[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 10585 Non

- Argument Calendar

________________________ D.C. Docket No. 1:11

- cv - 03836

- KOB KATRENIA TIPPINS , Plaintiff

- Appell ant ,
v ersus HONDA MANUFACTURING OF ALABAMA, LLC , Defendant

- Appellee

.

________________________ Appeal from the United States District Court for the Northern District of Alabam a

________________________ (July 15, 2013) Before WILSON , PRYOR and ANDERSON , Circuit Judges. PER CURIAM: Katrenia Tippins appeals the summary judgment against h er complaint that Honda Manufacturing of Alabama LLC, interfered with her right under the Family and Medical Leave Act to take leave for a dental condition . 29 U.S.C. § 2615(a)

.

Case: 13-10585 Date Filed: 07/15/2013 Page: 1 of 52 The district court ruled that Tippins ’s dental condition did not qualify as a serious health condition involving continuing treatment because she was not incapacitated for a co ntinuous period of more than three days. See 29 C.F.R. § 825.115(a). We affirm

. Approximately five years after Honda hire d Tippins , she was absent and failed to timely provide leave forms to excuse her absences . On September 28, 2009, Tippins “clocked out” one hour early

. On October 7, 2009, Tippins submitted a request to excuse her absence on September 28 for medical treatment , but Honda denied the request as untimely based on it s policy that employees seek approval of leave within 4 days of an absenc e. On October 15, 2009, Tippins did not report to work, but she submitted a request for a leave of absence on the basis that she had an “[i]nfection and swelling of the face, nose, ears, lips and chin and eye.” That afternoon at 3:00 p.m., Tippins met wit h Dr. Fred Atwell, an oral surgeon, who scheduled Tippins to undergo a tooth extract ion on Wednesday, October 21, 2009. Tippins had her tooth removed as scheduled and remained at home the rest of the work week

. Dr. Atwell submitted medical leave forms to excuse Tippins’s three

- day absence

. On October 26, 2009, Dr. Atwell sent Honda a certificate of health care provider form stating that Tippins underwent “extraction of [a] tooth”; her procedure did not involve a “serious health condition”; her “commence d ate of

Case: 13-10585 Date Filed: 07/15/2013 Page: 2 of 53 incapacity [was] 10

- 21

- 09”; she could “return to normal activities [on] 10

- 24

- 09”; and her only “actual/expected date[] of treatment [was] 10

- 21

- 09.” Honda immediately notified Tippins that her provider form stated she had been “incapacitated but t hat it was not a serious health condition” and asked her to “have [her] physician correct certification and initial changes.” On October 29, 2009, Dr. Atwell sen t Honda a copy of the October 26 form on which Dr. Atwell had add ed that Tippins underwent the extraction for “abscess tooth #4.” Honda again immediately notified Tippins that her “doctor [was] indicating that [she] was incapacitated but that it was not [a] serious health condition” and instructed Tippins to have her “physician . . . complete the Certification of Health Care Provider in order to certify condition as a serious health condition and FMLA.” O n November 3, 2009, Dr. Atwell sent Honda a nother copy of the same form on which Dr. Atwell had added that Tippins’s condition was a “serious hea lth condition”; her “ commence date of incapacity [was] 10

- 21

- 09”; she could “return to normal activities [on] 10

- 24

- 09”; her “in

- person treatment visit(s) [were on] 10/15/09 [and] 10/21/09”; and she received prescriptions for A moxicillin and L orcet. Honda determined that Tippins ’s dental condition did not qualify for leave under the Family and Medical Leave Act . As a result, Honda refused to excuse

Case: 13-10585 Date Filed: 07/15/2013 Page: 3 of 54 Tippins’s absence from work . Later, Honda fired Tippins for violating the company attendance policy

. Tippins complained that Honda had denied her leave for a “serious medical condition,” 29 U.S.C. § 2615(a) , that “involve[d] . . . continuing treatment, id. § 2611(11) . Honda answered and moved for summary judgment on the ground that Tippins ’s dental condition di d not qualify as a “ serious medical condition involving continuing treatment ” because she did not have “[a] period of incapacity of more than three consecutive, full calendar days , ” 29 C.F.R. § 825.115(a). Tippins moved for partial summary judgment and argued t hat the “remedial” purposes of the Act allowed her to combine her absences on September 28 and October 15 with her three

- day absence to satisfy the period of incapacity

. The district court granted the motion of Honda for su mmary judgment and denied Tippins’s motion

. The district court ruled that Tippins could not combine her three

- day absence with her nonsuccessive absence s. The district court based its decision on the language of the regulation requiring that the “ period of incapacity [ be compose d ] of more than three consecutive, full calendar days ,” 29 C.F.R. § 825.115(a), and our decision in Russell v. North Broward Hospital , 346 F.3d 1335 (11th Cir. 2003), holding that the term “consecutive” in an earlier version of the regulation required that the period of incapacity be “continuous,” id. at 1338.

Case: 13-10585 Date Filed: 07/15/2013 Page: 4 of 55 The district court did not err in granting summary judgment against Tippins. For Tippins’s dental condition to qualify as a “serious health condition involving continuing treatment,” h er “period of incapacity [had to consist] of more than three consecutive, full calendar days .” 29 C.F.R. § 825.115(a). In other words, Tippins had to prove that she had a “ continuous [, or uninterrupted , ] period of incapacity extending more than 72 hours

. ” See Russell , 346 F.3d at 1338. Dr. Atwell certified that Tippins was incapacitated between October 21 and October 24, but that three

- day period wa s not enough. And Tippins ’s absences on September 28 or October 15 d id not count toward the period of incapacity because they were not “consecutive” to, 29 C.F.R. § 825.115(a), or “continuous” with , Russell , 346 F.3d at 1338, the three

- day absence attributable to her dental procedure

. We AFFIRM the summary judgment in favor of Honda

. Case: 13-10585 Date Filed: 07/15/2013 Page: 5 of 5