Levine alleges that his former employer, the Children's Museum of Indianapolis, Inc., violated his rights under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., and fired him in retaliation for exercising those rights. Levine managed the Museum's on-site planetarium. Levine suffers from gastroesophageal reflux disease. The Museum terminated Levine's employment after he went home early because of a flare-up of his condition, leaving a teen-age employee alone to supervise several young museum volunteers who later got into a fight.
The Museum has moved for summary judgment on Levine's claims. As explained below, the court grants the defendant's motion. Levine has not produced evidence that tends to show he suffered from a "serious health condition" within the meaning of the FMLA. In addition, as a matter of law, Levine did not put the Museum on notice that his absence was of a nature that might trigger the FMLA's protections.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, the court must construe all evidence in the light reasonably most favorable to the non-moving party, giving that party the benefit of reasonable inferences from the evidence. Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). A factual issue is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not discretionary; if a party shows it is entitled to summary judgment, judgment must be granted. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994).
Undisputed Facts
The following facts are either undisputed or reflect the record in the light reasonably most favorable to plaintiff Levine, the non-moving party.
David Levine worked at the Children's Museum of Indianapolis, Inc. from September 1985 through December 3, 1999. In 1996, Levine was promoted to manager of the Museum's planetarium. In that capacity, he was responsible for producing new planetarium shows, monitoring and developing the planetarium's budget, and ensuring that the planetarium functioned properly.
In the fall of 1999, four full-time and three or four part-time employees worked in the planetarium. Some of these employees were junior staff members, who were under age 18. Volunteers between ages 10 and 16 also worked in the planetarium from time to time through the Museum Apprentice Program. These young volunteers are known as "MAPs."
Levine left the planetarium early on Friday, November 26, 1999. Levine testified he went home a little before 4 p.m. because he was experiencing a serious attack of gastroesophageal reflux disease ("GERD") and needed to lie down. Levine Dep. at 52, 55. The only other person working at the planetarium that day was Mae Huehls, a junior show specialist who was 15 or 16 years old. After Levine left, a fight broke out between two MAP volunteers.
On summary judgment the court must credit Levine's testimony about the time he left. Levine also testified that he normally left work around 4 p.m., Levine Dep. at 51, but he admits that he left work early on November 26, 1999. See Statement of Additional Material Facts ¶ 50. His complaint alleged that he left work around 3 p.m. Cplt. ¶ 13.
Before leaving, Levine had been lying down in his office for an hour or so. Levine telephoned his wife to tell her that he was leaving work. However, Levine did not tell Huehls or any other Museum employee that he was going home. In addition, Levine did not indicate that he was "out" on the "in/out" board in the Museum's education department, although he had used the board before. Levine did tell the four MAP volunteers in the planetarium that he was going home. He instructed them that they should tell Huehls that he had left and that they should work on a particular project. Id. at 54-56.
Levine drove himself home and took some antacid. He also missed work on Monday, November 29, 1999 because his GERD symptoms continued. Levine did not seek out any medical care for the GERD flare-up and he did not consider doing so. Id. at 55-56. Levine did not let the Museum know that he would be absent on November 29.
Levine has submitted an affidavit stating that he was "incapacitated" on November 26-29, that he did not perform any of the "normal daily activities" that he would normally perform, and that he remained in bed. D. Levine Aff. ¶ 5. Levine's wife, Myra, provided an affidavit corroborating these allegations in the same language. M. Levine Aff. ¶ 2.
Upon his return to work on Tuesday, November 30, 1999, Levine sent an e-mail to the Museum's Human Resources Director, Janis Weis, and others. The subject line of the e-mail read: "Re: A problem concerning MAPs." Levine wrote: "I have some more to add to this mix. I was here on Friday but left about 4 p.m. due to illness, in fact I am writing this on Tuesday morning because I was out still sick on Monday." Levine did not give the Museum any medical documentation regarding his absences, and the Museum never requested any.
Levine testified that he had told Director of Education David Cassady, Human Resources Director Weis, and employees Deb Rehling and Dennis Smerdell about his GERD at various times in 1998 and early 1999. Levine Dep. at 42. Levine told Cassady and Weis about his GERD in the context of discussions about staffing. Levine informed them that certain personnel decisions would make his job less stressful, which was important for controlling his GERD. Id. at 43-49. Cassady later inquired how Levine was feeling. Levine also told Rehling and Smerdell about his condition "periodically" at times when he left work early. Id. at 50.
The Museum fired Levine on Friday, December 3, 1999. The Museum has stated that it terminated Levine's employment because he left work early on November 26, 1999 without notifying any museum personnel, which left a teenage junior staff member alone to run the planetarium and to supervise MAPs. See Weis Dep. at 9-10 ("Mr. Levine was terminated because he left a youth aged 15 in a vulnerable position by themselves and we had an incident. . . ."); see also Pl. Dep. Ex. 3.
Levine has objected to the relevance of the Museum's evidence of its stated reason for firing Levine. The objection is overruled because Levine asserted two distinct FMLA claims in his complaint. Count I, "Violation of Family Medical Leave Act," invokes the protections of 29 U.S.C. § 2615(a)(1), which declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided. . . ." Count II, "Retaliation Under Family Medical Leave Act," relies on 29 U.S.C. § 2615(a)(2), which prohibits discrimination or retaliation against employees who exercise their rights under the FMLA. An employer's motivation for an adverse employment action is relevant to a claim under the FMLA's anti-retaliation clause, though not relevant to a claim under the anti-interference clause. See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016-17 (7th Cir. 2000), citing King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999) (employer's intent is relevant to an FMLA discrimination claim but not to a claim that seeks to invoke a "substantive guarantee" under the Act); see also Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997) (McDonnell Douglas analysis does not apply to "substantive claims" under the FMLA; the plaintiff did not allege he was discriminated or retaliated against for requesting leave). Thus, the Museum is entitled to present evidence of its motivation to address Count II of the complaint.
The parties' briefs focus primarily on Count I, the interference claim, but the Museum moved for summary judgment on all claims, including Count II. Summary judgment is appropriate on that claim because, in response to the Museum's motion, Levine has come forward with no evidence that the Museum's decision to fire him was motivated by his exercise of rights under the FMLA.
Levine testified that his treating physician, Dr. Arthur, first diagnosed him with GERD in 1985 and that he has been under Dr. Arthur's care for it since then. Levine Dep. at 39, 74. GERD is a condition where acid from the stomach is refluxed or pushed into the lower portion of the esophagus. The symptoms of GERD can include pain or tightening in the chest, nausea, headache, and fatigue. Treatments for GERD include reducing food consumption, sitting upright after eating, avoiding carbonated beverages and caffeine, use of over-the-counter antacids, use of over-the-counter proton pump inhibitors (medication to reduce the amount of acid production in the stomach), use of prescription proton pump inhibitors, and surgery to prevent material coming from the stomach into the esophagus. Levine testified that he copes with the symptoms of GERD by sitting or lying down, relaxing, or taking antacids.
On December 11, 1997, Levine saw Dr. Arthur following an episode when Levine experienced chest pain and vomited. Def. Dep. Ex. 2. Levine reported that the pain dropped him to his knees for a short time and that he continued to feel pressure in his chest for about 24 hours. Levine also told Dr. Arthur that he had had GERD in the past and believed that it caused the episode. At the time of the examination, Dr. Arthur observed: "the patient is in no acute distress whatsoever." Id. Dr. Arthur ordered an upper GI endoscopy, a procedure in which a physician uses a tube to look into a patient's stomach. Upon completing the examination, the radiologist wrote: "Occasional gastroesophageal reflux is seen. However, no evidence of hiatus hernia is demonstrated. No evidence of peptic ulcer disease is seen." Def. Dep. Ex. 4.
Although Levine testified that Dr. Arthur diagnosed his GERD in 1985, neither party has produced any evidence that Levine saw Dr. Arthur for GERD before the December 11, 1997 visit. The Museum produced deposition testimony from Dr. Arthur which contained a chronological discussion of Levine's medical records beginning in 1992.
Following the December 1997 visit, Levine did not see Dr. Arthur or any other physician for his GERD for more than a year and a half. On July 12, 1999, Levine saw Dr. Arthur for treatment following a GERD episode that lasted 36 hours but did not involve nausea or vomiting. Def. Dep. Ex. 6. Dr. Arthur ordered a stomach x-ray, which showed occasional gastroesophageal reflux, but no ulcer or cancer. Def. Dep. Ex. 9. Dr. Arthur gave Levine a prescription for Prevacid, a proton pump inhibitor. Dr. Arthur previously had prescribed Tagamet for Levine. Arthur Dep. at 32. Dr. Arthur wrote that he would refer Levine to a specialist only if the Prevacid did not work. Def. Dep. Ex. 6.
Dr. Arthur referred Levine to Dr. Meisenheimer, a gastroenterologist, on or about July 19, 1999. Def. Dep. Ex. 8. On August 18, 1999, Dr. Meisenheimer performed an endoscopy and confirmed that Levine was suffering from GERD. (Dr. Meisenheimer also ordered other laboratory tests.) Dr. Meisenheimer recommended that Levine take Zantac, an over-the-counter medication, to control his GERD symptoms. Def. Dep. 13. Dr. Meisenheimer observed that Levine had complained of recurrent epigastric pain for 18 years and that his symptoms were intermittent. Id.
Dr. Arthur next saw Levine on or about August 28, 1999. Dr. Arthur prescribed Prilosec to replace the Prevacid, which was giving Levine headaches. Def. Dep. Ex. 12.
Levine next sought treatment for his GERD almost two years later on July 13, 2001, on the day of his deposition in this action. That day he saw a physician's assistant for his GERD, a plantar's wart, and a cough. Arthur Dep. at 30. Prevacid was recommended to treat the GERD. Id.
Levine testified that he was absent from work "several times" because of GERD, but he does not remember when and for how long. D. Levine Aff. ¶ 6. Specifically, Levine does not know whether he ever missed two or more days in a work-week because of GERD. Levine also does not know how many times he has seen a treating physician for GERD. The Museum does not have any record of Levine's absences. See Pl. St. of Add'l Material Facts ¶¶ 58-59.
Information regarding some of Levine's absences may have been lost when Cassady's computer files were deleted following his retirement, which occurred after Levine filed this action and requested document production. Levine has not pursued a spoliation argument, and on the present record, the court could only speculate about what might have been lost and whether the materials were available from other sources.
Discussion
The FMLA gives eligible employees the right to take up to twelve work-weeks of unpaid leave during any twelve month period for specified reasons, including because a "serious health condition" makes the employee unable to perform the functions of his or her position. 29 U.S.C. § 2612(a)(1)(D). The FMLA prohibits employers from interfering with or denying the exercise of rights protected by the Act. 29 U.S.C. § 2615(a)(1). The FMLA also prohibits employers from discriminating or retaliating against employees who exercise their rights under the Act. 29 U.S.C. § 2615(a)(2).An employee bears the burden of proving that he was entitled to FMLA leave and the employer violated the statute by denying him such leave. Bell v. Jewel Food Store, 83 F. Supp.2d 951, 957 (N.D.Ill. 2000), citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997). Levine claims that the Museum violated 29 U.S.C. § 2615 by firing him for an absence that qualified as authorized medical leave under 29 U.S.C. § 2612(a)(1)(D).
A. The Class of Persons Protected by the FMLA
The FMLA affords legal protection only to statutorily defined "eligible employees" in statutorily defined situations. See 29 U.S.C. § 2612(a)(1). To be an "eligible employee," a person must have been employed for at least twelve months by the employer from whom leave is requested, and the employee must have worked for at least 1,250 hours for that employer during the prior twelve month period. 29 U.S.C. § 2611(2). The parties agree that in 1999, Levine had been a full-time employee of the Children's Museum for more than fourteen years. The parties also agree that the Children's Museum is an employer covered by the FMLA. See 29 U.S.C. § 2611(4); see also Def. Answer.
B. "Serious Health Condition"
Employees who meet the hours and duration of employment requirements are entitled to take leave under the FMLA's protection only in specific situations. Congress enacted the FMLA "to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition." 29 U.S.C. § 2601(b)(2). The FMLA specifies four situations in which covered employees are entitled to take leave. Levine relies on the fourth one: "Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). The first contested issue in this case is whether Levine's GERD constitutes a "serious health condition" within the meaning of the FMLA.
The FMLA defines "serious health condition" as follows:
The term "serious health condition" means 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). Levine did not receive inpatient care for his GERD, so his condition does not satisfy the requirements of 29 U.S.C. § 2611(11)(A). Whether his GERD could amount to a serious health condition therefore depends on whether his visits to Dr. Arthur constituted "continuing treatment by a health care provider" within the meaning of 29 U.S.C. § 2611(11)(B).
Department of Labor regulations define "continuing treatment by a health care provider" as follows:
(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, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services H(e.g., physical therapist) under orders of, or on referral by, a health care provider; or (B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
(ii) Any period of incapacity due to pregnancy, or for prenatal care.
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).29 C.F.R. § 825.114(a)(2).
Levine contends that his condition satisfies the definitions of both § 825.114(a)(2)(i) and (a)(2)(iii). See Pl. Br. at 18-21. Thus, to show that he was entitled to FMLA protection under either of these provisions, Levine must come forward with evidence that tends to show either (A) a period of incapacity of at least three consecutive days and related treatment two or more times by a health care provider; or (B) a "chronic serious health condition" that results in a period of incapacity. See Marchisheck v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir. 1999) (summarizing regulations).
Levine cannot show that he suffered from a serious health condition under § 825.114(a)(2)(i) or (iii) because he has not produced competent evidence that he was incapacitated by GERD at any time during the period November 26-29, 1999. The regulations define "incapacity" as "inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom." 29 C.F.R. § 825.114(a)(2)(i).
In support of his claim of incapacity, Levine relies only on his own affidavit and the affidavit of his wife, Myra Levine. Both affidavits assert that Levine was "incapacitated" on November 26-29, that he did not perform any of the "normal daily activities" that he normally would perform, and that he remained in bed.
These allegations are too general and conclusory to create a genuine issue of material fact for trial. A plaintiff's own statement is insufficient to establish incapacity under the FMLA. See Haefling, 169 F.3d at 500 (without evidence from treating physician, plaintiff's self-serving assertions regarding the severity of his medical condition and the treatment it required were insufficient to raise issue of fact under FMLA); Bell v. Jewel Food Store, 83 F. Supp.2d 951, 959 (N.D. Ill. 2000) ("Bell's own statement is not enough to establish he was incapacitated:
Bell must provide evidence from a medical professional or health care provider that he was unable to work."), citing Joslin v. Rockwell Intern. Corp., 8 F. Supp.2d 1158, 1160 (N.D.Iowa 1998) (finding that an employee's own testimony that she was unable to work because of her illness was insufficient to prove that she was incapacitated); accord, Austin v. Haaker, 76 F. Supp.2d 1213, 1221 (D.Kan. 1999) (same); Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D.Ohio. 1997) (holding that a health care provider must determine that an employee required an extended medical leave); see also Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1037 (M.D.Tenn. 1995) (plaintiff's testimony that she was too sick to work was insufficient to satisfy her burden on summary judgment; her doctor's "speculation" that it was not unreasonable for someone with her condition to be incapacitated three to four days also did not satisfy burden).
Similarly, Myra Levine's affidavit, which contains the identical allegations that appear in David Levine's affidavit, cannot defeat summary judgment on the issue whether Levine was incapacitated. See id.; see also Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 951-52 (7th Cir. 2000) (in an Americans with Disabilities Act case, a physician's conclusory statement that the plaintiff satisfied the statute's definition of disability was insufficient to defeat summary judgment); Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) ("It is well settled that conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact.").
The court assumes there may be clear-cut cases in which any reasonable person would agree, without needing medical testimony, that the employee was incapacitated, but Levine's GERD condition is not such a case.
Without evidence of incapacity, Levine's FMLA claim fails as a matter of law because he cannot make a prima facie showing that he suffered from a "serious health condition" under the FMLA. See, e.g., Marchisheck, 199 F.3d at 1075 (affirming summary judgment for employer; plaintiff's son's psychological problems were not a chronic serious health condition where there was no evidence of his incapacity).
Levine's FMLA claim also fails under 29 C.F.R. § 825.114(a)(2)(i) because he has not produced evidence that the alleged incapacity involved the type of treatment required under § 825.114(a)(2)(i)(A) or (B). Section 825.114(a)(2)(i)(A) requires that the incapacity involve treatment by a medical care provider at least two times. Section 825.114(a)(2)(i)(B) requires that the incapacity involve treatment by a medical care provider at least once, followed by a continuing regimen of treatment. Levine testified that he did not even consider seeking medical treatment for his GERD flare-up on November 26-29, 1999. After the flare-up, Levine did not see a health care provider about GERD until July 13, 2001, when he saw a physician's assistant on the day of his deposition in this case. Even if that visit constituted "treatment" under the FMLA related to the Levine's incapacity in 1999, there was only one visit, which fails the requirements of § 825.114(a)(2)(i)(A) and (B).
The Museum has argued that Levine cannot satisfy the three-day requirement for "incapacity" under § 825.114(a)(2)(i) because Levine was not scheduled to work on Saturday and Sunday, November 27-28. The court does not base its decision on that ground. The regulation states that the relevant period of incapacity is measured in calendar days, not work days. See also Haefling v. United Parcel Service, 169 F.3d at 499-500 (relying on absence of evidence of "incapacity" on days plaintiff was not scheduled to work, implying that those days could count toward requirement).
B. Notice, Certification, and Waiver
Levine has argued that the Museum is estopped from arguing that he did not have a "serious health condition" because it did not seek a medical certification of his condition after it learned that he had missed work for part of November 26 and all of November 29, 1999 because of an "illness," as Levine described it at the time. The court disagrees. The undisputed facts show that Levine did not give the Museum sufficient information about his absences to put the Museum on notice that the FMLA might be implicated. The Museum therefore could not reasonably have considered FMLA certification as an option. In addition, by failing to provide sufficient notice to the Museum, Levine is precluded from seeking retroactive designation of FMLA leave.
Levine generally contends that the Museum has waived its opportunity to deny that he suffered from a "serious health condition" because it did not seek a certification under 29 C.F.R. § 825.305(a), which allows an employer to insist that an employee obtain a health care provider's certification of the circumstances requiring leave. See Rager v. Dade Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000) ("The employer . . . can, indeed, if he wants, dispense with the [certification] requirement altogether), citing Thorson v. Gemini, Inc., 205 F.3d 370, 380-81 (8th Cir. 2000). In Thorson, the Eighth Circuit held that the employer could not defeat summary judgment for the plaintiff by disputing whether the plaintiff had a "serious health condition" because the employer had failed to seek a certification when it learned that the employee's absences might be covered by the FMLA. 205 F.3d at 382.
In contrast to Levine's case, however, the plaintiff in Thorson had put her employer on notice that FMLA leave was at issue at the time of her illness — not years later in litigation. The plaintiff had been absent from work more than three days and had presented two notes from her doctor during her absence stating that she was unable to work. Id. at 381. Once the employer was on notice that the employee was absent for a reason that reasonably could be expected to fall within the FMLA's purview, the employer was obliged either to count the absence as FMLA leave or to seek certification to test the plaintiff's proof. See id., citing Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999) ("Under the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave."). Levine's case is distinguishable because he did not provide the Museum with timely notice of an absence that might be covered by the FMLA.
When the need for FMLA leave is foreseeable, an employee must provide his employer with no less than thirty (30) days advance notice. 29 U.S.C. § 2612(e)(1). When the need for leave is not foreseeable, as in Levine's case, the employee should give notice as soon as practicable. The controlling regulation provides:
When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances when such notice is not feasible.29 C.F.R. § 825.303(a).
An employee is not required to invoke his FMLA rights expressly or even to mention the FMLA. 29 C.F.R. § 825.303(b). However, employers are entitled to "the sort of notice that will inform them that the FMLA may apply." Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001); Stoops v. One Call Communications, Inc., 141 F.3d 309, 312 (7th Cir. 1998) ("the employee can be completely ignorant of the benefits conferred by the Act: it is sufficient notice if the employee provides the employer with enough information to put the employer on notice that FMLA-qualifying leave is needed").
In Collins, the Seventh Circuit affirmed summary judgment for the employer where the plaintiff had missed work for two days, and said she was "sick" but provided no other information. The employer fired the employee, who had a poor attendance record. Later, in the litigation, the employee alleged that she had been suffering from a "serious health condition" under the FMLA. The Seventh Circuit held that, even assuming the plaintiff had a serious health condition, her claim failed as a matter of law because she had not given her employer adequate notice of her alleged need for FMLA leave: "Collins did not let her employer know the reason for her absence, and notice is essential even for emergencies. See 29 C.F.R. § 825.303. `Sick' does not imply `a serious health condition.'" Collins, 272 F.3d at 1008. The court noted that the plaintiff had mentioned her condition (depression) to her supervisors about a year before the absence that resulted in her termination, and that she could have given notice then that she might at some point need leave because of it. The court concluded that the plaintiff "failed in her obligation to tell the employer enough to suggest that the FMLA may be pertinent." Id. at 1009; see also Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 980 (5th Cir. 1998) (reversing judgment for plaintiff where, as a matter of law, note stating that plaintiff had pain in her side and would not be able to work that day, combined with report to manager that plaintiff was "sick," was insufficient to apprise the employer of a request to take time off for a "serious health condition"); compare Price v. City of Fort Wayne, 117 F.3d 1022, 1025 (7th Cir. 1997) (employee who cited "medical need" as reason for leave on employer's leave form and who attached doctor's note stating that plaintiff could not work put employer on notice that leave might be for FMLA reason); Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002) (distinguishing Collins where employer knew employee suffered from depression, knew she had needed leave in the past for depression, and knew from employee specifically that she was suffering from "depression again" at the time of her relevant absence).
Like the plaintiff in Collins, Levine did not put his employer on notice that he was making a retroactive request for FMLA leave by simply stating that he had missed work on November 26 and 29 because of "illness." Although there is some evidence that some Museum supervisors knew that Levine had GERD, no evidence suggests that the Museum reasonably should have known that Levine's "illness" was a GERD attack or that it qualified as a "serious health condition" under the FMLA. As a result, the Museum had no reason to request a certification under 29 C.F.R. § 825.305(a) ("An employer may require that an employee's leave . . . due to the employee's own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee's position, be supported by a certification issued by the health care provider of the employee.").
Levine has argued that he was not required to provide any more notice to the Museum (beyond referring to his absence due to "illness" in an e-mail message) because, as a general matter, the Museum did not require employees to furnish medical documentation for absences and the Museum had a flexible attendance policy. The court disagrees with Levine's argument, which has overtones of trying to ensure that no good deed goes unpunished. The issue here is whether Levine put the Museum on notice of an absence that triggered the Museum's duties under the FMLA. Courts have held that an employer may enforce certain rules about how notices should be given under the FMLA. See, e.g., Gilliam v. United Parcel Service, Inc., 233 F.3d 969, 972 (7th Cir. 2000) ("Nothing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep the employer informed about the employee's plans."). Levine has not cited any authority for the proposition that an employer with flexible attendance policies may subject itself to a lower threshold for imputing FMLA notice.
In addition, because Levine did not even inform the Museum that he had been absent until he returned to work on November 30, 1999, the regulations that govern the retroactive designation of FMLA leave apply here. Those regulations limit the circumstances under which absences can be designated as FMLA leave after the fact. In relevant part, the regulations provide:
(e) Employers may not designate leave as FMLA leave after the employee has returned to work with two exceptions:
(1) If the employee was absent for an FMLA reason and the employer did not learn the reason for the absence until the employee's return (e.g., where the employee was absent for only a brief period), the employer may, upon the employee's return to work, promptly (within two business days of the employee's return to work) designate the leave retroactively with appropriate notice to the employee. If leave is taken for an FMLA reason but the employer was not aware of the reason, and the employee desires that the leave be counted as FMLA leave, the employee must notify the employer within two business days of returning to work of the reason for the leave. In the absence of such timely notification by the employee, the employee may not subsequently assert FMLA protections for the absence.29 C.F.R. § 825.208 (emphasis added). Because Levine did not give the Museum timely notice that he claimed his absence was for an FMLA reason, he cannot now seek the FMLA's protections for that leave.
Levine's argument that the Museum was required either to obtain FMLA certification based on his report of "illness" or forever to hold its peace misconstrues the scope of FMLA coverage and the burden of proof in an FMLA action. By its application to "serious health conditions," the FMLA was aimed at genuinely serious and incapacitating conditions. It was not intended to mandate, as a matter of federal law, a uniform national sick leave policy for minor or temporary illnesses and discomforts: "The term `serious health condition' is not intended to cover short-term conditions for which treatment and recovery are very brief. It is expected that such conditions will fall within even the most modest sick leave policies. Conditions or medical procedures that would not normally be covered by the legislation include minor illnesses which last only a few days and surgical procedures which typically do not involve hospitalization and require only a brief recovery period." S. Rep. No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30. Under this scheme, an employer is not required to treat every report of illness as a potential FMLA-qualifying event. Such an approach would significantly increase the burdens placed on employers by the FMLA. Cf. 29 U.S.C. § 2601(b) (FMLA was enacted to allow employees to take reasonable leave for medical reasons while also accommodating the legitimate interests of employers).
Conclusion
Plaintiff David Levine has failed to come forward with evidence that would allow a reasonable jury to find that he suffered from a "serious health condition" under the FMLA. In addition, as a matter of law, Levine failed to provide defendant Children's Museum of Indianapolis, Inc. with notice that his absences might have implicated the Act. The defendant's summary judgment motion is granted. Final judgment will be entered for the defendant.