Darst, Richard L. v. Interstate Brands ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2460
RICHARD L. DARST, as Trustee for the
Bankruptcy Estate of KRZYSZTOF
CHALIMONIUK,
Plaintiff-Appellant,
v.
INTERSTATE BRANDS CORPORATION
and TONIA GORDON,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP01-0788-C T/K—John Daniel Tinder, Judge.
____________
ARGUED MARCH 28, 2007—DECIDED JANUARY 11, 2008
____________
Before POSNER, ROVNER and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Krzysztof Chalimoniuk1 worked
for Interstate Brands Corporation (“IBC”), a manufac-
1
During the course of this litigation, Chalimoniuk filed a
Chapter 7 bankruptcy proceeding in the United States Bank-
ruptcy Court for the Southern District of Indiana. His claim
against the defendants became part of the bankruptcy estate,
and Richard L. Darst, as trustee for that estate, has continued
to prosecute the claim on behalf of the estate.
2 No. 04-2460
turer of baked goods, for fifteen years before he was
terminated for excessive absenteeism. Chalimoniuk is
an alcoholic and he sought treatment for that condition
in his final days at IBC. He requested leave under the
Family and Medical Leave Act (“FMLA”) for an absence
extending from July 29, 2000 to August 14, 2000.2 From
August 4 through August 11, he was hospitalized for
treatment for alcohol dependence and acute withdrawal
syndrome. On August 15, when he returned to work, he
was terminated for absenteeism. The district court agreed
with IBC that Chalimoniuk could not show he was en-
titled to FMLA leave for July 31, August 2 and August 3,
all days that he was scheduled to work. His absences
for those three days, combined with absences he had
accumulated earlier, put him over the limit for absentee-
ism under IBC’s attendance policy. Because he lacks
evidence establishing his entitlement to FMLA leave for
those three days, we affirm.
I.
IBC has a points-based system for tracking and dis-
ciplining employees for absenteeism. A certain number of
points are assessed to the employee based on the nature
of the infraction. For example, an employee who is ab-
sent with an advanced call to IBC earns three points for
each day of absence. An employee who is absent without
calling in nets four points per day. On one end of the
spectrum, a late return from lunch merits one point; on
the other end, a failure to complete a shift with no note
from a doctor results in a six-point assessment. The
accumulation of twelve points leads to a written warning.
Eighteen points warrant a written reprimand. Normally,
2
All dates hereafter are in 2000 unless otherwise specified.
No. 04-2460 3
twenty-four or more points result in discharge. For
Chalimoniuk, for reasons that are not relevant here, the
cut-off for discharge was thirty-two points. No points
are accumulated under IBC’s policy for an absence
covered by FMLA. Prior to July 29, Chalimoniuk had
accumulated twenty-three points.
Late in the evening of Friday, July 28, Chalimoniuk, who
had been wrestling with alcoholism for some time, stopped
on his way home from work and purchased a large quan-
tity of alcohol. By his own account, on Friday night,
Saturday and for part of Sunday, he drank enough alcohol
to lose his memory for two or three days.3 Chalimoniuk
was scheduled to work in the Muffins Department at
IBC on July 31 (Monday), August 2 (Wednesday), and
August 3 (Thursday). On July 29, when his wife realized
he had relapsed, she called Fairbanks Hospital to see if
she could bring her husband in for treatment. Construing
the evidence in favor of Chalimoniuk as we must on
summary judgment, on that same day, Chalimoniuk
signed a consent for disclosure, authorizing the hospital
and his insurance company to share with each other
medical information regarding his condition. On Tuesday,
August 1, Chalimoniuk called his physician’s office but
the office was closed that day. On Wednesday, August 2,
he called his doctor’s office again, this time speaking to
a nurse or receptionist who spoke to the doctor and
referred Chalimoniuk to Fairbanks Hospital. On that
same day, Chalimoniuk called Fairbanks Hospital and
his insurance company to arrange his admission to the
hospital. Chalimoniuk described the call to Fairbanks
3
At his deposition, Chalimoniuk testified, “I don’t remember
really almost anything. It’s some kind of things which confused
me. I don’t know where I was between say like the Saturday and
probably Tuesday. I was very confused what I was doing, where
I was, what I did, how I did.” R. 51, Tab A, at 66.
4 No. 04-2460
as a five to ten minute conversation to “[g]et some infor-
mation, set [an] appointment.” R. 51, Ex. A, at 146. A
scheduled August 3 admission was moved to August 4
because of delays in obtaining insurance approval. On
August 4, Chalimoniuk was admitted to Fairbanks for
inpatient treatment of his alcoholism. He remained there
through August 10, completing his treatment.
At some point in that process, Chalimoniuk requested
FMLA forms from IBC. The company gave the “Certifica-
tion of Health Care Provider” form to his wife on August 7,
and he returned the completed form (hereafter “Certifica-
tion”) to IBC’s assistant human resources manager, Tonia
Gordon, on August 11. IBC’s three-page form closely
tracks form WH-380, a sample form provided by the
Department of Labor that meets the minimum require-
ments under the applicable FMLA regulations. The
physician who treated Chalimoniuk at Fairbanks Hos-
pital, Dr. Stephen Pfeifer, completed the Certification. In
particular, Dr. Pfeifer indicated that Chalimoniuk’s
“Serious Health Condition” involved “Absence Plus Treat-
ment.”4 Absence Plus Treatment is defined, in relevant
part, as a period of incapacity of more than three consecu-
tive calendar days (including any subsequent treatment
or incapacity relating to the same condition), that also
4
“Serious Health Condition” is a defined term in the FMLA.
Department of Labor regulations and form WH-380 define
Serious Health Condition as an illness, injury, impairment, or
physical or mental condition that involves, among other things,
Hospital Care, Absence Plus Treatment, Pregnancy, Chronic
Conditions Requiring Treatments, Permanent/Long-term
Conditions Requiring Supervision, and Multiple Treatments
(Non-Chronic Conditions). See 29 C.F.R. § 825.114; Dept. of
Labor Form WH-380. Each of these categories is further defined
and we will address only those parts of the regulations that
relate to Chalimoniuk.
No. 04-2460 5
involves (1) Treatment two or more times by a health care
provider; or (2) Treatment by a health care provider on
at least one occasion which results in a regimen of con-
tinuing treatment under the supervision of a health care
provider. 29 C.F.R. § 825.306; 29 C.F.R. pt. 825, App. B;
U.S. Dept. of Labor Form WH-380, Rev’d December 1999.
In another area of the Certification, where Dr. Pfeifer
was asked to list the medical facts which supported the
Certification, including a brief statement as to how those
medical facts meet the criteria of the category he
selected, he wrote, “Alcohol Dependence and Acute With-
drawal Syndrome. Hospitalized for W/D symptoms and
treated successfully. Now sober and involved in counsel-
ing [and] AA.” On the line asking for the “approximate
date the condition commenced, and the probable duration
of the condition (and also the probable duration of the
patient’s present incapacity, if different),” Dr. Pfeifer
wrote “7/29 - 8/11. Return 8/14.”
Also on August 11, Chalimoniuk submitted a Health
Insurance Claim form to Gordon. This Mutual of Omaha
form was required for an employee to be paid for an
absence due to disability. Part of the required information
on this form was the “Attending Physician’s Statement.”
This part of the form was completed by Dr. Timothy Kelly,
another physician affiliated with Fairbanks Hospital,
who listed the disability as “Alcoholism 303.90” and stated
that the “Dates of services” were “7.29.00 to 8.10.00.”5
Because a different physician had completed this form
and because the dates of services varied slightly from
the dates given on the Certification, Gordon contacted the
5
The number 303.90 is the code for alcohol dependence in the
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, commonly referred to as the DSM-IV. The DSM-IV is
the most widely used psychiatric reference book in the world,
according to its publisher, the American Psychiatric Association.
6 No. 04-2460
patient records department at Fairbanks Hospital to
clarify the dates that Chalimoniuk was at Fairbanks. A
clerk at Fairbanks told her that Chalimoniuk had been
admitted to the hospital on August 4. Gordon then con-
tacted the Department of Labor to determine what part of
Chalimoniuk’s absence was covered by the FMLA. The
Department of Labor referred her to the regulation on
substance abuse. Subsection (d) of the relevant regula-
tion provides:
Substance abuse may be a serious health condition if
the conditions of this section are met. However, FMLA
leave may only be taken for treatment for substance
abuse by a health care provider or by a provider of
health care services on referral by a health care
provider. On the other hand, absence because of the
employee’s use of the substance, rather than for
treatment, does not qualify for FMLA leave.
29 C.F.R. § 825.114(d). Based on her discussion with
the Department of Labor, her call to the records clerk and
her reading of the regulation, Gordon concluded that
Chalimoniuk’s absences on July 29, August 2 and August
3 were not covered by the FMLA because those absences
were not for treatment as that term is defined by the
FMLA. Under company policy, Chalimoniuk accrued ten
points for his absences on those days, resulting in thirty-
three total points.
When Chalimoniuk returned to IBC on August 15, he
met with defendant Tonia Gordon, a union representa-
tive, the head of the Cake Department (the Muffins
Department was part of the Cake Department), and
an assistant production manager. At this meeting,
Chalimoniuk confirmed that he entered the hospital on
August 4, and Gordon told him that the company was
discharging him for exceeding the allowable number of
points under its absenteeism policy. The parties dispute
No. 04-2460 7
whether Chalimoniuk was intoxicated on July 29, August
2, and August 3, but there is no disagreement over two
operative facts: Chalimoniuk was absent from work on
those days and he did not commence inpatient treatment
for alcoholism at Fairbanks Hospital until August 4.
Chalimoniuk sued IBC and Gordon, alleging that his
termination constituted a wrongful denial of FMLA
benefits in violation of 29 U.S.C. § 2615(a)(1).6 The dis-
trict court found that Chalimoniuk lacked evidence that
he was in treatment for alcoholism on July 29, August 2
and August 3, and therefore granted summary judg-
ment in favor of the defendants. Chalimoniuk appeals.
II.
On appeal, Chalimoniuk argues that the defendants
should be estopped from challenging the sufficiency of his
medical Certification because they did not do so at the
time he submitted it. He contends that the defendants
also should not be permitted to contest the validity of
his Certification after ignoring the procedures set forth
in 29 U.S.C. §§ 2613(c)-(d). Chalimoniuk asserts that
summary judgment was entered improperly because
there are disputed issues of material fact regarding
whether he received treatment on July 31, August 2 or
August 3. Our review is de novo. Global Relief Found., Inc.
v. New York Times Co., 390 F.3d 973, 981 (7th Cir. 2004);
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th
6
In his complaint, Chalimoniuk also alleged that the defend-
ants discriminated against him for asserting his rights under
the FMLA, in violation of 29 U.S.C. § 2615(a)(2). He also as-
serted state law claims for breach of contract and for equitable
relief. The district court granted summary judgment in favor
of the defendants on those claims, which are not at issue in this
appeal.
8 No. 04-2460
Cir. 2002); Smith v. Severn, 129 F.3d 419, 425 (7th Cir.
1997). Summary judgment is appropriate when there is
no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). We view the record in the light most
favorable to the non-moving party and draw all reason-
able inferences in that party’s favor. Global Relief, 390
F.3d at 981. The applicable substantive law will dictate
which facts are material. Global Relief, 390 F.3d at 981;
McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 298 (7th
Cir. 1996).
The substantive law at issue is the FMLA. Under the
FMLA, eligible employees are entitled to up to twelve
weeks of unpaid leave per year for absence due to, among
other things, a “Serious Health Condition” that renders
the employee unable to perform the functions of his or
her job. 29 U.S.C. § 2612(a)(1)(D); Kauffman v. Federal
Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). To ensure
the entitlement, the FMLA makes 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); Kauffman, 426 F.3d at 884. When
an employee alleges a deprivation of the substantive
guarantees of the FMLA, the employee must establish, by
a preponderance of the evidence, an entitlement to the
disputed leave. Rice v. Sunrise Express, Inc., 209 F.3d
1008, 1017 (7th Cir. 2000); King v. Preferred Technical
Group, 166 F.3d 887, 891 (7th Cir. 1999); Diaz v. Fort
Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997).
Because the district court resolved the case on a motion
for summary judgment, Chalimoniuk need only raise a
genuine issue of material fact regarding his entitlement
to FMLA leave on the relevant dates.
A Serious Health Condition is defined as an illness,
injury, impairment, or physical or mental condition that
No. 04-2460 9
involves either (1) inpatient care in a hospital, hospice, or
residential medical facility; or (2) continuing treatment
by a healthcare provider. 29 U.S.C. § 2611(11). Although
the statute itself does not specifically address whether
alcoholism or substance abuse constitute serious health
conditions, Department of Labor regulations that imple-
ment the statute provide the answer. As we noted above,
substance abuse may be a Serious Health Condition
under certain conditions but FMLA leave may be taken
only for treatment for substance abuse. 29 C.F.R.
§825.114(d). On the other hand, absence because of the
employee’s use of the substance, rather than for treat-
ment, does not qualify for FMLA leave. Under this regula-
tion, Chalimoniuk was entitled to FMLA leave only for
treatment for substance abuse. Because of the final
sentence in the regulation, the parties argue over wheth-
er Chalimoniuk was intoxicated on July 31, August 2 or
August 3, but we will assume for the purposes of sum-
mary judgment that he was not intoxicated on those days.
Even if he was sober on those days, however, he has
provided no explanation for his absence that would excuse
the absence under IBC’s point system except that he was
in treatment for alcoholism. We turn, therefore, to whether
Chalimoniuk has enough evidence to create a genuine
issue of fact regarding whether he was in treatment
for alcoholism on those days.
Chalimoniuk concedes he was not in inpatient treat-
ment at Fairbanks Hospital for alcoholism until August 4.
The question, then, is whether Chalimoniuk was in in-
patient treatment at some other facility, or outpatient
treatment on July 31, August 2 and August 3 that ren-
dered him unable to work on those days. Chalimoniuk
contends that his medical Certification either (1) ade-
quately certified that he was in treatment for alcoholism
from July 29 through August 11, or (2) was incomplete or
invalid, creating a duty for his employer to alert him to
10 No. 04-2460
the deficiency and allow him an opportunity to cure it.
As we noted above, the second question on the medical
Certification directs the healthcare provider completing
the certification to indicate whether the patient’s condi-
tion qualifies as a Serious Health Condition under the
FMLA, and if so, to indicate which category applies. The
form explains that a “Serious Health Condition” means
an illness, injury, impairment, or physical or mental
condition that involves one of six scenarios. The first
choice is hospital care, and Dr. Pfeifer did not check that
selection. Instead he checked the second category, titled
“Absence Plus Treatment.” To meet that category, the
illness must involve, in relevant part, a period of incapac-
ity of more than three consecutive days that also involves
(1) treatment two or more times by a health care provider
or (2) treatment by a health care provider on at least one
occasion which results in a regimen of continuing treat-
ment under the supervision of the health care provider.
The form specifies that “Treatment” includes “examina-
tions to determine if a serious health condition exists
and evaluation of the condition. Treatment does not
include routine physical examinations, eye examina-
tions, or dental examinations.” A “regimen of continuing
treatment” includes a course of prescription medication
or therapy requiring special equipment but does not
include taking over-the-counter medications or any
activities that can be initiated without a visit to a health
care provider. Finally, the form provides that “incapacity,”
for the purposes of FMLA, is defined as, among other
things, an inability to work due to a serious health condi-
tion, treatment therefor, or recovery therefrom. In the case
of substance abuse, the regulations provide that the
relevant period of incapacity is the time the employee
is unable to work due to treatment.
The form does not contemplate the special issues relat-
ing to substance abuse and does not alert the health care
No. 04-2460 11
provider completing the form that a worker suffering
from alcohol or substance addiction is entitled to FMLA
leave only for incapacity caused by treatment and not
for the incapacity caused by the addiction itself. Thus
the form requests the date the condition commenced, the
probable duration of the condition, and the probable
duration of the patient’s incapacity if that period is
different from the duration of the condition. The person
filling out the form would have to know from the regula-
tions that, in the case of alcoholism, the relevant period
of incapacity is the treatment period, which may well
differ from the probable duration of the condition itself.7
This is the area of the form where Dr. Pfeifer should
have listed the dates of treatment for alcoholism. Dr.
Pfeifer indicated that the condition was alcohol depend-
ence and acute withdrawal syndrome, with hospitaliza-
tion for treatment of the withdrawal symptoms, and as
we noted above, he listed the dates requested as July 29
through August 11, with an anticipated return date of
August 14.
When Gordon saw that the insurance form was com-
pleted by a different doctor and used slightly different
dates, she called Fairbanks Hospital for clarification. The
regulations did not permit Gordon to take this action. The
regulations provide that when an employee submits a
complete certification, signed by the health care provider,
7
Although we realize that the form cannot provide for every
contingency, an update to include the special requirements
for substance abuse, the sole condition treated differently from
every other “Serious Health Condition” under the FMLA, would
be helpful to employees and employers alike. The physicians
who complete the forms are undoubtedly less familiar with the
details of the regulations than are the lawyers dissecting
them after the fact.
12 No. 04-2460
the employer may not request additional information
from the employee’s health care provider. However, 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.
29 C.F.R. § 825.307; Harrell v. U.S. Postal Serv., 445 F.3d
913, 928-29 (7th Cir.); cert. denied, 127 S. Ct. 845 (2006).
Gordon did not request consent from Chalimoniuk,
Chalimoniuk did not give his consent, and Gordon was
not a “health care provider representing the employer.”
Although other statutes may provide recourse to
Chalimoniuk for this unauthorized contact with his
health care provider, the FMLA provides no remedy
unless the action interfered with, restrained or denied
Chalimoniuk’s exercise of his rights under the FMLA. See
29 U.S.C. §§ 2615(a)(1), 2617; Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002) (section 2617
affords no relief unless the employee has been prejudiced
by the violation); Harrell, 445 F.3d at 928-29 (same). Of
course, there could be no interference if Chalimoniuk had
no right to FMLA leave on the three days in question.
The regulations also provide that, when an employer
finds a certification incomplete, the employer must advise
the employee of this fact and provide the employee a
reasonable opportunity to cure any deficiency in the
certification. 29 C.F.R. § 825.305(d). Chalimoniuk com-
plains that IBC and Gordon failed to advise him that
his Certification was incomplete and failed to give him
an opportunity to cure any deficiency. IBC contends
that the Certification was not incomplete, however.
Dr. Pfeifer supplied all of the required information. IBC
and Gordon denied FMLA leave not because the Certifica-
tion was incomplete but because they believed it was
inaccurate; they believed that the Certification overstated
the time period that Chalimoniuk was in treatment. But
No. 04-2460 13
even if IBC was obliged to advise Chalimoniuk that
his certification was incomplete, there was no harm
caused by IBC’s breach of this obligation unless
Chalimoniuk would have been able to cure the deficiency
in a manner that entitled him to FMLA leave. This
scenario is distinguishable from the facts presented to
us in Kauffman, the case on which Chalimoniuk relies.
In Kauffman, the physician filling out the form indicated
that the employee was incapacitated for more than three
days but then listed a single date in response to the
question regarding the date the condition commenced
and the probable duration of the condition. The em-
ployee was able to demonstrate that, had he been given
the opportunity to cure this deficiency, he could have
shown that he was in fact incapacitated for more than
three days and was actually entitled to FMLA leave. Thus,
the employer’s breach of the obligation to notify him of the
deficiency and offer a chance to cure it resulted in the loss
of FMLA leave to which he was entitled. 426 F.3d at 886-
87. Because (as we shall see) Chalimoniuk cannot demon-
strate that he was actually entitled to FMLA leave, IBC’s
breach of its duty to offer him an opportunity to cure
deficiencies caused him no harm, and he may not re-
cover for that breach under the FMLA. Ragsdale, 535
U.S. at 89; Harrell, 445 F.3d at 928-29.
Chalimoniuk next points out that the regulations pro-
vide that an employer who “has reason to doubt the
validity of a medical certification may require the em-
ployee to obtain a second opinion at the employer’s ex-
pense.” 29 C.F.R. § 825.307(a)(2). See also 29 U.S.C.
§ 2613(c) (“In any case in which the employer has reason
to doubt the validity of the certification provided under
subsection (a) of this section for leave under subpara-
graph (C) or (D) of section 2612(a)(1) of this title, the
employer may require, at the expense of the employer,
that the eligible employee obtain the opinion of a second
14 No. 04-2460
health care provider designated or approved by the
employer concerning any information certified under
subsection (b) of this section for such leave.”). Chalimoniuk
contends that because the defendants failed to require
him to provide a second opinion, they may not now con-
test the validity or accuracy of his Certification. The few
courts to analyze the language of that provision have
found that the request for a second opinion is permissive,
not mandatory. See Rhoads v. FDIC, 257 F.3d 373, 385-86
(4th Cir. 2001) (because the term “may” is permissive, the
plain language of the FMLA does not suggest that an
employer must pursue these procedures or be forever
foreclosed from challenging whether an employee suf-
fered from a serious health condition); Stekloff v. St.
John’s Mercy Health Sys., 218 F.3d 858, 860 (8th Cir.
2000) (same). We need not decide whether IBC was
required to ask Chalimoniuk for a second opinion because
the FMLA provides no remedy for the possible violation
unless the action interfered with, restrained or denied
Chalimoniuk’s exercise of his rights under the FMLA. See
29 U.S.C. §§ 2615(a)(1), 2617; Ragsdale, 535 U.S. at 89;
Harrell, 445 F.3d at 928-29. Of course, an employer
who bypasses this step risks denying FMLA leave to
an employee who is entitled to the leave, rendering
the employer liable for lost wages, benefits, interest,
attorney’s fees, costs and other damages as provided by
29 U.S.C. § 2617. At the time IBC denied FMLA leave
to Chalimoniuk, the company believed he was not receiv-
ing inpatient treatment at Fairbanks Hospital during
the three days in question, but as far as we can tell
from the record, the company did not know and did not
inquire whether Chalimoniuk was in some other treat-
ment program during that time, or at some other facility.
As we shall see, the company was correct that
Chalimoniuk was not in treatment during those three
days.
No. 04-2460 15
The only remaining question is whether Chalimoniuk
can demonstrate a genuine issue regarding treatment on
the three days in question, treatment that rendered him
unable to work. Chalimoniuk’s only evidence of treatment
is Dr. Pfeifer’s Certification. Dr. Pfeifer confirmed that
Chalimoniuk received inpatient treatment at Fairbanks
from August 4 until August 11. He produced no records
and had no recollection of treating Chalimoniuk prior to
that time. Chalimoniuk provided an affidavit from Dr.
Pfeifer stating the doctor’s belief that “treatment” for
alcoholism begins when the patient takes the first step
towards seeking professional help. According to Dr. Pfeifer,
this includes the first phone call to the health care pro-
vider seeking evaluation, treatment or referral. Based on
his training and experience as a medical doctor, Dr. Pfeifer
averred that Chalimoniuk’s treatment therefore began on
July 29, when he first contacted his physician’s office.
Under the FMLA, however, “treatment” is a defined term
that does not include actions such as calling to make an
appointment. Treatment would include examinations to
determine if a serious health condition exists and evalua-
tion of the condition. But Chalimoniuk has produced no
evidence that he was being examined or evaluated on
July 29, August 2 or August 3. Treatment does not in-
clude “any activities that can be initiated without a visit
to a health care provider.” Chalimoniuk complains that
memories have faded since the time of his termination,
that his doctors could have testified regarding his treat-
ment on those days if he had known closer to the time
that the company was challenging the fact of treatment
on the days in question.8 But Chalimoniuk knew as of
8
As evidence that he was being treated for alcoholism on the
three relevant days, Chalimoniuk also points to the insurance
form signed by Dr. Kelly. Recall that this form listed the “Dates
(continued...)
16 No. 04-2460
August 15, days after his treatment ended, that the
company was denying him FMLA leave for all of the days
he was absent except the period of his hospitalization.
He had ample opportunities to preserve any relevant
evidence. Thus, because Chalimoniuk has produced no
evidence that he received any treatment as that term is
defined by the FMLA on the days in question, he was not
entitled to FMLA leave on those dates. Because he had
exceeded the number of points allowable under IBC’s
absenteeism policy, the defendants were free to termi-
nate his employment without running afoul of the FMLA.
AFFIRMED.
8
(...continued)
of services” as “7.29.00 to 8.10.00.” The record contains no
medical records regarding treatment by Dr. Kelly (or any other
health care provider) on the three relevant days. Dr. Kelly signed
a letter to Chalimoniuk’s regular physician, Dr. James Kluzinski,
stating that Chalimoniuk had given his permission to inform
Dr. Kluzinksi that Chalimoniuk was admitted to Fairbanks
Hospital on August 4. The Fairbanks Hospital “Initial Screening”
form indicates that Chalimoniuk’s initial evaluation was con-
ducted on August 4. The insurance form was completed and
submitted for a purpose other than FMLA leave, and contained
no definition of “services” as that term was used on the form. Nor
is there any indication on this form that Chalimoniuk was in
treatment that rendered him unable to work on the three days
in question. In light of the complete absence of any evidence
in the record that the term “services” included “treatment” as
defined by the FMLA, the insurance form is inadequate to
create a genuine issue of material fact regarding whether
Chalimoniuk was in treatment on July 31, August 2 or August 3.
No. 04-2460 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-11-08