In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3400

ROBERT JONES,

Plaintiff-Appellant,

v.

C&D TECHNOLOGIES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:10-cv-696—William T. Lawrence, Judge.

ARGUED MARCH 29, 2012—DECIDED JUNE 28, 2012

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Robert Jones brought this action alleging that his employer, C&D Technologies, Inc.,

interfered with his right to take leave under the Family

and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

The district court granted summary judgment for C&D

Technologies, reasoning that Jones was not entitled to

FMLA leave because he did not receive treatment

during his absence. We affirm.
2 No. 11-3400

I. BACKGROUND

In June 2000, C&D Technologies hired Robert Jones as

a machine operator for its plant in Attica, Indiana. Both

before and during his time at C&D, Jones experienced

periodic leg and back pain and bouts of anxiety. Jones’s

condition required him to see a treating physician once

every two or three months and to undergo a series of

tests two or three times per year. Jones also took prescription medication.

Effective May 1, 2003, C&D implemented a comprehensive attendance policy that assesses employees a

varying number of points for policy violations. For example, employees are assessed one point if they miss more

than four hours of a scheduled shift and one-half point

for absences lasting less than four hours but more than

thirty minutes. The company also requires employees

to report all absences exceeding thirty minutes to a shift

supervisor prior to the absence. Failure to do so results

in the assessment of an additional one-half point

against the employee. Points are not assessed for preapproved FMLA absences. Consequences for violating

the policy depend on the number of accumulated points.

In any four-month period, an employee who receives

one point is given a written warning; a second written

warning is given to those employees who accrue two

points; and a third point results in termination. Immediately preceding his October 1, 2009, absence, Jones had

accrued two and one-half points. 

During the last week of September 2009, Jones spoke

with Cathy Morgan, C&D’s FMLA Coordinator, about his
No. 11-3400 3

medical condition. On September 25, and again on October 2, Jones’s treating physician, Dr. Kathryn Lubak,

faxed Morgan FMLA certifications indicating that Jones

required periodic treatment for his leg pain and anxiety.

On September 30, Jones again spoke with Morgan, this

time to request FMLA leave for a 1:00 p.m. appointment

the next day in Crawfordsville, Indiana. During that

conversation, Morgan made clear that Jones must notify

his supervisor of the absence. The parties dispute

whether Jones requested FMLA leave for the entire day

or whether he simply requested leave for his afternoon

appointment.

Jones missed his entire scheduled shift on October 1. He

claims to have left a voicemail for his supervisor prior

to his absence, but the company disputes this. In any

event, on the morning of October 1, Jones first retrieved

his paycheck from C&D and then visited Dr. Lubak at

her clinic in Veedersburg, Indiana. At approximately

10:00 a.m., Jones signed in at Dr. Lubak’s office, although

he did not have a scheduled appointment. He did two

things while there. First, he confirmed that Dr. Lubak’s

office had transferred all necessary referral paperwork to

the Crawfordsville clinic—the site of his afternoon appointment. Jones maintains that this confirmation was

necessary because Dr. Lubak’s clinic was unaffiliated with

the Crawfordsville clinic, and he wanted to ensure the

paperwork was in order before making the twenty-fivemile drive. Second, Jones obtained a prescriptionrefill note for Xanax and hydrocodone. Throughout this

unscheduled visit, Jones was never examined or evaluated

by Dr. Lubak. Rather, the entirety of Jones’s contact with
4 No. 11-3400

Dr. Lubak took place in the office lobby. Jones left

Dr. Lubak’s office after approximately twenty-five minutes. He then traveled to Crawfordsville for his 1:00 p.m.

appointment.

Because of his October 1 absence, C&D suspended Jones

from work beginning October 2, pending a further investigation. Jones and a union representative then met with

company officials on October 6. At that meeting, C&D

claims that Jones was unable to provide any documentation suggesting that he received treatment for his health

condition on the morning of October 1. Following the

meeting, company officials contemplated assessing Jones

one and one-half points for his absence and failure to

provide prior notification to his supervisor. C&D officials

ultimately assessed Jones only one-half point, concluding

that Jones’s absence in the morning was for “personal

business,” while his afternoon was spent receiving FMLAqualifying treatment. The company also gave him the

benefit of the doubt as to whether he gave prior notice

to his supervisor. The one-half point assessed for the

morning absence gave Jones a total of three points in

the preceding four-month period. In accordance with

its attendance policy, C&D terminated Jones’s employment on October 7.

Jones filed suit on June 7, 2010, alleging that C&D

interfered with his right to take FMLA leave. On May 6, the

company and Jones filed cross-motions for summary

judgment. The district court subsequently granted C&D’s

motion and denied Jones’s motion, reasoning that Jones

was not entitled to leave on the morning of October 1
No. 11-3400 5

because he did not receive medical treatment for his

condition. Jones filed this timely appeal.

II. ANALYSIS

On cross motions for summary judgment, we review

the district court’s resolution de novo, viewing the record

in the light most favorable to Jones and drawing all

reasonable inferences in his favor. See Clarendon Nat’l

Ins. Co. v. Medina, 645 F.3d 928, 933 (7th Cir. 2011). Summary judgment is appropriate when “the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). We must affirm a grant of

summary judgment if Jones cannot establish an element

of his claim on which he would bear the burden of proof

at trial. Harney v. Speedway SuperAmerica, LLC, 526 F.3d

1099, 1104 (7th Cir. 2008).

The FMLA generally provides eligible employees with

as many as twelve weeks of unpaid leave during any

twelve-month period. 29 U.S.C. § 2612(a)(1). Employers

are prohibited from interfering with an employee’s use

or attempted use of FMLA leave. Id. § 2615(a)(1). To prevail

on an FMLA-interference theory, the plaintiff employee

must prove that: “(1) she was eligible for the FMLA’s

protections; (2) her employer was covered by the FMLA;

(3) she was entitled to take leave under the FMLA; (4) she

provided sufficient notice of her intent to take leave; and

(5) her employer denied her FMLA benefits to which she

was entitled.” Makowski v. SmithAmundsen LLC, 662 F.3d
6 No. 11-3400

The parties also dispute the fourth and fifth elements of 1

Jones’s interference claim, but our conclusion as to the

third element is dispositive.

818, 825 (7th Cir. 2011) (quoting Goelzer v. Sheboygan Cnty.,

Wis., 604 F.3d 987, 993 (7th Cir. 2010)).

The dispute in this case focuses squarely on the third

element—whether Jones was entitled to take FMLA leave

on the morning of October 1. Among other reasons, an 1

employee is entitled to FMLA leave if she suffers from

“a serious health condition that makes the employee

unable to perform the functions of the position of such

employee.” 29 U.S.C. § 2612(a)(1)(D); see also Kauffman v.

Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). Thus,

for Jones to be entitled to FMLA leave, he must suffer

from a “serious health condition,” and he must be unable

to perform the duties of a machine operator. See Stoops

v. One Call Commc’ns, Inc., 141 F.3d 309, 312 (7th Cir.

1998). The Act itself and the accompanying Department

of Labor (DOL) regulations provide further clarification

as to each component. First, the Act defines a “serious

health condition” as “an illness, injury, impairment, or

physical or mental condition that involves—(A) inpatient

care in a hospital, hospice, or residential medical care

facility; or (B) continuing treatment by a health care

provider.” 29 U.S.C. § 2611(11). Jones maintains, and C&D

does not dispute, that his leg and back pain and bouts

of anxiety qualify as a “serious health condition” involving

continuing treatment.

Jones must satisfy a second requirement to be entitled

to FMLA leave under the serious-health-condition sub-
No. 11-3400 7

section. Namely, he must also show that his health prevented him from performing the duties of a machine

operator. See id. § 2612(a)(1)(D). The DOL regulations

define an employee unable to perform his duties as

one “who must be absent from work to receive medical treatment for a serious health condition.” 29 C.F.R.

§ 825.123(a) (emphasis added). In other words, an employee who receives treatment for a serious health condition is automatically considered to be unable to

perform the functions of her position. Importantly,

§ 825.123 uses the word “must” to imply that the employee’s absence is necessary for that employee’s treatment. Alternatively, an absence for unnecessary treatment or no treatment at all means that the employee is

not sufficiently incapacitated so as to render her unable

to perform her duties. See Ridings v. Riverside Med.

Ctr., 537 F.3d 755, 770 (7th Cir. 2008) (“[B]ecause the

employee had not demonstrated that he was receiving

treatment that rendered him unable to work on those

three days, he did not demonstrate FMLA entitlement.”

(discussing Darst v. Interstate Brands Corp., 512 F.3d 903,

911-12 (7th Cir. 2008))). Therefore, the critical inquiry

to this dispute turns on the definition of treatment.

The district court and C&D agree that Jones’s morning

errands do not constitute treatment as a matter of law,

while Jones argues that receipt of the prescriptionrefill note qualifies.

The FMLA does not explicitly define treatment, but the

DOL regulations seemingly attempt to do so in two

different provisions. Section 825.115 defines “treatment”

and § 825.113(c) defines both “treatment” and “a regimen
8 No. 11-3400

of continuing treatment.” The question for us is whether

these treatment definitions can be applied to § 825.123 to

determine whether “treatment” prevented Jones from

performing the functions of his position.

We begin by noting that the DOL, in 29 C.F.R.

§ 825.113(a), parrots the Act’s definition of a “serious

health condition,” except to note that § 825.114 further

defines “inpatient care” while § 825.115 further defines

“continuing treatment.” Section 825.115 then lists the

ways in which an employee can prove that she suffers

from a serious health condition requiring continuing

treatment. But importantly for this case, § 825.115 does

not define what constitutes such treatment. In other

words, Jones’s pain and anxiety may constitute a chronic

condition requiring continuing treatment, see 29 C.F.R.

§ 825.115(c), but that subsection is not helpful in determining whether Jones actually received medical treatment

that prevented him from performing his job duties. And,

the cases Jones attempts to rely upon generally only

discuss whether the employee has a serious health condition requiring continuing treatment—an element not at

issue here. See, e.g., Stevenson v. Hyre Elec. Co., 505 F.3d

720, 727-28 (7th Cir. 2007); Harrell v. Jacobs Field Servs.

N. Am., Inc., No. 09-CV-02320, 2011 WL 3044863, at *5 (C.D.

Ill. July 25, 2011); Bardwell v. GlobalSantaFe Drilling Co.,

No. H-06-0171, 2007 WL 2446801, at *13 (S.D. Tex. Aug. 23,

2007); Wheeler v. Pioneer Developmental Servs., Inc., 349

F. Supp. 2d 158, 165 (D. Mass. 2004). Section 825.115

brings us no closer to understanding the term “treatment”

as used in § 825.123.
No. 11-3400 9

At first blush, the definition of “treatment” in

§ 825.113(c) appears more promising (the provision

begins by stating, “The term ‘treatment’ includes . . . .”).

Jones asks us to apply a portion of § 825.113(c) to our

determination of whether he received treatment that

prevented him from performing his job. Specifically, Jones

points to the language in this provision that suggests

that “a course of prescription medication” constitutes

treatment. But, Jones overlooks a more nuanced—and

accurate—reading of this provision.

The DOL defines both “treatment” and “a regimen of

continuing treatment” in 29 C.F.R. § 825.113(c). The first

two sentences of that subsection suggest that “treatment”

includes examinations and evaluations of a “serious

health condition,” but excludes routine physical examinations. The last two sentences of § 825.113(c) define

“a regimen of continuing treatment,” as including “a

course of prescription medication,” but not necessarily

those activities that can be “initiated without a visit to a

health care provider.” Jones points to the prescriptionmedication reference as evidence that he received

FMLA treatment, but as already indicated, the “regimenof-continuing-treatment,” like the “continuing-treatment”

definition, is only useful for determining whether a

“serious health condition” exists. And there is some

logic to this distinction. Intuitively, a course of prescription medicine is evidence that an employee suffers from

a serious medical condition requiring continuous

treatment—that is, the medicine is designed to treat the

condition. But, taking prescription medicine is not indicative of whether an employee receives treatment
10 No. 11-3400

that prevents her from performing her job. Many chronic

conditions require a course of prescription medication,

but the FMLA requires something more for an employee

to become entitled to leave—inability to perform her

job functions. A course of prescription medication and

an inability to perform a job are not mutually exclusive.

This distinction squares with our earlier interpretations

of “treatment.” In Darst v. Interstate Brands Corp., we found

that “treatment” does not include actions such as calling

to make an appointment or scheduling substanceabuse rehabilitation. 512 F.3d at 911. Instead, treatment

“include[s] examinations to determine if a serious health

condition exists and evaluation of the condition.”

Id. Darst’s interpretation is in line with the definition

of “treatment” as used in the first two sentences of

§ 825.113(c). See also Ridings, 537 F.3d at 770.

That brings us back to Jones’s October 1 absence.

That morning, Jones retrieved his paycheck from C&D

and visited Dr. Lubak’s clinic to ensure his referral

to another lab was in order. He also obtained a

prescription-refill note. Jones’s first two activities

plainly do not constitute treatment that otherwise prevented him from working that morning. See Darst, 512

F.3d at 911. Nor does merely picking up a prescriptionrefill note. Although we can envision a scenario where

obtaining a prescription note in connection with a physician’s examination might constitute treatment, this case

does not approach that hypothetical. Here, Dr. Lubak

never evaluated or examined Jones, and Jones even conceded in a deposition that he was never “physically
No. 11-3400 11

examined” that morning. Jones arrived at Dr. Lubak’s

clinic unannounced and appeared only to briefly speak

with his physician in the office lobby. The entirety

of Jones’s interaction with Dr. Lubak consisted of the

physician’s acquiescence to refill a prescription. There

is simply no evidence that Jones was examined, and

therefore treated, that morning. See 29 C.F.R. § 825.113(c).

Ultimately, Jones’s prescription-refill note might be

evidence of his need for continuing treatment—which

only suggests that Jones has a serious health condition—but, it is not evidence that he received treatment

that required him to be absent from work that morning.

See id. § 825.123(a). Accordingly, we find that Jones

did not receive treatment on the morning of October 1,

and therefore, he was not entitled to take FMLA leave

as a matter of law.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s grant of summary judgment in favor of C&D

Technologies.

6-28-12