* Th e Hono rabl e Danny C. Reev es, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2003 FED App . 0459P (6th C ir.) File Name: 03a04 59p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ J EFF REY P ERRY ,

Plaintiff- Appellant
,

v.
J AGUA R OF T ROY , assumed name for Somerset Auto Collection, Inc., Defendant-Appellee. X

- - - -> , - - - - - N No. 02-1816

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-74015—Anna Diggs Tay lor, District Judge. Argued: December 2, 2003 Decided and Filed: December 30, 2003
Befor e: GUY a

nd GILMAN , Circuit Jud ges; REE VES, District Judge. * 2 Perry v. Jaguar of Troy No. 02-1816

_________________ COUNSEL
ARGUED: Wil li am S. Stern, Southfield, Michigan, for App el lant. Patrice

S. Arend, JAFFE, RA

ITT, HEUER & WE I SS, Detroit, Michigan, for Appellee. ON BRI EF: William S. Stern, S outh field, Mic higan, for Appe llant. Patr ice S. Arend, Melanie T. LaF ave, JAFFE, RAITT, HEUER & WEISS, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ RALPH B. GUY, JR., Circuit Judge. Plai ntif f, Jeffrey Perry, appea

ls from the

grant o f summary

judgmen t 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 cla

ims that defendant violated the FMLA by refusingto allow hi

m to retur n to his employment after

taking leave to care

for his s on who h as lear ning disa bilities. Sp ec if ic al ly, Perry

argue s that the d

istrict c ourt err

ed when i t held that he ha

d not give

n suffic ient notic e and tha t his son did not have a

serious h ealth condit ion. Afte r review of the argume nts, the r ecord, a nd the app licable l aw, we affirm.
I. Perry was employed by

defendant

as an aut o parts counterperson when he sought leave in the summer of 2001 to c are for his 13-year- old son, Victor P erry. V

ictor had been diagnosed

with learningdisabilities, attention deficit disorder (ADD), and atte

ntion def icit hyperac tivity disorder (ADHD)

. Victor took medicati on to treat his

impulse control pro

blems. He visited a doctor every six months to check his physical condition and the e ffect o f the dru

gs.No. 02-1816 Perry v. Jaguar of Troy 3

Victor was cer tified as “Educa ble Menta

ll y I mp aired.” A school e valuation noted that he needed to “curb impulsive behavior.” Victor f

unctione d at a

third-grade level in reading and a second-grade level in wr itten language skil ls. Perry testified that

Victor c ould brush

his teeth an

d feed a nd dress himself. Victor rode the bus toand from school and attended a class for emotionally a

nd mentally impaired

studentsduring the school y

ear. Whe

n not in school, Victor p layed video games, watched television, and play ed with ne ig hborhood kids

. He also rode his bike and swam. After school, h e stayed with a neighbor or went to the after- sch ool day car e progra m. Prior to 2001, Victor was either watched by his mother

or other family members d

uring the summer m

onth s. Victor’s mother was unab le to watch him in the summer of 2001 because of her work schedule, and the famil y w as forc ed to consider other arrangements. In his affidavit, Perry stated that Victor must be constantly

monitored

for saf ety reasons and to ensure that

his behav ior is soci ally

acceptable. He also stated that th ey w er e u na bl e t o f

in d a ff or da bl e d ay c are that

would meet Victor’ s need for full -t ime attention from a child care provider in a “very

controlled environment.”
The defendant’s empl oye e handbook required medical certification for FML

A leave: Employeestaking a leave under this policy are re quired 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 depo sition 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 Em pl oye e Requested Time Off Form. Perry g ave notice tha t he would not work from June 13 until Aug

ust 27, 2001, for the stated

reason o f “child 4 Perry v. Jaguar of Troy No. 02-1816

care.” There was no referenc e to t he FM LA or Victor’s special needs, and no medical certification was provided. Perry testifie d in his deposition, howeve r, that he orally told Manarv that he was asking for leave under the FMLA, which he had read about in the emplo yee ha ndbook. Manarv “basica lly said okay

,” and the

re was no discussion about whether his position would be available at the end o f the leave.
OnJune 2 9, 200 1, ap

proximatel y two weeks a fter Perry ’s leave began , defend

ant’s of fice man ager s ent a lett

er to Perry that stated:
This letter

is to inform you that y

our leave of absen

ce is notconsidered under The Family and Medical Leave act of 19 93, pl ease se e attached for t he elig ibility require ments.
You currently ha

ve benefits thr oug h AFLAC, we are informing themt hat you are on a leave of absence, and that they should bill y

ou at your home. Th

is became effective on June 18, 2001.
Please c all if y

ou have a ny q uestions.
At the end of

the summer, Perry

contact ed his su pervisor about retu rning to work. He was informed that his position had been filled, and that no other positions were a vaila ble. Perry thereafter bro

ught this action seeking

reinstatement and da mages under the FMLA. The district court grant e d defendant’s motion fo r su mmary judgme nt. This appeal followed.
II.
We review the grant of

summary judgmen t de novo

. Smith
v. Ameritech , 129 F.3d 857, 863 (6th Cir. 199 7). Summary judgment is appropriate when there are no issues of material fact in dispute , and the m

oving pa rty is entitled to judgmentNo. 02-1816 Perry v. Jaguar of Troy 5

as a matter of law. F ED

. R. C IV

. P. 56(c). The movingparty bears the initial burden of showingthe absence of a genuine issue of material fact. See Celotex Corp. v. Ca trett , 477 U.S. 317, 323 (1986 ). The bu rden the n shif ts to th e nonmoving party to come for

ward wit h evidenc e showing

that ther e 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 produ ced eno ugh evidenc e to enable a jury to return a verdict for that party

. Id. at 2 49. In decidinga motion for summary judgmen t, the cou rt must draw all reasonable inferences in favor of the no nmoving pa rt y. Matsushita

Elec. In dus. Co. v. Zenith Rad io Corp. , 475 U.S. 574, 587 (1986).
Under the FML

A, an elig

ible employe e is entitl ed to receive 12 workweeks of leave dur ing a ny 12-month period to, among other things, care for a spouse, son, daughter, or parent if the spouse, son, daughter, or par en t has a serious health condition . 29 U.S.C. § 2612(a)(1). Upon return from an FMLA leave , the employe e is entitled t o reinsta tement to the same or

an equivalent position withoutthe loss of benefit s (with some limite d exceptions not applicable here). 29 U.S.C. § 2614. I

t is “unlawful for

any employ

er to interfere with, restrain, or deny

the exercise of or the attem pt t o exercise, any rig

ht provided under” the FML A. 29 U.S.C. § 2615(a)(1).
A. Notice
The defendant argues that summary ju dgment was proper b ecause Perry did not provide suff icient notice since th e writtenform did not ref

eren ce the F MLA or Victor ’s health co ndition. To qualify for F MLA leave, the employ ee mus t give not less tha

n 30-day s’ notice if the ne cessity

for the leave is f oreseeable. 29 U.S.C. § 2612(e). An employ ee 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 employ

ee giv es suf

ficient notice when he provides enough information for

the employer

to reasonably c onclude 6 Perry v. Jaguar of Troy No. 02-1816

1 “Ex ce pt as pro vided in subp aragr aph (ii), if the emp loyer is requiring medical certificatio n . . . , written no tice of the requ ireme nt shall be gi ven w ith respe ct to ea ch em ploye e notic e of a n eed for leav e.” 29 C.F.R . § 82 5.30 1(c) (2)(i). S ub seque nt w rit ten noti fi cati ons ar e not requ ired if no tice is given a fter the employ ee firs t requests l eave and the employee hand boo k clear ly prov ides tha t certi fic ati on is requi red. 29 C.F.R. § 82 5.301(c)(2)(ii). that an event described in § 2613(a)(1) has oc curred. See Brohm, M.D. v. JH Props., In c

. , 149 F.3d 517, 523 ( 6th Cir.1998). Perry argues that his employ

er was aware of his son’s health condition becaus e he di scussed it often at work and because his son had visited t he dealership in the past. Perry also testified in his deposition that he speci fically mentioned the FMLA when he discu ssed t he intend ed leave with his supervisor. On this reco rd, it appears that defendant was given en ough information reasonably to conclude that Perry was asking for leave under the FMLA . In a ny e vent, it is clear that at some point defendant knew, or a t t he very least presumed, that Perry wa s requesting leave that might qualify unde rth e FM LA be cau se i t re spo nde d by d enyi ng F MLA 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 F MLA leave because Perry did not provide medical certification as required under the employ

ee hand book. I f the emp loy ee fails to provide requested medical certification, the lea ve does not qualify as FMLA leave. 29 C.F .R. § 825.311(b ). The regula tions, how ever, st

ate that when an

employee first asks for FMLA leave, the emp loyer must give specific written notice of the e mploy

ee's o bligations, includ

ing the d uty to provide medical certification and the consequences for failing to do so. 29 C.F .R. § 825.301(c)(2). 1 In addition, certificationNo. 02-1816 Perry v. Jaguar of Troy 7

2 “An emp loyer m ust giv e notic e of a requirement f or medical
ce rtifi cati on each t ime a cert if ication i s re quir ed; s uch notice must be writ ten notic e whenever req uir ed b y § 825.301. An employ er’s oral request to an emp loyee to furnish any sub sequ ent me dical c ertification is suffi cient.” 29 C.F.R. § 825.305(a). must be requested each time i t is require d. 29 C.F. R. § 825.305(a). 2

Even though the need for medical certific ation was stated indefendant’s employ

ee handbook, the regulations required defendant again t o ask for certifi cation after Per

ry told his supervisor

he wanted

leave to watch his son over the summer. It is unc le ar on this record whether defenda nt requested certification

after receiving Perry ’s notice and before deny

ing FMLA leave. Because there is no e vidence t hat defe ndant requested medical certification

pursuant to the re quireme

nts of the FMLA, Perry ’s failure to provide medical certification does not su

pport summa

ry judgmen t for def endant.
C. Serious Health Condition Perry has a ca use of a cti on u nde r FM LA only if Victor had a serious h ealth

condition that required Perry ’s care. See Bauer v. Varity Dayton-Walther Corp. , 118 F.3d 1109, 1111- 12 (6th Cir. 1997). The F MLA d efin es a ser ious heal th condition as an ill

n ess, injury, impairment, or phy sical or mental condition that involves (1) inpatient care in a hospital, hospice, or residential medical care facility ; or (2) continuing treatment by a hea lth care provider. 29 U.S.C. § 2611(11). The regulations go on to define a serious health condition as anil ln es s, in

ju ry, impairment, or physical or mental condition that involv es: (1) Inpatien t care

( i.e., an overn

ight sta y)ina hospita

l, hospice, or residential medical care facility , including any p eriod of incapacity

(for purposes of this section, defined to mean inability to work, attend school or perform other regular daily

activities due to the s erio us 8 Perry v. Jaguar of Troy No. 02-1816

health condition, treatment therefor, or recover y therefrom), or any subseque nt treatment in c onne ction with such inpatient care; or (2) Continuing

treatmen t by a hea

lth care provider

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

by a hea lth care provider” includes , in pertine nt part: (i) A period of incapaci ty ( i.e., inability to work, attend school or perform other

regula r daily activitie s due to the serious health condition, treatment therefor, or recovery theref rom) of more than three consecutivecalenda r days, andany subsequent tre atment or period of incapa cit y relating to the same

condition , that also

involves: (A) Treat

ment tw o or more times by a he alth care provider, by

a nurs e or ph ysician's assistant under direct supervisionof a health careprovider, or by a provider of health care se rvices ( e.g., physical thera pist) under orders of, or on referral by, a health care provider; or (B) Treatment by a

health care provider on at leas t one occasion whic h results in a regimen of continuing treatment under the superv ision of the health care provider.

. . . . (iii) Any period of inc apacity or tr e a tment for such incapac ity

due to a c

hronicse rious health condition. A chronic serious health condition is one which: (A) Requires periodic visits for tre atme nt by a health care provider, or by

a nurse or physician’s a ssistant under direct supervision of a health care provider ;No. 02-1816 Perry v. Jaguar of Troy 9

(B) Continues over an exte nded per iod of time (inc lu ding recurring episodes of a sing le underlying condition); and (C) May cause

episodic rather than a continuing period of in ca pa ci ty ( e.g ., asthma, diabetes, epilepsy , etc. ). (iv) A period

of incapacity

which is permanent or

longtermdue to a condition for which treatmen t may not be effective. The employe e or fam ily memb er mus t be under th e continuing supervision of, but need not be receiving active trea

tme nt by, a health ca

re provider. Example s 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 ch ronic or permanent serious health condition because he was under the periodic tre atment of a physician. Perr

y offer ed evidence that Victor was seeing a doctor every

six months to check his physica l condition and the e ffect of the medications. Defendant ar gues that Vi cto r was not rece iving tr

eatment b ecause

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 e valuations of the c ondition.” 29 C.F.R. § 825.114(

b). Abse nces att ributable to a chro nic serious health condition under 29 C.F.R. § 825.114(a)(2)(iii) qualify for FMLA leave even

if the employee or

family member doe s notreceive treatment fr

om a he alth care provider during the absence. 29 C.F.R. § 825.114(e).
Even if Victor’s biannual doctor visits cons titute tre atment, however, Perry must also prese nt evidence that Vict or wa s incapacitated in the summer of 2001. In order to have had a serious health condition , w hether c hronic or permane nt, Victor must have been unable to work, attend school, or perf orm other regular daily

activities during the period of Perry’s lea

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

3 De fendant objec ted to the do cuments attache d to Pe rry’s response to the mo tion for s umm ary jud gme nt. After d efend ant filed its reply b rief, Perry filed a S upp leme ntal Affid avit whic h stated that the d ocu men ts
were cop ies of r ecor ds from Vict or’s s chool and medical fil es. Feder al Rule of Civi l Procedure 56 requi res t he plai nti ff to pres ent evi dence of eviden tiary

quality that demonstrates t he existence of a genui ne issue o f materi al fact. Ex amp les of suc h evid ence in clu de ad missible doc ume nts
or attest ed testimony, s uch as that f ound in affidav its or depositions. The proffe red ev ide nce need not be in ad missible form, but its content m ust be adm issible. Bailey v. Floyd County Bd. of Educ. , 106 F.3d 135 , 145 (6th Cir. 1997). Defendant argues t hat t he aff idavit was untime ly and was not sufficient to authenticate the do cuments. M ost of the documents are farremoved in date from 2001 and, therefore, are not rel evant to V ictor’s health cond iti o n in t

he summer of

2001. Two school report s are dat ed 2000 and 2001. They note t hat t he clar ity

of Victor ’s s peech decrease s during spont aneous speec h becau se of his rap id delivery, but note that one of Victor’ s st

rength s is his a

bili ty t o communica te thoughts and engage in conversa tions with peers and adults. The 2000 repo rt notes “d ifficulty” in gross motor and fine motor coordination, but the 2002 report

notes t hat Victor part ici pates in r egul ar phy sic al e ducat ion classes. Thus, regar dless
o f wheth er these doc ume nts can b e con sidere d on summ ary jud gme nt, theydo not address the question in t his ca se: Did Victo r’s health condition render him unable to work , att en d school, or perfor m regular daily activities? Insupport of

its motion for

summary judgme

nt, defendant presented evidence that Vict

or was a ble to attend school and e ngaged in the same daily activities in which most childre n engage: riding the bus to and f rom sch ool, ridin

g bikes, swim ming, playing vi deo ga mes, watching television, and playing with neighborhood friends. The burden then shifted to Perry to come for

ward with evidence showing that Victor was in fact incapacitated. Perry argue s that Vic tor was in

capaci tated be cause

he could notperform regular daily act ivit ies when compared to other children withoutADD and ADHD. Perry , however, points to no evidence to support

this conclusory claim that Victor could notperfor

m regul ar daily

activitie s. 3 The fact that a ch ild with learning disabilities does not function at the same level as a child of the same age without learning disabilities shedsNo. 02-1816 Perry v. Jaguar of Troy 11

no light on whether that child can perfor m re gular d

aily activitie s. Perry also argues that Victor wasincapac itated be cause he could not attend a regular day

camp. Perry

claims that Victor needed extraordinary super

vision. A younger

child with no learningd isab ilities, however, may a lso require more supervision. The comparative amount of supervision a child needs standing alone does not addr ess the child’ s ability to engage in regu

lar daily activities. The examples of behavior requiringextra monitoring given by Perry in his affi davit, if anything, refute Perry ’s claim that Victor could not

engag e in regular daily acti vit ies. Victor was found peeking into the windows of neighbors, biking on theservi ce drive of a fr ee wa y, and making numerous telephonecalls to video g ame companie s. Even vie

wing the facts in a ligh

t most favorable to Perry, we

cannot find

that there is enoug

h evidenc e in this record to enable a

jury to reasonably c onclude that Victor was incapacitated

in the summer of

2001 and, thus, had a serious health condition qualifying Perry for an FMLA leave

. AFFIRMED.