Novak v. MetroHealth Medical ( 2007 )

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.