*

The Honorable Danny C. Reeves, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0459P (6th Cir.)

File Name: 03a0459p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JEFFREY PERRY,

Plaintiff-Appellant,

v.

JAGUAR OF TROY, assumed

name for Somerset Auto

Collection, Inc.,

Defendant-Appellee.

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No. 02-1816

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-74015—Anna Diggs Taylor, District Judge.

Argued: December 2, 2003

Decided and Filed: December 30, 2003 

Before: GUY and GILMAN, Circuit Judges; REEVES,

District Judge.*

2 Perry v. Jaguar of Troy No. 02-1816

_________________

COUNSEL

ARGUED: William S. Stern, Southfield, Michigan, for

Appellant. Patrice S. Arend, JAFFE, RAITT, HEUER &

WEISS, Detroit, Michigan, for Appellee. ON BRIEF:

William S. Stern, Southfield, Michigan, for Appellant.

Patrice S. Arend, Melanie T. LaFave, JAFFE, RAITT,

HEUER & WEISS, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

RALPH B. GUY, JR., Circuit Judge. Plaintiff, Jeffrey

Perry, appeals from the grant of summary judgment in favor

of defendant, Jaguar of Troy, in this case brought under the

Family Medical Leave Act (FMLA). 29 U.S.C. §§ 2601-

2654. Perry claims that defendant violated the FMLA by

refusing to allow him to return to his employment after taking

leave to care for his son who has learning disabilities.

Specifically, Perry argues that the district court erred when it

held that he had not given sufficient notice and that his son

did not have a serious health condition. After review of the

arguments, the record, and the applicable law, we affirm.

I.

Perry was employed by defendant as an auto parts counterperson when he sought leave in the summer of 2001 to care

for his 13-year-old son, Victor Perry. Victor had been

diagnosed with learning disabilities, attention deficit disorder

(ADD), and attention deficit hyperactivity disorder (ADHD).

Victor took medication to treat his impulse control problems.

He visited a doctor every six months to check his physical

condition and the effect of the drugs.
No. 02-1816 Perry v. Jaguar of Troy 3

Victor was certified as “Educable Mentally Impaired.” A

school evaluation noted that he needed to “curb impulsive

behavior.” Victor functioned at a third-grade level in reading

and a second-grade level in written language skills. Perry

testified that Victor could brush his teeth and feed and dress

himself. Victor rode the bus to and from school and attended

a class for emotionally and mentally impaired students during

the school year. When not in school, Victor played video

games, watched television, and played with neighborhood

kids. He also rode his bike and swam. After school, he

stayed with a neighbor or went to the after-school day care

program.

Prior to 2001, Victor was either watched by his mother or

other family members during the summer months. Victor’s

mother was unable to watch him in the summer of 2001

because of her work schedule, and the family was forced to

consider other arrangements. In his affidavit, Perry stated that

Victor must be constantly monitored for safety reasons and to

ensure that his behavior is socially acceptable. He also stated

that they were unable to find affordable day care that would

meet Victor’s need for full-time attention from a child care

provider in a “very controlled environment.”

The defendant’s employee handbook required medical

certification for FMLA leave:

Employees taking a leave under this policy are required

to provide a medical certification of the condition and the

need for the leave from the health care provider.

Certification forms should be obtained from the Office

Manager.

Perry testified in his deposition that he told his supervisor,

Doug Manarv, at least two months before he wanted the leave

that he needed to take time off to watch Victor. On April 4,

2001, Perry submitted an Employee Requested Time Off

Form. Perry gave notice that he would not work from

June 13 until August 27, 2001, for the stated reason of “child

4 Perry v. Jaguar of Troy No. 02-1816

care.” There was no reference to the FMLA or Victor’s

special needs, and no medical certification was provided.

Perry testified in his deposition, however, that he orally told

Manarv that he was asking for leave under the FMLA, which

he had read about in the employee handbook. Manarv

“basically said okay,” and there was no discussion about

whether his position would be available at the end of the

leave.

On June 29, 2001, approximately two weeks after Perry’s

leave began, defendant’s office manager sent a letter to Perry

that stated:

This letter is to inform you that your leave of absence is

not considered under The Family and Medical Leave act

of 1993, please see attached for the eligibility

requirements.

You currently have benefits through AFLAC, we are

informing them that you are on a leave of absence, and

that they should bill you at your home. This became

effective on June 18, 2001.

Please call if you have any questions.

At the end of the summer, Perry contacted his supervisor

about returning to work. He was informed that his position

had been filled, and that no other positions were available.

Perry thereafter brought this action seeking reinstatement and

damages under the FMLA. The district court granted

defendant’s motion for summary judgment. This appeal

followed.

II.

We review the grant of summary judgment de novo. Smith

v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary

judgment is appropriate when there are no issues of material

fact in dispute, and the moving party is entitled to judgment
No. 02-1816 Perry v. Jaguar of Troy 5

as a matter of law. FED. R. CIV. P. 56(c). The moving party

bears the initial burden of showing the absence of a genuine

issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The burden then shifts to the nonmoving

party to come forward with evidence showing that there is a

genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 256 (1986). There is no genuine issue for trial

unless the nonmoving party has produced enough evidence to

enable a jury to return a verdict for that party. Id. at 249. In

deciding a motion for summary judgment, the court must

draw all reasonable inferences in favor of the nonmoving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

Under the FMLA, an eligible employee is entitled to

receive 12 workweeks of leave during any 12-month period

to, among other things, care for a spouse, son, daughter, or

parent if the spouse, son, daughter, or parent has a serious

health condition. 29 U.S.C. § 2612(a)(1). Upon return from

an FMLA leave, the employee is entitled to reinstatement to

the same or an equivalent position without the loss of benefits

(with some limited exceptions not applicable here). 29

U.S.C. § 2614. It is “unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under” the FMLA. 29 U.S.C.

§ 2615(a)(1).

A. Notice

The defendant argues that summary judgment was proper

because Perry did not provide sufficient notice since the

written form did not reference the FMLA or Victor’s health

condition. To qualify for FMLA leave, the employee must

give not less than 30-days’ notice if the necessity for the leave

is foreseeable. 29 U.S.C. § 2612(e). An employee is not

required to expressly assert his right to take leave under the

FMLA. 29 C.F.R. § 825.302(c) (2002). We have recognized

that an employee gives sufficient notice when he provides

enough information for the employer to reasonably conclude

6 Perry v. Jaguar of Troy No. 02-1816

1

“Except as provided in subparagraph (ii), if the employer is

requiring medical certification . . . , written notice of the requirement shall

be given with respect to each employee notice of a need for leave.”

29 C.F.R. § 825.301(c)(2)(i). Subsequent written notifications are not

required if notice is given after the employee first requests leave and the

employee handbook clearly provides that certification is required.

29 C.F.R. § 825.301(c)(2)(ii).

that an event described in § 2613(a)(1) has occurred. See

Brohm, M.D. v. JH Props., Inc., 149 F.3d 517, 523 (6th

Cir.1998).

Perry argues that his employer was aware of his son’s

health condition because he discussed it often at work and

because his son had visited the dealership in the past. Perry

also testified in his deposition that he specifically mentioned

the FMLA when he discussed the intended leave with his

supervisor. On this record, it appears that defendant was

given enough information reasonably to conclude that Perry

was asking for leave under the FMLA. In any event, it is

clear that at some point defendant knew, or at the very least

presumed, that Perry was requesting leave that might qualify

under the FMLA because it responded by denying FMLA

leave. Thus, defendant is not entitled to summary judgment

because of deficiencies in Perry’s notice.

B. Medical Certification

Defendant also argues that it properly denied FMLA leave

because Perry did not provide medical certification as

required under the employee handbook. If the employee fails

to provide requested medical certification, the leave does not

qualify as FMLA leave. 29 C.F.R. § 825.311(b). The

regulations, however, state that when an employee first asks

for FMLA leave, the employer must give specific written

notice of the employee's obligations, including the duty to

provide medical certification and the consequences for failing

to do so. 29 C.F.R. § 825.301(c)(2).1 In addition, certification
No. 02-1816 Perry v. Jaguar of Troy 7

2

“An employer must give notice of a requirement for medical

certification each time a certification is required; such notice must be

written notice whenever required by § 825.301. An employer’s oral

request to an employee to furnish any subsequent medical certification is

sufficient.” 29 C.F.R. § 825.305(a).

must be requested each time it is required. 29 C.F.R.

§ 825.305(a).2

Even though the need for medical certification was stated

in defendant’s employee handbook, the regulations required

defendant again to ask for certification after Perry told his

supervisor he wanted leave to watch his son over the summer.

It is unclear on this record whether defendant requested

certification after receiving Perry’s notice and before denying

FMLA leave. Because there is no evidence that defendant

requested medical certification pursuant to the requirements

of the FMLA, Perry’s failure to provide medical certification

does not support summary judgment for defendant.

C. Serious Health Condition

Perry has a cause of action under FMLA only if Victor had

a serious health condition that required Perry’s care. See

Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111-

12 (6th Cir. 1997). The FMLA defines a serious health

condition as an illness, injury, impairment, or physical or

mental condition that involves (1) inpatient care in a hospital,

hospice, or residential medical care facility; or (2) continuing

treatment by a health care provider. 29 U.S.C. § 2611(11).

The regulations go on to define a serious health condition as

an illness, injury, impairment, or physical or mental condition

that involves:

(1) Inpatient care (i.e., an overnight stay) in a hospital,

hospice, or residential medical care facility, including

any period of incapacity (for purposes of this section,

defined to mean inability to work, attend school or

perform other regular daily activities due to the serious

8 Perry v. Jaguar of Troy No. 02-1816

health condition, treatment therefor, or recovery

therefrom), or any subsequent treatment in connection

with such inpatient care; or

(2) Continuing treatment by a health care provider . . . .

29 C.F.R. § 825.114(a) (emphasis in original).

“Continuing treatment by a health care provider” includes,

in pertinent part:

(i) A period of incapacity (i.e., inability to work, attend

school or perform other regular daily activities due to the

serious health condition, treatment therefor, or recovery

therefrom) of more than three consecutive calendar days,

and any subsequent treatment or period of incapacity

relating to the same condition, that also involves:

(A) Treatment two or more times by a health care

provider, by a nurse or physician's assistant under direct

supervision of a health care provider, or by a provider of

health care services (e.g., physical therapist) under orders

of, or on referral by, a health care provider; or

(B) Treatment by a health care provider on at least one

occasion which results in a regimen of continuing

treatment under the supervision of the health care

provider.

. . . .

(iii) Any period of incapacity or treatment for such

incapacity due to a chronic serious health condition. A

chronic serious health condition is one which:

(A) Requires periodic visits for treatment by a health

care provider, or by a nurse or physician’s assistant under

direct supervision of a health care provider;
No. 02-1816 Perry v. Jaguar of Troy 9

(B) Continues over an extended period of time

(including recurring episodes of a single underlying

condition); and

(C) May cause episodic rather than a continuing period

of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

(iv) A period of incapacity which is permanent or longterm due to a condition for which treatment may not be

effective. The employee or family member must be

under the continuing supervision of, but need not be

receiving active treatment by, a health care provider.

Examples include Alzheimer’s, a severe stroke, or the

terminal stages of a disease.

29 C.F.R. § 825.114(a)(2) (emphasis in original).

Perry argues that Victor had a chronic or permanent serious

health condition because he was under the periodic treatment

of a physician. Perry offered evidence that Victor was seeing

a doctor every six months to check his physical condition and

the effect of the medications. Defendant argues that Victor

was not receiving treatment because he did not see a doctor in

the summer of 2001. Treatment “includes (but is not limited

to) examinations to determine if a serious health condition

exists and evaluations of the condition.” 29 C.F.R.

§ 825.114(b). Absences attributable to a chronic serious

health condition under 29 C.F.R. § 825.114(a)(2)(iii) qualify

for FMLA leave even if the employee or family member does

not receive treatment from a health care provider during the

absence. 29 C.F.R. § 825.114(e).

Even if Victor’s biannual doctor visits constitute treatment,

however, Perry must also present evidence that Victor was

incapacitated in the summer of 2001. In order to have had a

serious health condition, whether chronic or permanent,

Victor must have been unable to work, attend school, or

perform other regular daily activities during the period of

Perry’s leave.

10 Perry v. Jaguar of Troy No. 02-1816

3

Defendant objected to the documents attached to Perry’s response

to the motion for summary judgment. After defendant filed its reply brief,

Perry filed a Supplemental Affidavit which stated that the documents

were copies of records from Victor’s school and medical files. Federal

Rule of Civil Procedure 56 requires the plaintiff to present evidence of

evidentiary quality that demonstrates the existence of a genuine issue of

material fact. Examples of such evidence include admissible documents

or attested testimony, such as that found in affidavits or depositions. The

proffered evidence need not be in admissible form, but its content must

be admissible. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145

(6th Cir. 1997). Defendant argues that the affidavit was untimely and was

not sufficient to authenticate the documents. Most of the documents are

far removed in date from 2001 and, therefore, are not relevant to Victor’s

health condition in the summer of 2001. Two school reports are dated

2000 and 2001. They note that the clarity of Victor’s speech decreases

during spontaneous speech because of his rapid delivery, but note that one

of Victor’s strengths is his ability to communicate thoughts and engage

in conversations with peers and adults. The 2000 report notes “difficulty”

in gross motor and fine motor coordination, but the 2002 report notes that

Victor participates in regular physical education classes. Thus, regardless

of whether these documents can be considered on summary judgment,

they do not address the question in this case: Did Victor’s health

condition render him unable to work, attend school, or perform regular

daily activities?

In support of its motion for summary judgment, defendant

presented evidence that Victor was able to attend school and

engaged in the same daily activities in which most children

engage: riding the bus to and from school, riding bikes,

swimming, playing video games, watching television, and

playing with neighborhood friends. The burden then shifted

to Perry to come forward with evidence showing that Victor

was in fact incapacitated.

Perry argues that Victor was incapacitated because he could

not perform regular daily activities when compared to other

children without ADD and ADHD. Perry, however, points to

no evidence to support this conclusory claim that Victor could

not perform regular daily activities.

3

 The fact that a child

with learning disabilities does not function at the same level

as a child of the same age without learning disabilities sheds
No. 02-1816 Perry v. Jaguar of Troy 11

no light on whether that child can perform regular daily

activities.

Perry also argues that Victor was incapacitated because he

could not attend a regular day camp. Perry claims that Victor

needed extraordinary supervision. A younger child with no

learning disabilities, however, may also require more

supervision. The comparative amount of supervision a child

needs standing alone does not address the child’s ability to

engage in regular daily activities. The examples of behavior

requiring extra monitoring given by Perry in his affidavit, if

anything, refute Perry’s claim that Victor could not engage in

regular daily activities. Victor was found peeking into the

windows of neighbors, biking on the service drive of a

freeway, and making numerous telephone calls to video game

companies. Even viewing the facts in a light most favorable

to Perry, we cannot find that there is enough evidence in this

record to enable a jury to reasonably conclude that Victor was

incapacitated in the summer of 2001 and, thus, had a serious

health condition qualifying Perry for an FMLA leave.

AFFIRMED.