NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0511n.06 No. 11-2323 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
DOUGLAS WI SEMAN, Plaintiff-Appellant,
v.
AWREYS BAKERI ES, L L C, Def endant- Appellee
. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DISTRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MOORE and COOK, Circuit Judges; B ERTEL SMAN, District J udg e. * COOK, Circuit J udg e. Doug las Wis eman sued his former employ er, Awre y Ba kerie s, L L C, for firing him in violation of the Family and Medica l L eave Act of 1993 (F ML A), 29 U.S.C. § 2601, et seq. The district court g rante d summary judgme nt to Awre y , finding that Wis eman failed to follow the FMLA’s proc edura l require ments. For the following rea sons, we VACATE and REMAND.
I
. On Monday J une 18, 2007, returning to work at Awre y ’s L ivonia, Michig an plant afte r backinjury -re lated ti me off, Wis eman ag ain hurt his back. Wis eman t o l d Aw re y ’s Director of Human

The Honora

ble Wil liam O. Be rtelsman, United States District J udg e for the Easter n District * of Ke ntucky , sitti ng by

desig nation.No. 11-2323

W iseman v. Awrey

s Bakerie s, LL C
Resource s, L oraine Whit field, about the reinjury , and asked to visit the health cli n i c and file an
acc ident repor

t. Whit field denied both reque sts, contac ted Awre y ’s worke r’s compensa tion car rier, and instructed Wiseman to finish the day perf orming light duty

work. He did.
Th e p ar t i es d ispute what took place when Wis eman repor ted to work the next morning , Tuesday J une 19. Acc ording to Wis eman, Whit field order ed him back to work beca use, when she spoke t o t h e wo rk er’s compensation car rier, she failed to rela

y that Wis eman had suffe red a new back injury
. When W h i t fi eld reje cted a second reque st to attend the clinic and file an acc ident repor t, Wis eman contac ted a union repr esenta tive, who ag ree d he should attend the clinic. Whit field then acc ompanied Wis eman t o t he first aid station to complete an injury repor t, in which he complained of a “strain” in his “lower back.” Wis eman m ai n t ains that Whit field also told him to visit the company health clinic after w ork, but when Wiseman explained t hat he “couldn’ t work” and “wa s injured,” Whit field allowed him to g o home, telling him that he would rema in unassig ned and on ca ll, and would rec eive a work sche dule the following wee k.
Whit field tells a differ ent story , claiming that afte r Wis eman completed his injury repor t, she allowed him to visit the clinic. He left work mid day , but never visited the clinic or told Whitfield that he needed to see his own doctor. Wis eman remained scheduled to work t h e en t i re we ek, but failed to re port or docume nt his absence s. Returning to the undisputed fac ts, Wis eman left work but did not g o to the company clinic. The very next day , he went to his doctor, who pr ovided him with a note confirming that he should - 2 -No. 11-2323

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s Bakerie s, LL C
be off work but lacking any desig nation as to the nature of his back injury
. Thoug h Wis eman phoned a co-worke r on eac h of t he nex t four business day s (Wednesday J une 20–Monday J une 27) to ask if he ha d been sc heduled to wor k, he neve r ca lled Whit field to explain his absences.
On Fr iday J une 22, four day s afte r his injury , Whit field lear ned that Wis eman had not been coming to work afte r he left a voice mail messag e with Awre y ’s Be nefits and Human Resource s Manag er, J anet L ewis. Whit field instructed L ewis both to call Wis eman and to send him a letter by
cer tified mail explaining that these no-ca ll, no-show absenc es violated his union’s coll ective barg aining ag ree ment. L ewis left messag es on Wis eman’ s home and cell phones notify ing him that Awre y considere d him “a No Call No Show for three consec utive day s.” (R. 52-13, J une 22, 2007 L etter.) The letter (“June 22 l et t er ”) al s o war ned that beca

use he “provide d [no] rea son for [hi s] absenc es or communicated in a ny way [wit h] the Company ,” he would lose his seniority unless he provided satisfa ctory

rea sons for his absenc es by Monday J une 25, 2007. (

Id. )
Wis eman did call Whit field on Monday , J une 25th, explaining that he visited his doctor and
rec eived documentation. The following day , Whit field sent him a letter war ning him that he neede d to supply “satisfa ctory ” documentation explaining his absenc es by Fr iday J une 29 beca use his prior voicemai l messag e “provide d no explanation for [hi s] absenc es” and during their J une 25th
conver sation he had provided no “medica l rea sons” for his absenc es nor provided doctor-visit details. (R. 52-14, June 26, 2007 L etter.)
Wis eman missed work the 25th and ever y other day that wee k, despite Whit field calling and - 3 -No. 11-2323

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s Bakerie s, LL C leaving daily messag es on J une 26–28th reque sting he repor t to work as schedule d. On the deadline date, Friday the 29t h, Wis eman delivered W hitfield the doctor’s note prepare d afte r hi s J une 20th visit. Whit field responde d with a letter (“June 29 letter” ), advising Wis eman that the doctor’s note “does not satisfac torily explain the rea son for [hi s] abse n ce l ast wee k,” and reque sting “a more detailed e x planation from y our phy sician.”
Nea rly four wee ks later, on J uly 23, Wis eman faxed Whit field a doctor’s note dated J uly 6, that clea red Wis eman to r eturn to w ork on J uly 17, 2007. The day afte r the fax, A wre y terminated Wis eman.
I I
. We revie w a district court’s order g ranting summary judgme nt d e n o v o , Kalich v. AT& T Mo b ility, LLC , 679 F.3d 464, 469 (6th Cir. 2012), affirming the j udg ment on any basis support ed by the rec ord, Angel v. Kentucky , 314 F.3d 262, 264 (6th Cir. 2002). Preser ving FML A leave entails
a series of back- and-f

orth exchang es betwee n employ ee and employ er. First, t o “i n v oke the protec tion of the FML A, an employ ee must provide notice and a qualifying rea son for reque sting the leave .” W alton v. Ford Motor Co. , 424 F.3d 481, 486 (6th Cir. 2005) (quoting Brohm v. JH Props., Inc. , 149 F.3d 517, 523 (6th Cir. 1998)). When an unfore seen need for FML A-lea ve arises, “[i] t is expected that an employ ee will g ive notice to the employ er withi n no more than one or two working days of lear

ning of the need for leave .” 29 C.F.R. § 825.303(a) (2007) (e mphasis added)
. The employ ee need not expressly asser t his FML A rig hts, 29 C.F.R. § 825.303(b) (2007), but “must g ive

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s Bakerie s, LL C the employ er e noug h information for the employ er to r easona bly conclude that an event descr ibed in [t he FML A] has occur

red,” W alton , 424 F.3d at 486 (interna l quotation marks omitted). Once the employ ee provides this information, the employ er may confirm the employ ee’ s notice throug h such “informa l means,” 29 C.F.R. § 825.303(b) (2007), as reque sting a “medica l cer tification” from the emplo y ee’s health car e provider that establishes the need for leave , see id. § 825.305(a)
. “The employ ee . . . will be expected to provide more information when it can rea dily be acc omplished as
a prac tical matter, taking into consideration the exigenc ies of the situation.” Id. § 825.303(b). I f the “employ ee f

ails to ex plain the re asons, leave may be denie d.” Id. § 825.208(a) (1) ( 2007). Although the district court found that Wis eman “ha[d] not m ad e a particula rly strong showing ” as to notice (R. 62, Rpt. & Rec. at 8 n.2), the mag istrate judge assum ed

— o u t o f an “abunda nce of fairne ss”—that Wis eman’ s “communication with various Awre y supervisors place d [Awr ey ] on notice that he was apply ing for an FML A leave .” (

Id. at 7.) The mag istrate then construed the J une 22 and 29 letters as reque sts for medical cer tification and rec ommended g ranting summary judgme nt to Awre y beca use Wis eman failed to pr ovide timely cer tification. The district court a dopted the mag istrate judg e’s r ecommendation and g rante d summary judgme nt to Awrey
. Yet becau s e Aw rey conce ded in its briefing and at oral argument that it did not reque st a medical cer

tification, we cannot aff

ir m o n the g round the district court endorse d. Awre y ’s brief
rea ds: Awre y “could not classify [W iseman’s] abs en ce s as FML A-qua lify ing or reque st a
cer tification from his health car e provider” beca use it lac k ed “suff

icient detailed information
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sug g esting he had a serious health condi t i o n . ” (Appe llee Br
. at 37–38.) And at oral argument, Awre y ’s co u nsel stated that it was “still try ing to g et sufficie nt information to deter mine whether [W iseman] actua lly would be elig ible and entitled [t o] FML A leave ” (Ora l Arg
. at 19:31–19:41) and “c o n ce d e[ d ] that [he had] not seen any thing in the rec ord wher e [Awrey ] reque sted a medical
cer tification,” ( id. at 2 0 : 40–20:47). Our revie w of the rec ord confirms this position. The
corr espondenc e from Awre y fails to mention “F ML A” or the term “medica l c ertification,” and the J une 22 and 29 letters also set deadlines for Wis eman to pr ovide medical details inside the fiftee nday medical- cer

tification window required by the FML A. The dist rict court t h er efore im proper ly disposed of Wis eman’ s case for failing to timely respond to medical- cer tification requ es t s . See Branham v. Ganne tt Satellit e Info. Network, Inc

. , 619 F.3d 563, 573–74 ( 6th Cir. 2010).
I n the absenc e, then, of the untimely -ce rtification g rounds to de cide the claim, we return to the issue of whether Wis eman g ave FML A-qua lifying notice. He maintains he did beca use he told Whit field on Tuesday J une 19th he “wa s injured” and “could not work” due to his back injury
. He further points to the injury repor t he co m p l et ed at work, the employ er’ s knowledg e of his susceptibility to serious back pain and injury , the multipl e doctor’s notes, and his multipl e reque sts to see Awre y ’s doctor. Whit field, on the other hand, disputes this rec ollection of events, arguing that his communications never sug g ested he neede d FML A leave
. ( See R
. 6 2 , Rp t
. & Rec. at 7.) Viewing the notice evidenc e in the light most favor able to Wis eman, a g enuine issue of materia l fac t
rema ins as to whether he provided FML A-qua l i fy i n g notice “within no more than one or two

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s Bakerie s, LL C working day s” of lea

rning that he nee ded F ML A leave
. See 29 C.F.R. § 825.303(a) (2007)

. 1
F u r th e r mo r e , a g e n

uine issue of materia l fac t rema ins reg arding the seriousness o f Wi s e ma n ’ s health condition. See Stimpson v. United Parcel Serv. , 351 F. Ap p ’x 4 2 , 47–48 (6th Cir. 2009) (citing Cavin v. Honda of Am. Mfg., Inc. , 346 F.3d 713, 719 (6th Cir. 2003)). He ar g ues that he suffe red f rom a qualifying incapa citation and underw ent continuing trea tment f or his back injury
. Awre y contests this, arguing that Wis eman suffe red no serious incapa city and rema ined capa ble of perf orming life’s daily activities throug hout his t ime awa y . Be cause the district court never had
occa sion to decide this issue, we also rema nd for the district court’s consideration the issue whether Wis eman suffe red a serious health condition. See 29 U.S.C. § 2611(11); Plant v. Morton Int’l Inc. , 212 F.3d 929, 936 ( 6th Cir. 2000). Finally , a g enuine issue of materia l fac t rema ins surrounding Wis eman’ s absenc es betwee n J uly 17, 2007 and J uly 23, 2007. On J uly 23, Wis eman faxed Whit field a doctor’s note, dated J uly 6, 2007, which stated that he could return to work on J uly 17. Awre y points to this unexcused, six

day absenc e as an alternative g round for summary judgme nt. Wi seman, howe ver, te stified that he
rec eived the letter around J uly 22 and then sent the letter to Whit field as soon as it was provided to him. Viewing this ex chang e in the light most favor able to Wiseman, we c annot dispense with his claim on this gr ound.
On rema nd, the district court should apply the 2007 version of applicable regulations. See 1 Coffman v. Ford Motor Co. , 447 F. App’ x 691, 694 n.3 (6th Cir. 2011) (a pply ing the “re g ulations that wer e in place at the time” of employ ee’ s termination).

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I I I
. We VACATE and REMAND
.

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