NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0335n.06 No. 12-5309 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

CYNTHI A GRAHAM, Plaintiff-Appellant,

v. B L U E C R O S S B L U E S H I E L D O F TENNESSEE, I

NC., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : SUTTON and STRANCH, Circuit J udg es, and STEEH, D istrict J udg e * JANE B. STRANCH , Circuit J udg e. P l ai n t i ff Cy nthia Gra ham worke d for defe ndant Blue Cross BlueShield of Tenne ssee ( BCB ST) until she was terminate d for e x cessive a bsentee ism afte r failing to s ubmit medical rec ertifica tion following a period of ex tended leave. Gra ham fil ed suit ag ainst BCB ST, alleg ing that her termination violated the F amily Medica l L eave Act of 1993 (F ML A). The district court gra nted BCB ST’s motion for summary judgme nt, holding that no g enuine issue of materia l fac t exis ted as to whether it had a re as o nable basis for seeking

rec ertifica

tion and was justified in terminating Gra ham for excessive absente eism afte r she failed to provide it. Gra

ham appe als this decision. We AF F IRM the judg ment of the district cour t.

T h e Ho n orable Geor g e Caram Steeh, United States District Court J udg e for the Eastern * District of Michig an, sitting by desig nation.I. BACKG ROUND

Cy nthia Gra ham was em ploy ed by BCB ST as a config uration analy st. During her tenure , there wer e two rele vant employ ee policies in forc e: an attendanc e policy and an FML A leave policy

. The attendanc e policy provided that an employ ee could fac e termination if he or she acc rued more than five unapprove d absenc es in a rolling 12-month period. I t expli citly provided that an absenc e

wo u l d not be considere d an incident if cover ed under the FML A. Gra ham admitted that s h e wa s familiar with this policy

. The FML A policy , administered by Unum, require d employ ees to provide cer tification from

a health car e provider. BCB ST also “re serve [d] the righ t t o require re- cer tification of the continuance of a serious health condition ever y [si x ] months.” Rece rtification could also be require d prior to the expiration of six months if “[c]ircumstances descr ibed by the orig inal cer tification ha[d] chang ed signific antly .” Gra ham was awa

re that when an employ ee’ s ini t ial cer tification for intermittent FML

A leave provided that t h e fre quency of absenc es was unknown, Unum would reque st updated information from the employ ee’ s phy sician once he or she acc rued seven absenc es in a month. I n May 2010, Gra

ham reque sted intermittent FML A leave for migr aine heada ches; two day s later, Unum sent a let t er s t at ing that she was elig ible for leave, but would need to submit medical

cer tification by May 26. Gra

ham’s medical cer

tificatio n s ta

ted that the expected leave fre quency was

one episode per month, three to four day s per episode. On J une 18, Unum notified Gra ham that the submitt ed cer

tification did not support her leave reque st beca use she had reque sted leave four times p er month lasting three to four day s, but permitted her to submit additional information from her doctor. On J une 28, Gra

ham’s doctor modified the cer tification, noting that Gra

ham “occ asionally ”

-2-had two heada ches per month lasting five to six day s. Gra ham, howeve r, subsequently chang ed her reque sted leave to four episodes per month, six day s per episode. On J une 30, Unum sent Gra ham another letter stating that her leave reque st and her medical cer tification wer e inconsistent, but ag ain allowed for modificatio n s t o t h e cer tification. On J uly 2, Gra ham’s phy sician amende d the

cer tification, but stated that he could not “g ive a clea r fre quency or duration [for her absenc es] at this time.” On J uly 13, Unum notified Gra ham that she had been approve d for intermittent FML A leave for the periods of May 13 throug h J uly 1 and Jul y

12 throug h J anuar

y 1, 2011. The letter clar ified that additional medical cer tification might be require d should Gra ham seek to extend her leave “or

as otherwise permitted b y l aw ” an d that she must notify Unum and her supervisor “within [t wo] business day s from the absenc e eac h time [she] need[ed] to take intermittent le ave for the cer tified

rea son.” Gra

ham stated that she understood that her reque sted leave was for an intermittent schedule , not a par

ticular block of

time. Following this approva l, G raha m missed the next 28 day s of work, from J uly 14 to A ug ust 20. On J uly

26, Unum sent Gra

ham a letter

informing her that the “freque ncy and/or duration” of her absenc es differ ed from her medical cer tification and that it require d rec ertification by Aug ust 13 in order to support absenc es bey ond J uly 22, which was the date of Gra ham’s seventh absenc e that month. Gra

ham claimed that she did not rec eive the letter, althoug h she admitted that it was proper ly addre ssed. On Aug ust 17, Unum sent a follow-up letter informing Gra ham that it had not rec eived

rec ertifica

tion and that any absenc es from J uly 23 onwar d wer e not FML A-a pproved. Gra

ham also claimed that she did not rece ive this letter. Gra ham returne d to work betwee n Aug ust 20 and Aug ust 30, althoug h it is unclea r whether she returne d for this entire period or was only at work on specific day s. She was absent ag ain from

-3-Aug ust 30 to September 3. Gra ham acknow ledg ed knowing in September that her em p l oy ment might be jeopar dized be cause of excessive absente eism, but indica ted she was unsure of when she b ec am e aw ar e of this fac t. She also alluded to speaking with Har old Gault, a human resour ces consultant, about the need to provide additional information from her doctor. BCB ST alleg ed that Gra ham met with supervisors on sever al occa sions during September reg arding the need to submit additional medical cer

tification. Gra

ham asser ted in her aff

idavit that these meeting s did not occur , but her previous deposition testimony noted that she met with supervisors closer to the time she was terminated. Be cause Gra ham had not submitt ed medical rec ertificati o n b y S ep tember 24, her employ ment was ter

minated base d on the ac cumulation of 26 unexcused abse nces. Gra ham filed suit ag ainst BCB ST, alleg ing that it was “interf ering with, res training and deny ing” her rig hts under the FML A. BCB ST filed a moti o n for summary judgme nt in which it arg ued that Gra

ham was terminated for excessive absenc es that wer e no t FM L A-qualified. The district court g rante d BCB ST’s motion, initially reje cting Gra ham’s contention that the “unknown” fr equency of absenc es in her initial medical cer tification authorized use of her rema ini n g FM L A l ea v e in any form she wished. I t also conclude d that no g enuine issues of materia l fact ex i s t ed reg arding the rea sonablene ss of BCB ST’s reque st for medical rec ert ification due to chang ed circ umstances—the duration of Graham’s a bsence s exceede d any

of her past absenc es. The c ourt found it unnece ssary , howeve r, to decide whether the policy of requiring rec ertification afte r seven monthly absenc es was rea sonable. Be cause Gra ham failed to provide rec ertifica tion afte r having the opportunity

to do so, the court rule d that BCB ST was justified in terminating her.

-4-II. DISCUSS ION

A. Stand ard of Review This court revie ws a district court’s g rant of summary judgme nt de novo. Chapman v. United Auto W orkers Local 1005 , 670 F.3d 677, 680 (6th Cir. 2012)

. “Summary judgme nt is appropr iate only if the pleading s, depositions, answe rs to interrog atories, and aff idavits show there is no g enuine issue as to any materia l fac t and the moving party is entitled to judgme nt as a matter of law.” Bobo

v. United Parcel Serv., Inc. , 665 F.3d 741, 748 (6th Cir. 2012) (citing Fe d. R. Civ. P. 56(a) & (c) ). The burde n falls on the moving party to demonstrate that no g enuine issues of ma terial fa ct exist

. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). I n deter mining whether summary judgme nt is appropria te, appe llate courts view the fac ts, including all infere nces, in the lig ht most favorable to the nonmoving party

. Chattman v. Toho Tenax Am., Inc. , 686 F.3d 3 3 9 , 3 4 6 (6 t h Cir. 2012) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986))

. A jury , rathe r than a judge , is responsible for making cre dibilit y deter minations, weig hing the evide n ce, and draw ing leg itimate infere nces from the facts. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 2 55 (1 986). The centr al inquiry at the summary judgme nt stag e “is whether the evidenc e pres en t s a sufficie nt disag ree ment to require s u b m i s s i o n of [t he plaintiff’s] claims to a jury or whether the evidenc e is so one-sided tha t [t he defenda nt] must preva il as a matter of law.” Ondricko v . MGM Grand Detroit, LLC , 689 F.3d 642, 648 ( 6th Cir. 2012) (citing Anderson , 477 U.S. at 251-52). B. Interfere nce Claim i. Initial me dical cert if ication The FML A allows an employ ee who suffe rs from a “ser ious health condition” to take a total of twelve wee ks of leave ea ch y ea r i f the condition rende rs him or her “unable to perf orm the

-5-functions of the position.” 29 U.S.C. § 2612(a) (1)( D). Migr aine heada ches are con sidered a “ser ious

health condition” for purposes of the FML A. See 29 C.F.R. § 825.113(d) (providing that “hea dache s other than migraine ” are not “ser ious h ea l t h co n d itions” under the FML A (empha sis added) ). FML A leave may be taken on an intermittent basis, see 29 U.S.C. § 2612(b)( 1), which this court has descr ibed as “a series of absenc es, separ ated by day s during which the employ ee is at work, but all of which are taken for the same medical rea son, subject to the same notice, and taken during the

same twelve- month period.” Davis v. Mich. Bell Tel. Co. , 543 F.3d 345, 350-51 (6 t h Cir. 2008) (interna l quotation marks omitted). Gr ah am claims that her initial medical cer tification entitled her to take leave in whatever incre ment she chose, and that BCB ST’s relianc e on her absenc es to justify her termination violated the FML A. I n other words, she asser ts an “interf

ere nce” claim under the FML A. See Culpepper v. BlueCross BlueShield of Tenn., Inc. , 321 F. App’x 491, 496 (6th Cir. 2009) (“A n employ ee . . . who believes that she was entitled to FML A leave with respe ct to her unexcused absenc es, may asser t a

cause of action for FML A interfe renc e.”)

. I n order to succe ed on an interfe renc e claim, Graham must establish the following e lements: (1) she was an elig ible employ ee, (2) the defe ndant was an employ er as define d under the FML A, (3) she was entitled to leave under the FML A, (4) she g ave the employ er notice of her intention to take leave , and (5) the employ er denied the employ ee FML A bene fits to which she wa s entitled. Edgar v. JA C Prods., Inc. , 443 F.3d 501, 507 ( 6th Cir. 2006). We ag ree with the district court’s ruling that Gra ham’s initial medical ce rtification did not entitle her to take her rema ining nine wee ks of FM L A leave in the config uration of her choice —which g oes to the fourth element of Gra ham’s claim. One of the FML A’s purposes at issue

-6-here —entitling employ ees to reasona ble leave for personal medical rea sons—must be effec tuated “in a manner that acc ommodates the leg itimate interests of employ ers.” 29 U.S.C. § 2601(b)( 1)–(3)

. T h e district court corr ectly observe d that the FML A’s require ment that an employ ee’ s medical

cer tification for intermittent leave includ e “t h e expected duration of the intermittent leave ,” 29 U.S.C. § 2613(b)( 6), serve s to put the employ er on notice as to how much work the employ ee might miss and to allow the employ er to plan acc ording ly

. To h o l d t h at a m edica l cer tification for intermittent leave —which provides no estimate as to t h e fr equenc y or duration of t he employ ee’ s absenc es—authorizes an employ ee to take leave in whateve r incre ment he or she chooses would not proper ly balanc e the e mploy ee’ s interests with those of the e mploy er. Be cause we ag ree with the district court’s ruling on t h i s m at t er , our focus is on the fifth element of Gra

ham’s interfe renc e claim. This require s us to analy ze whether g enuine i s s u es o f materia l fac t exi st reg arding the re asonable ness of B CBST’s re quest for me dical re cer tification. ii. Request for m edical rec ert if ication An employ er may “re quire that [an] elig ible employ ee obtain subsequent [m edica l ] re cer tifications on a reasonable basis .” 29 U.S.C. § 26 13(e) (empha sis added)

. That which constitutes

a “re asonable basis” is undefine d by the FML A itself. I t is expanded upon, howeve r, in the rele vant reg ulations. Gene rally , an em p loy er cannot reque st rec ertification more often than ever y 30 day s “and only in connec tion with an absenc e by the employ ee.” 29 C .F.R. § 825.308(a)

. Howeve r,

re cer tification may be reque sted more fre quently if “[c]ircumstances descr ibed by the previo u s

cer tification have chang ed signific antly ( e.g. , the duration or fre quency of the absenc e, the nature or

sever ity of the illness, compl i ca t i o n s ).” 29 C.F.R. § 825.308(c) (2). The following example is provided:

-7-[I ]f a medical cer tification stated that an employ ee would need leave for one to two day s when the employ ee suffe red a migr aine heada che and the employ ee’ s absenc es for his or her last two migr aines lasted four day s eac h, then the incre ased duration of absenc e might con s ti tu

te a s ig n if ic a n t c hang e in circ umstances allowing the employ er to reque st a rec ertifica

tion in less than 30 day s. Id. I f the employ er reque sts re ce rt i fi ca t ion, the employ ee has 15 cale ndar day s to obtain the appropr iate documentation. See 29 C.F.R. § 825.305(b); see also 29 C.F.R. § 825.308(d). “At the 1 time the employ er reque sts c ertifica tion [or rec ertification, it] must also advise an employ ee of the anticipated conseque nces of an employ ee’ s failure to provide [i t] .” 29 C.F.R. § 825.305(d). T he employ er may deny the employ ee FML A leave if the employ ee fails to submit medical cer tification (as long as the reque st c omplies w ith the FML A). Id. ; see also 29 C.F.R. § 825.313(c)

. Whil e the orig inal cer

tification reque st must be in writing , “[a]n employ er’ s oral reque st to an em p loy ee to furnish any

subsequent ce rtification is sufficie nt.” 29 C.F.R. § 825.305(a ). We ag ree with the district court’s ruling as to the rea sonablenes s o f BCB ST’s reque st for

rec ertifica

tion afte r Gra

ham’s 28 consec utive absenc es, in that they constituted “sig nificantly chang ed circ umstances” under the applicable reg ulation. See 29 C.F.R. § 825.308(c) (2). As the district court observe d, this period of absente eism was twice as long as Gra ham’s longe st previous episode in Marc h 2007. Cf. Andrews v. CSX Transp., Inc. , No. 3:0 6 -cv-704-J-32HTS, 2009 WL 5176462, at *7 (M.D. Fla. Dec

. 22, 2009) (finding the employ er’ s rec ertification reque st t o be

rea sonable wher e the employ ee, who was approve d for intermittent leave of an “unknown” duration, incurre d 24 absenc es, which w as “a signific ant up-tick in [her] use of FML A leave time”).

Although it is not entirely clea r from Gra

ham’s deposition when in September she beca me 1 awa re of the need for rec ertifica tion, she does not arg ue that she wa s gi v en i n adequate time to respond, only

that she wa s not require d to provide re cer tification. -8-Gr ah am co ntends, howeve r, that the district court’s g rant of summary judgme nt was

inappropria te beca

use it overlooke d the asser tion in her aff

idavit (and ref

ere nced in her response to BCB ST’s statement of undisputed fac ts) that she wa s not notified of the need to submit additional medical cer

tification. The d istrict court, howeve r, based its decision on Gra ham’s deposition te s timony that by September 2010, she was awa re BCB ST considere d her initial medica l c e r ti f ic a ti o n inadequa te to suppor

t the number of a

bsence s she had a ccr

ued. Gr aham’ s arg ument appea rs to be based on a belief that BCB ST was require d to reque st rec ertification in written form. Howeve r, an oral reque st for subsequent cer tificat i o n is permissible under the applicable reg ulation. See 29 C.F.R. § 825.305(a)

. There fore , even assuming that Gra ham did not rec eive written notice, she was sufficie ntly aler

ted to the need for rec ertification and to the fac t that her employ ment was in jeopar dy if it was not provided. As to the allege d fact u al d i scre pancy betwee n whether Gra ham had sever al m eeting s with her supervisors, Gra

ham admitted in her deposition to eng ag ing in such meeting s, althoug h she contende d that they occur

red closer to the date on which she was terminated. Fur thermore , she noted t h at during the time period leading up to her termination, her supervisors asked whether s h e wa s obtaining the nece ssary information from her doctors. To the extent that the statement in Gra ham’s aff idavit contra dicts BCB ST’s asser tions, we do not rea d it to cre ate a g enuine issue of materia l fac t. The g ener al rule is that “[a] party may not cre ate a fac tual issue by filing an aff idavit, afte r a motion for summary judgme nt has been made, which contra dicts her ear lier deposition testimony ,” Reid v. Sears, Roebuc k & Co. , 790 F.2d 453, 460 (6th Cir. 1986), and Gra ham provides no justification for any conflict between her two statement s . Cf. Aerel, S.R.L. v. PCC Airfoils , L.L.C

. , 448 F.3d 899, 908 (6th Cir. 2006) (holding that an aff idavit filed afte r a motion for summary judgme nt that direc tly

-9-contra dicts prior sworn testimony “should be stricken unless the party opposing summary judgme nt

provides a persua sive justification for the contra diction”). Moreove r, Graham was awa re that her employ er require d additional medical cer tification befor e it would desig nate her absenc es as FML A leave . The manne r in which this information was impar ted is not disposi tive in this case. We pause to note, as did the district court, that the initial reque st for rec ertification occur red afte r only seven monthly absenc es, a reque st made pursuant to B CBST’s FML A policy

. Although it is possible that such a blanket policy may not comport with the FML A, the district court found the 28-day stretch of absenc es t o be operative in this case . Be cause we also base our decision on this

consec utive period of a

bsence s, it is unnecessar

y to consider the pr opriety of B CBST’s policy

. I f an employ ee fails to provide the reque sted rec ertification, “the leave is not FML A leave .” 2 9 C.F.R. § 825.313(c)

. Under these circ umstances, BCB ST was justified in concludin g t h at t h e absenc es at issue we re n o t FM L A leave based on Gra ham’s failure to provide the nece ssary

rec ertifica

tion. BCB ST could there fore proper ly count the day s afte r which rec ertification was

nece ssary in support of Gra

ham’s ter mination. III. CONCLUSION For the fore g oing rea sons, the district court’s g rant of summary judgme nt in favor of BCB ST is AF F IRMED

.

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