Muhammad, Rashidah v. SBC Ameritech Networ

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2006*
Decided May 26, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4118
Appeal from the United States District
RASHIDAH MUHAMMAD, Court for the Southern District of
Plaintiff-Appellant, Indiana, Indianapolis Division
v. No. 1:04-cv-1850-SEB-VSS
INDIANA BELL TELEPHONE Sarah Evans Barker,
COMPANY, INC.,** Judge.
Defendant-Appellee.
ORDER
Rashidah Muhammad appeals from the grant of summary judgment on her
claim that her former employer, Indiana Bell Telephone Company, violated the
Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., by firing her for
unexcused absences. She was already on probation for attendance violations when
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
**
Indiana Bell Telephone Company, Inc., is the proper defendant, and is
therefore substituted as defendant-appellee in both the caption and the text of this
order. Fed. R. App. P. 43(b).
No. 05-4118 Page 2
she missed work on two days in July. Indiana Bell determined that the absences
were not covered by the Act, and fired her. She claims that her absences should
have been excused because she submitted two prior medical certifications that
reported her need for intermittent leave. We agree with the district court that
these certifications were insufficient under the Act, and affirm.
Muhammad submitted the first certification at issue here in April after she
was absent a number of times in February and March. The doctor who filled it out
reported that she “was/will be incapacitated from 2/2/04 to 4/1/04” due to “chronic
pelvic pain” from “pelvic adhesions,” and Indiana Bell determined that those
February and March absences were covered under the FMLA. Where the form
asked if the employee would need intermittent leave, the doctor checked “Yes,” in
conflict with his own assessment that her period of incapacity had already ended on
April 1. Asked for the expected frequency and duration of intermittent leave, the
doctor wrote: one to two twelve-hour episodes per month.
Muhammad submitted the second certification at issue in June after she was
absent four times in May and once in June.1 The same doctor reported that she
“was/will be incapacitated from 5/11/04 to 5/15/04” by her illness, and Indiana Bell
determined that the May absences were covered under the FMLA. Once again, the
doctor checked a need for intermittent leave, in conflict with his own assessment
that her period of incapacity had ended May 15. This time he reported her need for
intermittent leave as “1- to 2-days” duration and “unknown” frequency.
Muhammad was then absent July 1 and 2. Indiana Bell notified her that the
June certification did not cover the absences. Although Indiana Bell recognized
that the doctor who filled out the June certification anticipated her need for
intermittent leave, he did not completely answer the question on the form. The
form asked for the expected duration and frequency of episodes, and also how long
the need for intermittent leave would continue. Muhammad’s June certification
specified only the expected duration of episodes. Indiana Bell warned her in writing
that she must submit a proper certification for the July absences within 15 days or
else the absences would not be covered by the Act. Muhammad did not respond.
Indiana Bell accordingly notified her that it had denied coverage for the absences
1
The June absence is not relevant on this appeal. Muhammad submitted a
certification for that absence based on her child’s illness. After initially rejecting it
as late, Indiana Bell eventually accepted it as excusing the absence. Because the
absence wasn’t yet excused when Muhammad was fired, it was listed with the July
absences as grounds for her termination, but the parties agree that since it was
excused it no longer supports the termination.
No. 05-4118 Page 3
and that she could appeal that denial within 15 days. Once again Muhammad did
nothing. After the fifteen days passed, Indiana Bell fired her.
Muhammad then filed this complaint, for the first time asserting that the
June certification, by providing for intermittent leave up to twice a month, provided
all the information required under the Act to cover the two July absences. At
summary judgment she additionally claimed that the absences were also covered
under the April certification. The district court granted summary judgment,
finding that Indiana Bell was entitled to demand the information, missing from
each certification, about the expected frequency and duration of episodes, and the
continuing need for leave. And when Muhammad failed to provide that
information, the court concluded, Indiana Bell was entitled to deny coverage and
fire her.
On appeal Muhammad renews her contention that the April and June
certifications were sufficient under the FMLA to entitle her to intermittent leave for
the two July absences. Turning first to the April certification, she argues that the
reference to her needing intermittent leave one to two times per month was
sufficiently detailed to cover the two days she was absent in July.
The FMLA affords those who cannot work as a result of a “serious health
condition” up to 12 weeks of leave in a year. 29 U.S.C. § 2612(a)(1)(D); Kauffman v.
Federal Express Corporation, 426 F.3d 880, 884 (7th Cir. 2005). An employer can
require an employee to substantiate his request for leave under the FMLA with a
medical certification of his condition, and can require recertification “on a
reasonable basis.” 29 U.S.C. § 2613(a), (e); Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1002 (6th Cir. 2005); Stoops v. One Call Commc’ns, Inc, 141 F.3d
309, 312 (7th Cir. 1998). For instance, when an employee requests leave for a
chronic serious condition, the employer can generally demand recertification every
30 days. Stoops, 141 F.3d at 312; 29 C.F.R. § 825.308(a). If an employee’s
certification reports the need for intermittent leave, however, and specifies a
“minimum period” for such leave that is longer than 30 days, the employer
generally cannot demand recertification until that minimum period has passed. Id.§ 825.308(b)(2).
Although Muhammad is correct that the doctor who completed her April
certification contemplated a need for intermittent leave one to two times per month,
more than 30 days had passed by the time she was absent in July. The doctor could
have extended that 30 days by specifying a longer “minimum period,” during which
her need for intermittent leave would continue. See id. § 825.308(b)(2). But the
only period of incapacity the doctor specified had already ended on April 4.
Accordingly, Indiana Bell was authorized under the FMLA to require a new
certification by the time Muhammad requested intermittent leave in July. See
No. 05-4118 Page 4
Stoops, 141 F.3d at 312; 29 C.F.R. § 825.308(a), (b)(2). As required under the
regulations, Indiana Bell provided written notice, 29 C.F.R. § 825.305(a), gave
Muhammad 15 days to respond, id. § 825.308(d), and warned her of the
consequences of not complying, id. § 825.305(d). Because Muhammad did not
respond, Indiana Bell reasonably could conclude that her absences were unexcused
and that it could take disciplinary action, including terminating her. See Radger v.
Dade Behring, Inc., 210 F.3d 776, 778 (7th Cir. 2000); 29 C.F.R. § 825.311(b).
Muhammad also argues that the June certification should have been
sufficient under the FMLA to entitle her to intermittent leave to cover the July
absences. That form certified that she would need intermittent leave in one- to
two-day increments of “unknown” frequency.
When a doctor certifies that an employee needs intermittent leave, the
employer is entitled to know how long the doctor thinks that need will continue, 29
U.S.C. § 2613(b)(6), and the expected frequency and duration of each episode, 29
C.F.R. § 825.306(b)(2)(ii), (iii); Dep’t of Labor Form WH-380, 1. If an employer
concludes that a certification is incomplete, it must give the employee a reasonable
opportunity to provide the missing information. Kauffman, 426 F.3d at 886; 29
C.F.R. § 825.305(d). The employee must provide the information requested.
Brumbalough, 427 F.3d at 1002; 29 C.F.R. § 825.311(b)
Muhammad’s June certification did not contain a doctor’s assessment of how
long she would continue to need intermittent leave and how frequently she would
need it. It stated only that her need for leave was: “patient driven, so when she
experiences this pain she may need 1-2 days off work.” Indiana Bell was entitled to
require Muhammad to obtain within 15 days the doctor’s assessment of how often
she would be incapacitated, and until when. See 29 U.S.C. § 2613(b)(6); 29 C.F.R.
§ 825.306(b)(2)(ii), (iii). When she did not, Indiana Bell properly found the absences
not covered. See Brumbalough, 427 F.3d at 996; 29 C.F.R. § 825.311(b).
AFFIRMED.