James Hansen v. Fincantieri Marine Group, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3391
JAMES G. HANSEN,
Plaintiff-Appellant,
v.
FINCANTIERI MARINE GROUP, LLC, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:12-cv-00032-WCG — William C. Griesbach, Chief Judge.
____________________
ARGUED MAY 19, 2014 — DECIDED AUGUST 18, 2014
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. James Hansen sued his former em-
ployer, Marinette Marine Corporation, and its parent com-
pany, Fincantieri Marine Group, LLC (collectively FMG) in
federal district court in Wisconsin, alleging violations of the
Family and Medical Leave Act of 1993 (FMLA or Act), 29
U.S.C. §§ 2601–2654. He claims that FMG interfered with his
rights under the FMLA and terminated his employment in
retaliation for his exercise of rights under the Act.
2 No. 13-3391
The district court granted summary judgment in favor of
FMG. The court ruled that without expert testimony Hansen
could not show that his serious health condition rendered
him unable to work (i.e., perform one or more of the essen-
tial functions of his position) during the absences for which
he claims he was entitled to FMLA leave and for which he
was terminated, and Hansen had no such testimony. Be-
cause the law does not require a plaintiff to present expert
testimony as to his incapacity, and Hansen’s evidence has
raised a genuine issue of material fact for trial, we vacate the
district court’s judgment and remand for further proceed-
ings consistent with this opinion.
I. Background
Hansen was employed by FMG, which has an attendance
policy. Under the policy, employees accumulate points for
unexcused absences from work. An employee incurs one
point for missing more than four hours of a scheduled work
day. A point expires one year after it was incurred and then
is deducted from an employee’s total number of points.
When an employee incurs ten or more points within a year,
his employment is subject to termination. FMLA leave is not
counted under the attendance policy. FMG’s third party ad-
ministrator, Matrix Absence Management, Inc., administers
the attendance policy.
As of May 2, 2011, Hansen had nine attendance points.
He was absent from work four days from May 3 through
May 6, and on May 9. On May 3, he requested FMLA leave
for his serious health condition: depression. On May 11,
FMG received a medical certification from Hansen’s physi-
cian, Dr. Michael Post, stating that Hansen had a condition
that would cause episodic flare-ups periodically preventing
No. 13-3391 3
him from performing his job functions. The physician wrote
that Hansen “could not concentrate on [the] task at hand.”
Dr. Post indicated that the condition commenced in October
2010 and was exacerbated on May 3, 2011. He stated that the
probable duration of the condition was “months” and esti-
mated the frequency of flare-ups as four episodes every six
months and the duration of the related incapacity as two to
five days. Based on Dr. Post’s certification, Hansen’s absenc-
es earlier that month were approved as FMLA leave and he
did not incur any attendance points because of them.
Hansen requested FMLA leave for May 23, and May 31–
June 1, and again for June 13–June 15. He was granted
FMLA leave for those absences and incurred no attendance
points for them. Hansen next requested FMLA leave for June
22 and 27. Matrix initially denied these requests, but FMG
overruled it and granted Hansen FMLA leave. So Hansen
also incurred no attendance points for these absences.
Next, Hansen requested FMLA leave for an absence on
July 1 (his eighth episode). On July 6, Matrix sent Dr. Post a
fax, indicating that the July 1 absence “is out of his frequency
and duration. Please confirm item #7.” Item #7 on the medi-
cal certification form asks about the employee’s need to at-
tend follow-up appointments or work part-time or on a re-
duced schedule because of the employee’s condition. It
seems Matrix intended to seek confirmation about Item #8
on the certification form, which asks about the estimated
frequency and duration of episodic flare-ups as well as the
duration of the related incapacity. That same date, Dr. Post
faxed back his response to Matrix: “Item #7 confirmed.”
Based on this confirmation, Matrix denied Hansen’s request
4 No. 13-3391
for FMLA leave because his “[f]requency [was] exceeded.”
Hansen incurred one attendance point as a result.
Hansen requested FMLA leave for absences on July 11–
13 (his ninth episode) and again on July 18 (his tenth epi-
sode). Matrix denied these requests, indicating that Hansen’s
“[f]requency [was] exceeded.” Hansen therefore incurred
one attendance point for each day he was absent. As a result,
he had accumulated thirteen points in one year. (Some of his
points had expired and had been deducted from his point
total, so he did not exceed ten points sooner.)
On July 22, FMG met with Hansen and terminated his
employment for violating its attendance policy. FMG ex-
plained that he “exceeded [his] frequency” under which he
could “miss 4 times every 6 months” and that “Matrix called
your doctor and there was no change in your certification.”
Hansen asked if there was “any way to reverse any of the
dates?” and was told to “[g]et a hold of Matrix.”
Subsequently, on July 26, Dr. Post sent FMG and Matrix a
letter, indicating that he was modifying his original certifica-
tion: he was increasing the period of incapacity “to cover the
entire year of 2011 until December 31” and “[w]ith further
insight into [Hansen’s] clinical course,” he was “amending
question 8’s answer to increase[e] the frequency [of epi-
sodes] to once a month for a duration of 2–5 days per epi-
sode.” The letter did not mention or refer to Hansen’s July
absences. FMG did not retract its termination of Hansen’s
employment.
Hansen sued FMG under the FMLA alleging claims of in-
terference and retaliation. The retaliation claim stands or
No. 13-3391 5
falls with his interference claim. 1 FMG moved for summary
judgment, arguing that Hansen was not entitled to FMLA
leave for his July 2011 absences because he significantly ex-
ceeded the estimated frequency in Dr. Post’s medical certifi-
cation. The district court denied FMG’s motion, noting that it
appeared Hansen was taking off more time than was medi-
cally necessary, but it was not so clear as to justify summary
judgment. Shortly before trial, however, FMG sought recon-
sideration, arguing that Hansen needed expert medical tes-
timony to establish that he was incapacitated due to his seri-
ous health condition during the July 2011 absences and that
he had none. The court agreed, concluding that expert medi-
cal testimony was required to prove that Hansen’s serious
health condition rendered him unable to perform the func-
tions of his position during the absences for which he sought
FMLA leave. It therefore decided that Hansen could not es-
tablish entitlement to FMLA leave and granted FMG sum-
mary judgment on all claims. Hansen appealed.
II. Discussion
On appeal, Hansen asks us to decide two issues: 1)
whether an employer is allowed to deny intermittent FMLA
leave when an eligible employee exceeds the estimated
length or duration provided in his medical certification
form, and 2) whether a plaintiff-employee is required to pre-
sent expert testimony at trial to prove that he was incapaci-
tated for each day for which he requested FMLA leave. FMG
responds that Hansen cannot prove a prima facie case of
1 If Hansen was entitled to take leave under the FMLA for his July ab-
sences, he can establish a prima face case of FMLA retaliation: It is un-
disputed that he incurred attendance points for those absences, and
those points led to the termination of his employment.
6 No. 13-3391
FMLA discrimination and retaliation without an expert wit-
ness or medical documentation to show that his July 2011
absences were medically necessary. FMG also claims that
Hansen’s appeal is frivolous and seeks sanctions under Rule
38 of the Federal Rules of Appellate Procedure. We conclude
that the district court erred in deciding that Hansen needed
expert testimony to prove that his serious health condition
rendered him unable to perform the functions of his job on
the specific dates at issue. Hansen has evidence that raises a
reasonable inference that he was entitled to FMLA leave for
his July 2011 absences; therefore, we reverse the district
court’s grant of summary judgment and deny FMG’s request
for sanctions.
We review the grant of summary judgment de novo, view-
ing the record and drawing all reasonable inferences in the
light most favorable to the non-moving party. Spurling v. C
& M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). Sum-
mary judgment is appropriate if the moving party “shows
that there is no genuine dispute as to any material fact and
[he] is entitled to judgment as a matter of law.” Id. (quota-
tion marks and citation omitted). We will reverse a grant of
summary judgment if there is “a material issue of fact … that
would allow a reasonable jury to find in favor of the non-
moving party.” Id. “A ‘court may not … choose between
competing inferences or balance the relative weight of con-
flicting evidence; it must view all the evidence in the record
in the light most favorable to the non-moving party and re-
solve all factual disputes in favor of the non-moving party.’”
Orton-Bell v. Indiana, No. 13-1235, --- F.3d ---, 2014 WL
3566338, at *4 (7th Cir. July 21, 2014) (quoting Abdullahi v.
City of Madison, 423 F.3d 763, 773 (7th Cir. 2005)).
No. 13-3391 7
A. The FMLA
The FMLA provides that an eligible employee may take
up to twelve weeks of leave during any twelve-month peri-
od if he is unable to perform the functions of his position be-
cause of a serious health condition. 29 U.S.C. § 2612(a)(1)(D).
An employer is prohibited from interfering with the exercise
of or the attempt to exercise any right under the FMLA.
James v. Hyatt Regency Chi., 707 F.3d 775, 780 (7th Cir. 2013)
(citing 29 U.S.C. § 2615(a)(1)). And it is unlawful for an em-
ployer to retaliate against an employee who exercises or at-
tempts to exercise FMLA rights. Id. at 781 (citing 29 U.S.C.
§2615(a)(2)). To prevail on his interference claim, Hansen
must show, among other things, that he was entitled to take
leave under the FMLA for his July absences. Id. This is the
focus of this appeal.
“An employee is entitled to leave under the FMLA if (1)
she is afflicted with a ‘serious health condition,’ and (2) that
condition renders her unable to perform the functions of her
job.” Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th
Cir. 2011) (quoting Caskey v. Colgate-Palmolive Co., 535 F.3d
585, 590 (7th Cir. 2008)). A “serious health condition” is de-
fined in part as “an illness, … impairment, or … mental con-
dition that involves … continuing treatment by a health care
provider,” 29 U.S.C. § 2611(11)(B), and a “period of incapaci-
ty,” 29 C.F.R. 825.115 (2009). “Incapacity” means the “inabil-
ity to work … or perform other regular daily activities due to
the serious health condition.” 29 C.F.R. § 825.113(b). Because
“incapacity” means the employee is unable to work “due to
the serious health condition,” a finding of incapacitation
goes toward the second prong of our analysis as to when an
8 No. 13-3391
employee is entitled to leave. See Ames, 629 F.3d at 669.
While “incapacity” and “serious health condition” are inter-
related, as the definitions make clear, they are not inter-
changeable terms.
Some serious health conditions may be chronic, causing
episodic rather than a continuous incapacity. Stoops v. One
Call Commc’ns, Inc., 141 F.3d 309, 312 (7th Cir. 1998) (citing 29
C.F.R. § 825.114(a)(2)(iii)(C)). Therefore FMLA leave “may be
taken intermittently … when medically necessary.” Stoops,
141 F.3d at 312 (citing 29 U.S.C. § 2612(b)(1)); see also 29
C.F.R. § 825.202(b) (“For intermittent leave … because of
one’s own serious health condition, … there must be a medi-
cal need for leave … .”).
When an employee initially requests FMLA leave, the
employer may take the employee at his word and grant the
request, or “may request certification by the employee’s
healthcare provider.” Kauffman v. Fed. Exp. Corp., 426 F.3d
880, 886 (7th Cir. 2005) (citing 29 U.S.C. § 2613(a)). If certifi-
cation is requested, the employee must provide it “in a time-
ly manner.” 29 U.S.C. § 2613(a); see 29 C.F.R. § 825.305(b).
The health care provider’s certification for intermittent leave
“shall be sufficient” if it provides the date the serious health
condition began, its probable duration, appropriate medical
facts about the condition, “a statement that the employee is
unable to perform the functions of [his] position, … a state-
ment of the medical necessity for the intermittent leave …,
and the expected duration of the intermittent leave… .” 29
U.S.C. § 2613(b)(1)–(3), (4)(B) and (6); see also Ridings v. River-
side Med. Ctr., 537 F.3d 755, 768 (7th Cir. 2008); 29 C.F.R.
§ 825.306(a)(7) (requiring certification for intermittent leave
to include “an estimate of the frequency and duration of the
No. 13-3391 9
episodes of incapacity” (emphasis added)). The regulations
suggest that “the employee’s submission of a complete med-
ical certification is sufficient to trigger FMLA protection un-
less and until there is contrary medical evidence.” Smith v.
Univ. of Chi. Hosps., No. 02 C 0221, 2003 WL 22757754, at *8
(N.D. Ill. Nov. 20, 2003).
The regulations provide that “[t]he employer shall advise
an employee whenever the employer finds a certification in-
complete or insufficient, and shall state in writing what ad-
ditional information is necessary to make the certification
complete and sufficient.” 29 C.F.R. § 825.305(c). 2 If a certifi-
cation is incomplete or insufficient, the employer must pro-
vide the employee an opportunity to cure the deficiency.
E.g., Ridings, 537 F.3d at 768; 29 C.F.R. § 825.305(d). Accord
Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir.
2007) (recognizing that “other courts will impose [the duty
to inform the employee of a deficiency in a certification and
provide a reasonable opportunity to cure] on employers
when the FMLA certification is merely ‘inadequate,’ rather
than ‘incomplete’”) (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)). If the employee fails to provide a complete and suffi-
cient certification, despite the opportunity to cure a deficien-
cy, “the employer may deny the taking of FMLA leave.” 29
C.F.R. § 825.305(d). Notably, the regulations do not author-
2 “A certification is considered incomplete if the employer receives a cer-
tification, but one or more of the applicable entries have not been com-
pleted” and “[a] certification is considered insufficient if the employer
receives a complete certification, but the information provided is vague,
ambiguous, or non-responsive.” 29 C.F.R. § 825.305(c).
10 No. 13-3391
ize the employer to deny FMLA leave where the employee
fails to provide a complete and sufficient certification but is
not given the opportunity to cure the deficiency.
“The FMLA circumscribes the employer’s right to chal-
lenge a physician’s certification that leave is FMLA-
qualifying.” Stoops, 141 F.3d at 313 (citing 29 U.S.C. § 2613).
The employer may require that the employee obtain a sec-
ond opinion regarding information provided in the certifica-
tion. 29 U.S.C. § 2613(c). If the second opinion differs from
the opinion in the certification provided by the employee,
the employer may require that the employee obtain a third
opinion, which “shall be considered to be final and shall be
binding on the employer and the employee.” Id. § 2613(d)(2).
The regulations authorize an employer to request recertifica-
tion if “[c]ircumstances described by the previous certifica-
tion have changed significantly (e.g., the duration or fre-
quency of the absence …).” 29 C.F.R. § 825.308(c)(2); see also
Holder v. Ill. Dep’t Corrs., 751 F.3d 486, 494 (7th Cir. 2014)
(noting that the employer could have “immediately ask[ed]
for more proof of legitimacy” of the need for FMLA leave).
As part of recertification, “the employer may provide the
health care provider with a record of the employee’s absence
pattern and ask the health care provider if the serious health
condition and need for leave is consistent with such a pat-
tern.” 29 C.F.R. § 825.308(e).
B. Proving Incapacity
Hansen argues that the district court erred in deciding
that a plaintiff needs expert testimony to prove that he was
incapacitated each day for which he requested FMLA leave
due to his serious health condition. Hansen did not identify
No. 13-3391 11
Dr. Post as an expert witness; he is a fact witness only. Han-
sen has no expert witness for trial.
FMG relies on Caskey v. Colgate-Palmolive Co., 535 F.3d
585, 591 (7th Cir. 2008), and Haefling v. United Parcel Serv.,
Inc., 169 F.3d 494 (7th Cir. 1999), to support its argument that
Hansen needed expert testimony to establish entitlement to
FMLA leave, specifically to prove incapacity on the days at
issue. But neither case provides such support. Instead, they
stand for the unsurprising proposition that a plaintiff needs
some medical evidence to establish a serious health condi-
tion. See Caskey, 535 F.3d at 591 (concluding that plaintiff’s
“general testimony that her condition was serious is insuffi-
cient to raise a genuine issue of material fact” as to whether
she had a serious health condition entitling her to FMLA
leave); Haefling, 169 F.3d at 500–01 (concluding the evidence
was insufficient to raise a genuine issue of fact as to whether
plaintiff suffered from a serious health condition where
plaintiff had no affidavit from his doctor or any other medi-
cal personnel demonstrating the necessity of the treatments
he allegedly received; plaintiff’s own testimony regarding
the severity of his condition and the treatment it required
were insufficient to raise an issue of fact). FMG cites no con-
trolling authority directly on the issue of whether an em-
ployee’s initial medical certification is sufficient to make out
a prima face case for FMLA leave, or whether expert testi-
mony is required to establish incapacity where the employee
suffers from a chronic condition like depression. Indeed, in
Haefling, we looked to the plaintiff’s own diary and his dep-
osition testimony in addressing whether he could establish a
genuine issue of fact as to his incapacity. 169 F.3d at 499–500.
Thus, Haefling actually supports Hansen’s view that he does
not need expert testimony to establish incapacity.
12 No. 13-3391
Other circuits have held that lay testimony combined
with medical testimony raises a genuine issue of material
fact as to incapacity. See Schaar v. Lehigh Valley Health Servs.,
Inc., 598 F.3d 156, 161 (3d Cir. 2010) (holding that “[s]ome
medical evidence is still necessary” and that an employee
can create a genuine issue of material fact as to incapacity
“through a combination of expert medical and lay testimo-
ny”); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148–49 (8th
Cir. 2001) (holding that plaintiff’s own affidavit testimony
that she was “too sick to work” and her testimony concern-
ing her conversation with nurses about her condition com-
bined with her medical records created a genuine issue of
material fact regarding her incapacity). Two other circuits
have gone further and have held that lay testimony alone is
sufficient to create a genuine issue as to incapacity; expert
testimony is not required. Lubke v. City of Arlington, 455 F.3d
489, 495–96 (5th Cir. 2006) (holding expert testimony was not
necessary to demonstrate plaintiff’s incapacity); Marchisheck
v. San Mateo Cnty., 199 F.3d 1068, 1074 (9th Cir. 1999) (hold-
ing plaintiff’s declaration that “I just did not and could not
do anything for four or five days” creates “a disputed issue
of fact and precludes summary judgment on the issue of ‘in-
capacity’” notwithstanding medical evidence to the contra-
ry). But see Culpepper v. BlueCross BlueShield of Tenn., 321 F.
App’x 491, 496–97 (6th Cir. 2009) (holding that the plaintiff’s
“own subjective testimony that she was too sore from sur-
gery to work” was insufficient to establish that her absences
were covered by the FMLA where her medical certification
stated that she would need to be absent from work for two
episodes of incapacity lasting three days each).
The district court relied on Price v. City of Fort Wayne, 117
F.3d 1022 (7th Cir. 1997), to support its conclusion that Han-
No. 13-3391 13
sen needed medical testimony to establish incapacity on the
specific days in question. But Price does not require medical
testimony to prove incapacity; the issue there was whether
the plaintiff’s multiple diagnoses gave rise to a serious
health condition. Id. at 1025. It was undisputed that the
plaintiff was incapacitated by her multiple illnesses. See id.Dr. Post’s medical certification establishes that Hansen has a
serious health condition, and FMG has not contested that
certification.
Moreover, the regulations addressing “continuing treat-
ment” and “intermittent leave or reduced leave schedules”
anticipate that the determination whether an employee is
unable to work due to a serious health condition would not
necessarily be made by a medical professional. The “con-
tinuing treatment” regulation provides that “[a]bsences at-
tributable to incapacity … [due to a chronic serious health
condition] qualify for FMLA leave even though the employ-
ee … does not receive treatment from a health care provider
during the absence.” 29 C.F.R. § 825.115(f). As an example,
“an employee with asthma may be unable to report for work
due to the onset of an asthma attack.” Id. Another example:
“An employee who is pregnant may be unable to report to
work because of severe morning sickness.” Id. In neither ex-
ample would the employee necessarily seek treatment from
a health care provider. The “intermittent leave” regulation
similarly provides that “[i]ntermittent … leave may be taken
for absences where the employee … is incapacitated or una-
ble to perform the essential functions of the position because
of a chronic serious health condition …, even if he or she
does not receive treatment by a health care provider.” 29
C.F.R. § 825.202(b)(2). If the employee does not visit a health
care provider during the flare-up of the chronic condition
14 No. 13-3391
such as depression, the health care provider would not have
any personal knowledge about the employee’s claimed inca-
pacity that day. There would be no medical testimony about
the incapacity on that particular day and the only available
evidence to prove incapacity would be lay testimony. Thus,
the regulations support the conclusion that incapacity can be
established by lay testimony and expert medical testimony is
not required to prove the incapacity.
The district court erred in determining that Hansen was
required to present expert testimony to prove that his chron-
ic serious health condition rendered him unable to work on
the days in question. And Hansen has presented medical
documentation—his certification from Dr. Post—on the
question of incapacity. Even FMG acknowledges that the
medical certification can constitute evidence that the em-
ployee’s absences are FMLA qualifying. See Appellee’s Br.
32–33.
C. An Estimate Is Just That
FMG requested medical certification from Hansen’s
health care provider, and Hansen provided it, using the
form FMG had given to him for that purpose. Dr. Post certi-
fied that Hansen has a chronic serious health condition that
will cause episodic flare-ups, periodically preventing him
from performing his job functions. The certification set forth
the date the condition began (October 25, 2010), its probable
duration (“months”), and relevant medical facts about the
condition. The certification stated that because of the condi-
tion, Hansen was unable to perform one of his job functions:
he could not concentrate on the task at hand. Dr. Post certi-
fied that it was medically necessary for Hansen to be absent
from work during flare-ups. The form asked for the physi-
No. 13-3391 15
cian’s “best estimates” in answering questions about the fre-
quency or duration of a condition, treatment, etc. In particu-
lar, question #8 asked: “Will the condition cause episodic
flare-ups periodically preventing the employee from per-
forming his/her job functions?” Dr. Post put an “X” next to
the box indicating “Yes.” The question continued: “Based
upon the patient’s medical history and your knowledge of
the medical condition, estimate the frequency of flare-ups
and the duration of related incapacity that the patient may
have over the next 6 months … .” (emphasis added). Dr. Post
responded, “4 times per 6 months” lasting “2–5 day(s) per
episode.” The certification form requested an estimate, and
Dr. Post gave an estimate. Dr. Post’s certification was suffi-
cient to certify Hansen’s need for intermittent leave and
Hansen’s submission of the certification entitled him to
FMLA leave. See 29 U.S.C. § 2613(b)(1)–(3), (4)(B) and (6); 29
C.F.R. § 825.306(a)(7).
FMG suggests that Dr. Post’s certification constituted
hearsay. However, a health care provider’s medical certifica-
tion could be considered a record of a regularly conducted
activity and thus would be admissible under the business
records exception to the hearsay rule if the proper founda-
tion were laid. Fed. R. Evid. 803(6). Dr. Post is listed as a
witness for trial; he can provide the testimony necessary as
required by Rule 803(6). We have routinely relied on the
medical certifications of health care providers submitted by
employees to their employers to establish the employees’ en-
titlement to FMLA leave. See, e.g., Kauffman, 426 F.3d at 886–
87 (holding physician’s certification and addendum were
sufficient to certify that employee had serious health condi-
tion requiring him to miss more than three days of work and
vacating district court’s grant of summary judgment to em-
16 No. 13-3391
ployer); Darst v. Interstate Brands Corp., 512 F.3d 903, 911 (7th
Cir. 2008) (stating that “[the plaintiff’s] only evidence of
treatment is [his physician’s] Certification”).
Dr. Post’s certification establishes that Hansen has a seri-
ous health condition and that this condition periodically
renders him unable to perform the functions of his job. FMG
did not challenge the certification or require that Hansen ob-
tain a second opinion. Instead, it granted Hansen FMLA
leave on the basis of the certification and thus by its actions
approved the certification. When Hansen’s absences exceed-
ed the frequency of the flare-ups and duration of related in-
capacity estimated in the certification, FMG did not seek
recertification, despite its authorization do so under the cir-
cumstances. See 29 C.F.R. § 825.308(c)(2) (authorizing recerti-
fication if “[c]ircumstances described by the previous certifi-
cation have changed significantly (e.g., the duration or fre-
quency of the absence …)”); see also Holder, 751 F.3d at 494
(noting that the employer could have “immediately ask[ed]
for more proof of legitimacy” of the need for FMLA leave).
As part of recertification, FMG could have asked Dr. Post
whether Hansen’s condition and the need for leave were
consistent with the frequency and duration of his absences,
see 29 C.F.R. § 825.308(e), but FMG did not do that either.
FMG argues that Hansen’s entitlement to intermittent
FMLA leave is limited to the precise frequency and duration
stated in the certification. But the cited authorities do not
stand for such a sweeping proposition. See Culpepper, 321 F.
App’x 491; Harville v. Texas A&M Univ., 833 F. Supp. 2d 645(S.D. Tex. 2011); 29 C.F.R. §§ 825.202(b), 825.203, 825.220(c),
825.301(a); 6 Fed. Reg. 2197 (Jan. 6, 1995). For example, in
Culpepper, the plaintiff’s physician certified her for two sepa-
No. 13-3391 17
rate three-day periods of intermittent leave, and the plaintiff
provided only her own testimony that she was unable to
work beyond those two periods. 321 F. App’x at 493. The
court noted that the plaintiff “received exactly what her doc-
tor ordered—six days of FMLA leave.” Id. at 496. There was
no suggestion that the doctor’s certification was an estimate
of the needed leave; it appears to have been exact, which dis-
tinguishes Culpepper from this case. In Harville, the plaintiff
presented an initial medical certification for episodic leave
for up to three days per month and then presented a certifi-
cation for eight days of episodic leave per month; however,
she was absent from work “all of July, August 1–24, seven
days in September, fourteen days in October, all of Novem-
ber, and December 1–21.” 833 F. Supp. 2d at 650. The district
court granted summary judgment for the defendant where
“the plaintiff’s absences far exceeded the amount of her
medically permitted FMLA leave.” Id. at 653. Even if Harville
establishes that the medical certification limits the frequency
and duration of FMLA-qualifying leave, that case involved
leave that “far exceeded” what was stated in the certifica-
tion; the plaintiff was absent from work almost all the time.
Hansen’s absences were not so far in excess of the estimated
frequency and duration. And none of the other authorities
cited by FMG establish that the estimated frequency and du-
ration of intermittent leave act as absolute limits on the em-
ployee’s entitlement to leave.
Other courts have rejected arguments similar to FMG’s
“limitations argument.” In Fritz v. Phillips Serv. Indus., Inc.,
555 F. Supp. 2d 820 (E.D. Mich. 2008), for example, the plain-
tiff had surgery on his knee in 2003 for which he was grant-
ed FMLA leave. He claimed that a two day absence in May
2005 was because of the same “knee condition” for which he
18 No. 13-3391
was granted FMLA leave two years earlier and argued that
the employer could not terminate him for those absences. Id.
at 822, 826. The plaintiff’s 2003 FMLA request form stated
that he would need eight weeks off following surgery; it did
not refer to any continuing treatment or need for leave be-
yond that. The court rejected the employer’s attempt to rely
on the absence of certification for the need for leave beyond
the eight weeks post-surgery to justify the denial of FMLA
leave. Id. at 824–25. It decided that “[t]he absence of any cer-
tification that Plaintiff would require leave beyond the initial
eight-week recovery period” did not equate to “an explicit
certification that Plaintiff did not require any absence from
work due to his condition.” Id. at 825. In denying summary
judgment, the court reasoned that the employer was on no-
tice that the plaintiff had a serious health condition related to
his knee and should have inquired further into his reasons
for taking leave. Id. at 826. Like the certification in Fritz, Dr.
Post’s certification did not explicitly certify that Hansen
would not need leave beyond the estimated frequency or
duration.
In Sims v. Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d
1253 (N.D. Cal. 1998), the employee suffered a back injury
and provided his employer with a medical certification stat-
ing that he was unable to work from April 16 through April
25, 1994, and again from April 26 through May 1, 1994. Yet
the employee was absent from April 18 through May 3, and
the last two days of absence were a factor in the decision to
terminate his employment. The employee also provided a
certification from a chiropractor that covered all of his ab-
sences, but the chiropractor did not qualify as a “health care
provider” under the FMLA. Id. at 1255–56, 1265. The em-
ployer argued that because the last two days of the employ-
No. 13-3391 19
ee’s absence were not excused by a health care provider,
they were not protected by the FMLA and were properly
counted under its attendance policy. Id. at 1266. The court
reasoned that if the employer had notified the employee
“that it considered his certification to be incomplete,” id.,and had given him a reasonable opportunity to correct the
deficiency, it might agree. But because the employer never
informed the employee that his “certification was inade-
quate in any way,” the court held that the employer could
not deny leave under the FMLA based on the two-day insuf-
ficiency in the certification. Id. Similar to Sims, Hansen’s ab-
sences exceeded the frequency of absences predicted in his
certification, but FMG did not allow him to cure the defi-
ciency before firing him, so it could not deny him FMLA
leave based on the perceived insufficiency.
Moreover, if the frequency and duration stated in the cer-
tification set a limit to the employee’s entitlement to FMLA
leave, there would be no need for the regulation that author-
izes an employer to request recertification where the
“[c]ircumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of the ab-
sence …).” 29 C.F.R. § 825.308(c)(2) (emphasis added). This
regulation, as the district judge recognized, “contemplates
the precise situation present here where an employee’s fre-
quency of absences exceeds what is described in the initial
certification… .” Hansen v. Fincantieri Marine Group, LLC, No.
12-C-032, 2013 WL 2918329, at *4 (E.D. Wis. June 14, 2013).
FMG should have sought recertification when the frequency
of Hansen’s absences exceeded what was estimated in his
certification, rather than simply denying him leave.
20 No. 13-3391
Matrix may have attempted recertification with its fax to
Dr. Post; but its attempt was improper. An “employer must
give notice of a requirement for certification each time a cer-
tification is required.” 29 C.F.R. § 825.305(a). There is no evi-
dence that Matrix gave Hansen notice of its faxed communi-
cation to Dr. Post. And the regulations prevent an employer
from communicating directly with the employee’s health
care provider with a few exceptions not applicable here. See
29 C.F.R. § 825.307(a). Matrix erred in contacting Dr. Post di-
rectly. Besides, Matrix sought to confirm the prior certifica-
tion; it did not request certification for the absences that ex-
ceeded the estimated frequency and duration. And the fax
itself was horribly confused and confusing—it sought con-
firmation of Dr. Post’s response to the question about ongo-
ing treatment rather than the frequency of episodic flare-ups
and incapacity.
We reject the argument that the estimates in the certifica-
tion act as limitations on the frequency and duration of epi-
sodes for which an employee may be entitled to intermittent
leave under the FMLA. The certification requested, and Dr.
Post provided, his “estimate” of the frequency of the flare-
ups and duration of related incapacity. See 29 C.F.R.
§ 825.306(a)(7) (requiring a certification for intermittent leave
to include “an estimate of the frequency and duration of the
episodes of incapacity”) (emphasis added). As the district
court correctly stated, “[a]n estimate, by definition is not ex-
act and cannot be treated as a certain and precise schedule.”
Hansen, 2013 WL 2918329, at *5. If the certified frequency
and duration were limits on the employee’s entitlement to
leave, there would be no need to request recertification
when the employee’s requested leave exceeded the frequen-
cy or duration stated in the certification; “[t]he employer
No. 13-3391 21
could simply deny FMLA leave.” Id. at *6. At trial, Dr. Post
can testify as a fact witness as to the meaning of his esti-
mates.
Furthermore, FMG errs in asserting that Dr. Post’s certifi-
cation, his July 6 fax, and his July 26 letter establish the lack
of medical necessity for Hansen’s July 2011 absences. None
of these documents explicitly addresses the July absences.
While these documents could raise an inference of a lack of
medical necessity for absences exceeding the estimated fre-
quency, another reasonable inference can be drawn: the
documents simply do not address the medical necessity of
the July absences. The record does not show whether Dr.
Post even knew about the July absences. Nor does it reveal
whether he was ever asked if those absences were due to
Hansen’s depression, despite the fact that they exceeded the
frequency of episodes estimated in the certification. Matrix’s
July 6 fax to Dr. Post was so confused and confusing that Dr.
Post’s response thereto does not raise any reasonable infer-
ences. And it is unclear whether his July 26 letter was in-
tended to be prospective only. As noted, FMG could have
informed Dr. Post of Hansen’s July absences and asked Dr.
Post if Hansen’s condition and medical need for leave was
consistent with his absences, but it did not. It appears that
the district court chose between competing inferences, draw-
ing adverse inferences against Hansen, which was improper
at the summary judgment stage. See, e.g., Tolan v. Cotton, 134
S. Ct. 1861, 1863 (2014) (per curiam); see also Orton-Bell, 2014
WL 3566338, at *4 (at summary judgment, a court “may not
… choose between competing inferences”). Admittedly,
Hansen does not have abundant evidence to establish the
medical necessity of his July 2011 absences; but he does not
need abundant evidence to create a jury question.
22 No. 13-3391
Although the certification does not specifically cover the
July absences, the certified need for intermittent leave could
support a jury finding that Hansen’s chronic serious health
condition rendered him unable to work on the days in ques-
tion. We find guidance in the Third Circuit’s decision in
Schaar, 598 F.3d 156, and in Crowell v. Denver Health & Hosp.
Auth., No. 12-cv-00019-LTB-MEH, 2013 WL 788087 (D. Colo.
March 1, 2013). The issue in Schaar was whether the plaintiff
was entitled to take FMLA leave because she had a serious
health condition that involved a period of incapacity of more
than three days. Id. at 158–59. The plaintiff presented her
physician’s note that the plaintiff‘s illness prevented her
from working for two days, and the plaintiff testified that
she was incapacitated for an additional two days. The court
concluded that the combination of the physician’s opinion
and the plaintiff’s lay testimony created a material issue of
fact as to whether the plaintiff was incapacitated for more
than three days. Id. at 161. Although the court was address-
ing whether the plaintiff could establish that she had a seri-
ous health condition, its conclusion that the physician’s
opinion and the plaintiff’s testimony raised a material issue
of fact as to incapacity applies equally where the defendant
challenges whether a plaintiff can establish incapacity on
specific days for which FMLA leave was requested.
Even more on point is Crowell, where the plaintiff sus-
tained an arm and back injury in an accident and sought in-
termittent FMLA leave. Her physician completed a medical
certification stating that the plaintiff would be unable to
work for a continuous period of time. The certification also
stated that the “[p]laintiff’s condition would cause ‘episodic
flare-ups periodically preventing [her] from performing
[her] job functions’ that could occur up to 7 times a week
No. 13-3391 23
and last for up to an entire day.” Crowell, 2013 WL 788087, at
*2. The court determined that the certification could support
a finding that the plaintiff suffered from a chronic serious
health condition on the day she was absent from work de-
spite an “arguably inconsistent” certification from the same
physician that the plaintiff could return to work without re-
striction until she had shoulder surgery. Id. at *5. The court
also concluded that the physician’s certification that the
plaintiff would have “episodic flare-ups periodically pre-
venting [her] from performing [her] job functions” “could
support a determination that Plaintiff was unable to perform
one or more of the essential functions of her position” on the
day she was absent. Id. The plaintiff’s claims proceeded to
trial; ultimately the court granted the defendant judgment as
a matter of law upon concluding that the plaintiff had not
made a timely request for FMLA leave under the defend-
ant’s leave of absence policy.
The Tenth Circuit affirmed but on different grounds: the
evidence at trial did not support the claim that the absence
in question was FMLA-protected. Crowell v. Denver Health &
Hosp. Auth., --- F. App’x ---, 2014 WL 3608698, at *4-5 (10th
Cir. July 23, 2014). The trial evidence established a discrep-
ancy between the leave requested by the plaintiff (intermit-
tent) and the leave certified by the physician (continuous),
and the employer had advised the plaintiff that she needed a
new medical certification form if intermittent leave was re-
quired, but the plaintiff never provided one. Id. at *4. Fur-
thermore, no medical testimony supported the plaintiff’s
claim that her absence was entitled to intermittent leave un-
der the FMLA. Her physician testified that he did not think
it was medically necessary for the plaintiff to be absent from
work because of pain. Id. at *5. He also clarified that alt-
24 No. 13-3391
hough he certified that the plaintiff would have flare-ups of
pain, he did not think she would be incapacitated because of
the pain. Id. at *5 n.10. Although the physician’s general tes-
timony about the plaintiff’s ability to work did not specifi-
cally address the absence at issue, the court concluded that
the testimony refuted any reasonable inference that intermit-
tent leave was necessary. Id. at *5. The absence of a medical
certification supporting the plaintiff’s claim that she was un-
able to perform her job due to a serious health condition (the
certification was interpreted to require continuous leave)
and the absence of evidence that a chronic condition pre-
vented her from working (there was no medical evidence
linking the plaintiff’s severe chest pain on the day in ques-
tion with her shoulder injury for which she was granted
FMLA leave) were other bases on which the court upheld
the judgment in favor of the defendant. Id. at *5–6.
Hansen has produced a medical certification that raises a
material issue of fact as to his incapacity on the days at issue.
The certification distinguishes this case from those relied on
by FMG where the employee had no medical evidence sup-
porting the entitlement to FMLA leave. Although Hansen’s
requested leave exceeds Dr. Post’s estimated frequency and
duration, as in Schaar where the requested leave exceeded
the number of days certified, when the certification is com-
bined with Hansen’s own testimony that his depression pre-
vented him from working on the days in question, Hansen
has enough evidence to raise a material issue of fact that
would allow a reasonable jury to find in his favor. And as in
Crowell, Dr. Post’s certification that Hansen would have epi-
sodic flare-ups periodically preventing him from performing
his job functions could support a finding he was unable to
perform one or more essential functions of his position on
No. 13-3391 25
the days he was absent. There may not be an abundance of
evidence as to Hansen’s entitlement to FMLA leave for the
July 2011 absences, but there is enough to raise a material
issue of fact. Thus, we reject FMG’s argument that Hansen
has no medical documentation to substantiate the medical
necessity of his July 2011 absences; Dr. Post’s certification in
combination with Hansen’s testimony can do just that.
Hansen’s evidence raises a material issue of fact as to
whether he was unable to perform the functions of his job
because of his serious health condition on the days he was
absent. Although Dr. Post’s certification does not specifically
cover the July absences, the certified need for intermittent
leave could support a finding that Hansen’s chronic serious
health condition rendered him unable to work on the days in
question. Our decision does not require FMG to go through
a costly trial merely on Hansen’s own say-so that his depres-
sion required him to be absent from work. In addition to his
own testimony about his incapacity, Hansen has Dr. Post’s
medical certification that he has a serious health condition
that will cause episodic flare-ups that prevent him from per-
forming his job and make it medically necessary for him to
be absent from work. Presumably, Dr. Post would testify in
accordance with his certification. Whether a jury will credit
Hansen’s claims of incapacity due to his depression on the
July dates remains to be decided. The jury can weigh Han-
sen’s testimony against the medical certification and any tes-
timony Dr. Post provides that may add to or detract from
Hansen’s claims, along with all the other evidence, to deter-
mine whether Hansen was entitled to FMLA leave for his
July 2011 absences.
26 No. 13-3391
III. Conclusion
The district court’s grant of summary judgment is
REVERSED and the case is REMANDED for further proceedings
consistent with this opinion.