In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3391

JAMES G. HANSEN,

Plaintiff-Appellant,

v.

FINCANTIERI MARINE GROUP, LLC, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:12-cv-00032-WCG — William C. Griesbach, Chief Judge.

____________________

ARGUED MAY 19, 2014 — DECIDED AUGUST 18, 2014

____________________

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. James Hansen sued his former employer, Marinette Marine Corporation, and its parent company, Fincantieri Marine Group, LLC (collectively FMG) in 

federal district court in Wisconsin, alleging violations of the 

Family and Medical Leave Act of 1993 (FMLA or Act), 29 

U.S.C. §§ 2601–2654. He claims that FMG interfered with his 

rights under the FMLA and terminated his employment in 

retaliation for his exercise of rights under the Act. 
2 No. 13-3391

The district court granted summary judgment in favor of 

FMG. The court ruled that without expert testimony Hansen

could not show that his serious health condition rendered

him unable to work (i.e., perform one or more of the essential functions of his position) during the absences for which 

he claims he was entitled to FMLA leave and for which he 

was terminated, and Hansen had no such testimony. Because the law does not require a plaintiff to present expert 

testimony as to his incapacity, and Hansen’s evidence has 

raised a genuine issue of material fact for trial, we vacate the 

district court’s judgment and remand for further proceedings consistent with this opinion. 

I. Background

Hansen was employed by FMG, which has an attendance 

policy. Under the policy, employees accumulate points for 

unexcused absences from work. An employee incurs one 

point for missing more than four hours of a scheduled work 

day. A point expires one year after it was incurred and then 

is deducted from an employee’s total number of points. 

When an employee incurs ten or more points within a year, 

his employment is subject to termination. FMLA leave is not 

counted under the attendance policy. FMG’s third party administrator, Matrix Absence Management, Inc., administers

the attendance policy. 

As of May 2, 2011, Hansen had nine attendance points. 

He was absent from work four days from May 3 through 

May 6, and on May 9. On May 3, he requested FMLA leave 

for his serious health condition: depression. On May 11, 

FMG received a medical certification from Hansen’s physician, Dr. Michael Post, stating that Hansen had a condition 

that would cause episodic flare-ups periodically preventing 
No. 13-3391 3

him from performing his job functions. The physician wrote 

that Hansen “could not concentrate on [the] task at hand.” 

Dr. Post indicated that the condition commenced in October 

2010 and was exacerbated on May 3, 2011. He stated that the 

probable duration of the condition was “months” and estimated the frequency of flare-ups as four episodes every six 

months and the duration of the related incapacity as two to 

five days. Based on Dr. Post’s certification, Hansen’s absences earlier that month were approved as FMLA leave and he 

did not incur any attendance points because of them.

Hansen requested FMLA leave for May 23, and May 31–

June 1, and again for June 13–June 15. He was granted 

FMLA leave for those absences and incurred no attendance 

points for them. Hansen next requested FMLA leave for June 

22 and 27. Matrix initially denied these requests, but FMG 

overruled it and granted Hansen FMLA leave. So Hansen

also incurred no attendance points for these absences. 

Next, Hansen requested FMLA leave for an absence on 

July 1 (his eighth episode). On July 6, Matrix sent Dr. Post a 

fax, indicating that the July 1 absence “is out of his frequency 

and duration. Please confirm item #7.” Item #7 on the medical certification form asks about the employee’s need to attend follow-up appointments or work part-time or on a reduced schedule because of the employee’s condition. It 

seems Matrix intended to seek confirmation about Item #8 

on the certification form, which asks about the estimated 

frequency and duration of episodic flare-ups as well as the 

duration of the related incapacity. That same date, Dr. Post 

faxed back his response to Matrix: “Item #7 confirmed.” 

Based on this confirmation, Matrix denied Hansen’s request 
4 No. 13-3391

for FMLA leave because his “[f]requency [was] exceeded.”

Hansen incurred one attendance point as a result.

Hansen requested FMLA leave for absences on July 11–

13 (his ninth episode) and again on July 18 (his tenth episode). Matrix denied these requests, indicating that Hansen’s

“[f]requency [was] exceeded.” Hansen therefore incurred 

one attendance point for each day he was absent. As a result, 

he had accumulated thirteen points in one year. (Some of his 

points had expired and had been deducted from his point 

total, so he did not exceed ten points sooner.) 

On July 22, FMG met with Hansen and terminated his 

employment for violating its attendance policy. FMG explained that he “exceeded [his] frequency” under which he 

could “miss 4 times every 6 months” and that “Matrix called 

your doctor and there was no change in your certification.” 

Hansen asked if there was “any way to reverse any of the 

dates?” and was told to “[g]et a hold of Matrix.” 

Subsequently, on July 26, Dr. Post sent FMG and Matrix a 

letter, indicating that he was modifying his original certification: he was increasing the period of incapacity “to cover the 

entire year of 2011 until December 31” and “[w]ith further 

insight into [Hansen’s] clinical course,” he was “amending 

question 8’s answer to increase[e] the frequency [of episodes] to once a month for a duration of 2–5 days per episode.” The letter did not mention or refer to Hansen’s July 

absences. FMG did not retract its termination of Hansen’s 

employment.

Hansen sued FMG under the FMLA alleging claims of interference and retaliation. The retaliation claim stands or 
No. 13-3391 5

falls with his interference claim.1 FMG moved for summary 

judgment, arguing that Hansen was not entitled to FMLA 

leave for his July 2011 absences because he significantly exceeded the estimated frequency in Dr. Post’s medical certification. The district court denied FMG’s motion, noting that it 

appeared Hansen was taking off more time than was medically necessary, but it was not so clear as to justify summary 

judgment. Shortly before trial, however, FMG sought reconsideration, arguing that Hansen needed expert medical testimony to establish that he was incapacitated due to his serious health condition during the July 2011 absences and that 

he had none. The court agreed, concluding that expert medical testimony was required to prove that Hansen’s serious 

health condition rendered him unable to perform the functions of his position during the absences for which he sought

FMLA leave. It therefore decided that Hansen could not establish entitlement to FMLA leave and granted FMG summary judgment on all claims. Hansen appealed. 

II. Discussion

On appeal, Hansen asks us to decide two issues: 1) 

whether an employer is allowed to deny intermittent FMLA 

leave when an eligible employee exceeds the estimated 

length or duration provided in his medical certification 

form, and 2) whether a plaintiff-employee is required to present expert testimony at trial to prove that he was incapacitated for each day for which he requested FMLA leave. FMG 

responds that Hansen cannot prove a prima facie case of 

 1 If Hansen was entitled to take leave under the FMLA for his July absences, he can establish a prima face case of FMLA retaliation: It is undisputed that he incurred attendance points for those absences, and 

those points led to the termination of his employment.
6 No. 13-3391

FMLA discrimination and retaliation without an expert witness or medical documentation to show that his July 2011 

absences were medically necessary. FMG also claims that 

Hansen’s appeal is frivolous and seeks sanctions under Rule 

38 of the Federal Rules of Appellate Procedure. We conclude 

that the district court erred in deciding that Hansen needed 

expert testimony to prove that his serious health condition 

rendered him unable to perform the functions of his job on 

the specific dates at issue. Hansen has evidence that raises a 

reasonable inference that he was entitled to FMLA leave for 

his July 2011 absences; therefore, we reverse the district 

court’s grant of summary judgment and deny FMG’s request 

for sanctions. 

We review the grant of summary judgment de novo, viewing the record and drawing all reasonable inferences in the 

light most favorable to the non-moving party. Spurling v. C 

& M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). Summary judgment is appropriate if the moving party “shows 

that there is no genuine dispute as to any material fact and 

[he] is entitled to judgment as a matter of law.” Id. (quotation marks and citation omitted). We will reverse a grant of 

summary judgment if there is “a material issue of fact ... that 

would allow a reasonable jury to find in favor of the nonmoving party.” Id. “A ‘court may not ... choose between 

competing inferences or balance the relative weight of conflicting evidence; it must view all the evidence in the record 

in the light most favorable to the non-moving party and resolve all factual disputes in favor of the non-moving party.’” 

Orton-Bell v. Indiana, No. 13-1235, --- F.3d ---, 2014 WL 

3566338, at *4 (7th Cir. July 21, 2014) (quoting Abdullahi v. 

City of Madison, 423 F.3d 763, 773 (7th Cir. 2005)).
No. 13-3391 7

A. The FMLA

The FMLA provides that an eligible employee may take 

up to twelve weeks of leave during any twelve-month period if he is unable to perform the functions of his position because of a serious health condition. 29 U.S.C. § 2612(a)(1)(D). 

An employer is prohibited from interfering with the exercise 

of or the attempt to exercise any right under the FMLA.

James v. Hyatt Regency Chi., 707 F.3d 775, 780 (7th Cir. 2013)

(citing 29 U.S.C. § 2615(a)(1)). And it is unlawful for an employer to retaliate against an employee who exercises or attempts to exercise FMLA rights. Id. at 781 (citing 29 U.S.C. 

§2615(a)(2)). To prevail on his interference claim, Hansen 

must show, among other things, that he was entitled to take 

leave under the FMLA for his July absences. Id. This is the 

focus of this appeal.

“An employee is entitled to leave under the FMLA if (1) 

she is afflicted with a ‘serious health condition,’ and (2) that 

condition renders her unable to perform the functions of her

job.” Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th 

Cir. 2011) (quoting Caskey v. Colgate-Palmolive Co., 535 F.3d 

585, 590 (7th Cir. 2008)). A “serious health condition” is defined in part as “an illness, ... impairment, or ... mental condition that involves ... continuing treatment by a health care 

provider,” 29 U.S.C. § 2611(11)(B), and a “period of incapacity,” 29 C.F.R. 825.115 (2009). “Incapacity” means the “inability to work ... or perform other regular daily activities due to 

the serious health condition.” 29 C.F.R. § 825.113(b). Because 

“incapacity” means the employee is unable to work “due to 

the serious health condition,” a finding of incapacitation 

goes toward the second prong of our analysis as to when an 
8 No. 13-3391

employee is entitled to leave. See Ames, 629 F.3d at 669. 

While “incapacity” and “serious health condition” are interrelated, as the definitions make clear, they are not interchangeable terms.

Some serious health conditions may be chronic, causing 

episodic rather than a continuous incapacity. Stoops v. One 

Call Commc’ns, Inc., 141 F.3d 309, 312 (7th Cir. 1998) (citing 29 

C.F.R. § 825.114(a)(2)(iii)(C)). Therefore FMLA leave “may be 

taken intermittently ... when medically necessary.” Stoops, 

141 F.3d at 312 (citing 29 U.S.C. § 2612(b)(1)); see also 29 

C.F.R. § 825.202(b) (“For intermittent leave ... because of 

one’s own serious health condition, ... there must be a medical need for leave ... .”).

When an employee initially requests FMLA leave, the 

employer may take the employee at his word and grant the 

request, or “may request certification by the employee’s 

healthcare provider.” Kauffman v. Fed. Exp. Corp., 426 F.3d 

880, 886 (7th Cir. 2005) (citing 29 U.S.C. § 2613(a)). If certification is requested, the employee must provide it “in a timely manner.” 29 U.S.C. § 2613(a); see 29 C.F.R. § 825.305(b). 

The health care provider’s certification for intermittent leave 

“shall be sufficient” if it provides the date the serious health 

condition began, its probable duration, appropriate medical 

facts about the condition, “a statement that the employee is 

unable to perform the functions of [his] position, ... a statement of the medical necessity for the intermittent leave ..., 

and the expected duration of the intermittent leave... .” 29 

U.S.C. § 2613(b)(1)–(3), (4)(B) and (6); see also Ridings v. Riverside Med. Ctr., 537 F.3d 755, 768 (7th Cir. 2008); 29 C.F.R. 

§ 825.306(a)(7) (requiring certification for intermittent leave 

to include “an estimate of the frequency and duration of the 
No. 13-3391 9

episodes of incapacity” (emphasis added)). The regulations 

suggest that “the employee’s submission of a complete medical certification is sufficient to trigger FMLA protection unless and until there is contrary medical evidence.” Smith v. 

Univ. of Chi. Hosps., No. 02 C 0221, 2003 WL 22757754, at *8

(N.D. Ill. Nov. 20, 2003).

The regulations provide that “[t]he employer shall advise 

an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification 

complete and sufficient.” 29 C.F.R. § 825.305(c).2 If a certification is incomplete or insufficient, the employer must provide the employee an opportunity to cure the deficiency.

E.g., Ridings, 537 F.3d at 768; 29 C.F.R. § 825.305(d). Accord 

Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 579 (6th Cir. 

2007) (recognizing that “other courts will impose [the duty 

to inform the employee of a deficiency in a certification and 

provide a reasonable opportunity to cure] on employers 

when the FMLA certification is merely ‘inadequate,’ rather 

than ‘incomplete’”) (citing Strickland v. Water Works & Sewer 

Bd., 239 F.3d 1199, 1209 n. 12 (11th Cir. 2001); Baldwin–Love v. 

Elec. Data Sys. Corp., 307 F. Supp. 2d 1222, 1234 (M.D. Ala. 

2004)). If the employee fails to provide a complete and sufficient certification, despite the opportunity to cure a deficiency, “the employer may deny the taking of FMLA leave.” 29 

C.F.R. § 825.305(d). Notably, the regulations do not author-

 2 “A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed” and “[a] certification is considered insufficient if the employer 

receives a complete certification, but the information provided is vague, 

ambiguous, or non-responsive.” 29 C.F.R. § 825.305(c).
10 No. 13-3391

ize the employer to deny FMLA leave where the employee 

fails to provide a complete and sufficient certification but is 

not given the opportunity to cure the deficiency.

“The FMLA circumscribes the employer’s right to challenge a physician’s certification that leave is FMLAqualifying.” Stoops, 141 F.3d at 313 (citing 29 U.S.C. § 2613). 

The employer may require that the employee obtain a second opinion regarding information provided in the certification. 29 U.S.C. § 2613(c). If the second opinion differs from 

the opinion in the certification provided by the employee, 

the employer may require that the employee obtain a third 

opinion, which “shall be considered to be final and shall be 

binding on the employer and the employee.” Id. § 2613(d)(2). 

The regulations authorize an employer to request recertification if “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence ...).” 29 C.F.R. § 825.308(c)(2); see also 

Holder v. Ill. Dep’t Corrs., 751 F.3d 486, 494 (7th Cir. 2014)

(noting that the employer could have “immediately ask[ed] 

for more proof of legitimacy” of the need for FMLA leave). 

As part of recertification, “the employer may provide the 

health care provider with a record of the employee’s absence 

pattern and ask the health care provider if the serious health 

condition and need for leave is consistent with such a pattern.” 29 C.F.R. § 825.308(e).

B. Proving Incapacity

Hansen argues that the district court erred in deciding 

that a plaintiff needs expert testimony to prove that he was 

incapacitated each day for which he requested FMLA leave 

due to his serious health condition. Hansen did not identify
No. 13-3391 11

Dr. Post as an expert witness; he is a fact witness only. Hansen has no expert witness for trial.

FMG relies on Caskey v. Colgate-Palmolive Co., 535 F.3d 

585, 591 (7th Cir. 2008), and Haefling v. United Parcel Serv., 

Inc., 169 F.3d 494 (7th Cir. 1999), to support its argument that 

Hansen needed expert testimony to establish entitlement to 

FMLA leave, specifically to prove incapacity on the days at 

issue. But neither case provides such support. Instead, they 

stand for the unsurprising proposition that a plaintiff needs 

some medical evidence to establish a serious health condition. See Caskey, 535 F.3d at 591 (concluding that plaintiff’s 

“general testimony that her condition was serious is insufficient to raise a genuine issue of material fact” as to whether 

she had a serious health condition entitling her to FMLA 

leave); Haefling, 169 F.3d at 500–01 (concluding the evidence 

was insufficient to raise a genuine issue of fact as to whether 

plaintiff suffered from a serious health condition where 

plaintiff had no affidavit from his doctor or any other medical personnel demonstrating the necessity of the treatments 

he allegedly received; plaintiff’s own testimony regarding 

the severity of his condition and the treatment it required 

were insufficient to raise an issue of fact). FMG cites no controlling authority directly on the issue of whether an employee’s initial medical certification is sufficient to make out 

a prima face case for FMLA leave, or whether expert testimony is required to establish incapacity where the employee 

suffers from a chronic condition like depression. Indeed, in 

Haefling, we looked to the plaintiff’s own diary and his deposition testimony in addressing whether he could establish a 

genuine issue of fact as to his incapacity. 169 F.3d at 499–500. 

Thus, Haefling actually supports Hansen’s view that he does 

not need expert testimony to establish incapacity.
12 No. 13-3391

Other circuits have held that lay testimony combined 

with medical testimony raises a genuine issue of material 

fact as to incapacity. See Schaar v. Lehigh Valley Health Servs., 

Inc., 598 F.3d 156, 161 (3d Cir. 2010) (holding that “[s]ome 

medical evidence is still necessary” and that an employee 

can create a genuine issue of material fact as to incapacity 

“through a combination of expert medical and lay testimony”); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148–49 (8th 

Cir. 2001) (holding that plaintiff’s own affidavit testimony 

that she was “too sick to work” and her testimony concerning her conversation with nurses about her condition combined with her medical records created a genuine issue of 

material fact regarding her incapacity). Two other circuits 

have gone further and have held that lay testimony alone is 

sufficient to create a genuine issue as to incapacity; expert 

testimony is not required. Lubke v. City of Arlington, 455 F.3d 

489, 495–96 (5th Cir. 2006) (holding expert testimony was not 

necessary to demonstrate plaintiff’s incapacity); Marchisheck 

v. San Mateo Cnty., 199 F.3d 1068, 1074 (9th Cir. 1999) (holding plaintiff’s declaration that “I just did not and could not 

do anything for four or five days” creates “a disputed issue 

of fact and precludes summary judgment on the issue of ‘incapacity’” notwithstanding medical evidence to the contrary). But see Culpepper v. BlueCross BlueShield of Tenn., 321 F. 

App’x 491, 496–97 (6th Cir. 2009) (holding that the plaintiff’s 

“own subjective testimony that she was too sore from surgery to work” was insufficient to establish that her absences 

were covered by the FMLA where her medical certification 

stated that she would need to be absent from work for two 

episodes of incapacity lasting three days each).

The district court relied on Price v. City of Fort Wayne, 117 

F.3d 1022 (7th Cir. 1997), to support its conclusion that Han-
No. 13-3391 13

sen needed medical testimony to establish incapacity on the 

specific days in question. But Price does not require medical 

testimony to prove incapacity; the issue there was whether 

the plaintiff’s multiple diagnoses gave rise to a serious 

health condition. Id. at 1025. It was undisputed that the 

plaintiff was incapacitated by her multiple illnesses. See id.

Dr. Post’s medical certification establishes that Hansen has a 

serious health condition, and FMG has not contested that 

certification.

Moreover, the regulations addressing “continuing treatment” and “intermittent leave or reduced leave schedules” 

anticipate that the determination whether an employee is 

unable to work due to a serious health condition would not 

necessarily be made by a medical professional. The “continuing treatment” regulation provides that “[a]bsences attributable to incapacity ... [due to a chronic serious health 

condition] qualify for FMLA leave even though the employee ... does not receive treatment from a health care provider 

during the absence.” 29 C.F.R. § 825.115(f). As an example, 

“an employee with asthma may be unable to report for work 

due to the onset of an asthma attack.” Id. Another example: 

“An employee who is pregnant may be unable to report to 

work because of severe morning sickness.” Id. In neither example would the employee necessarily seek treatment from 

a health care provider. The “intermittent leave” regulation 

similarly provides that “[i]ntermittent ... leave may be taken 

for absences where the employee ... is incapacitated or unable to perform the essential functions of the position because 

of a chronic serious health condition ..., even if he or she 

does not receive treatment by a health care provider.” 29 

C.F.R. § 825.202(b)(2). If the employee does not visit a health 

care provider during the flare-up of the chronic condition 
14 No. 13-3391

such as depression, the health care provider would not have

any personal knowledge about the employee’s claimed incapacity that day. There would be no medical testimony about 

the incapacity on that particular day and the only available 

evidence to prove incapacity would be lay testimony. Thus, 

the regulations support the conclusion that incapacity can be 

established by lay testimony and expert medical testimony is 

not required to prove the incapacity.

The district court erred in determining that Hansen was 

required to present expert testimony to prove that his chronic serious health condition rendered him unable to work on 

the days in question. And Hansen has presented medical

documentation—his certification from Dr. Post—on the 

question of incapacity. Even FMG acknowledges that the 

medical certification can constitute evidence that the employee’s absences are FMLA qualifying. See Appellee’s Br. 

32–33.

C. An Estimate Is Just That

FMG requested medical certification from Hansen’s 

health care provider, and Hansen provided it, using the 

form FMG had given to him for that purpose. Dr. Post certified that Hansen has a chronic serious health condition that 

will cause episodic flare-ups, periodically preventing him 

from performing his job functions. The certification set forth 

the date the condition began (October 25, 2010), its probable 

duration (“months”), and relevant medical facts about the 

condition. The certification stated that because of the condition, Hansen was unable to perform one of his job functions: 

he could not concentrate on the task at hand. Dr. Post certified that it was medically necessary for Hansen to be absent 

from work during flare-ups. The form asked for the physi-
No. 13-3391 15

cian’s “best estimates” in answering questions about the frequency or duration of a condition, treatment, etc. In particular, question #8 asked: “Will the condition cause episodic 

flare-ups periodically preventing the employee from performing his/her job functions?” Dr. Post put an “X” next to 

the box indicating “Yes.” The question continued: “Based 

upon the patient’s medical history and your knowledge of 

the medical condition, estimate the frequency of flare-ups 

and the duration of related incapacity that the patient may 

have over the next 6 months ... .” (emphasis added). Dr. Post 

responded, “4 times per 6 months” lasting “2–5 day(s) per 

episode.” The certification form requested an estimate, and 

Dr. Post gave an estimate. Dr. Post’s certification was sufficient to certify Hansen’s need for intermittent leave and 

Hansen’s submission of the certification entitled him to 

FMLA leave. See 29 U.S.C. § 2613(b)(1)–(3), (4)(B) and (6); 29 

C.F.R. § 825.306(a)(7). 

FMG suggests that Dr. Post’s certification constituted 

hearsay. However, a health care provider’s medical certification could be considered a record of a regularly conducted 

activity and thus would be admissible under the business 

records exception to the hearsay rule if the proper foundation were laid. Fed. R. Evid. 803(6). Dr. Post is listed as a 

witness for trial; he can provide the testimony necessary as 

required by Rule 803(6). We have routinely relied on the 

medical certifications of health care providers submitted by 

employees to their employers to establish the employees’ entitlement to FMLA leave. See, e.g., Kauffman, 426 F.3d at 886–

87 (holding physician’s certification and addendum were 

sufficient to certify that employee had serious health condition requiring him to miss more than three days of work and 

vacating district court’s grant of summary judgment to em-
16 No. 13-3391

ployer); Darst v. Interstate Brands Corp., 512 F.3d 903, 911 (7th 

Cir. 2008) (stating that “[the plaintiff’s] only evidence of 

treatment is [his physician’s] Certification”).

Dr. Post’s certification establishes that Hansen has a serious health condition and that this condition periodically 

renders him unable to perform the functions of his job. FMG 

did not challenge the certification or require that Hansen obtain a second opinion. Instead, it granted Hansen FMLA 

leave on the basis of the certification and thus by its actions 

approved the certification. When Hansen’s absences exceeded the frequency of the flare-ups and duration of related incapacity estimated in the certification, FMG did not seek 

recertification, despite its authorization do so under the circumstances. See 29 C.F.R. § 825.308(c)(2) (authorizing recertification if “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence ...)”); see also Holder, 751 F.3d at 494

(noting that the employer could have “immediately ask[ed] 

for more proof of legitimacy” of the need for FMLA leave). 

As part of recertification, FMG could have asked Dr. Post 

whether Hansen’s condition and the need for leave were 

consistent with the frequency and duration of his absences, 

see 29 C.F.R. § 825.308(e), but FMG did not do that either.

FMG argues that Hansen’s entitlement to intermittent 

FMLA leave is limited to the precise frequency and duration 

stated in the certification. But the cited authorities do not 

stand for such a sweeping proposition. See Culpepper, 321 F. 

App’x 491; Harville v. Texas A&M Univ., 833 F. Supp. 2d 645 

(S.D. Tex. 2011); 29 C.F.R. §§ 825.202(b), 825.203, 825.220(c), 

825.301(a); 6 Fed. Reg. 2197 (Jan. 6, 1995). For example, in 

Culpepper, the plaintiff’s physician certified her for two sepa-
No. 13-3391 17

rate three-day periods of intermittent leave, and the plaintiff 

provided only her own testimony that she was unable to 

work beyond those two periods. 321 F. App’x at 493. The 

court noted that the plaintiff “received exactly what her doctor ordered—six days of FMLA leave.” Id. at 496. There was 

no suggestion that the doctor’s certification was an estimate 

of the needed leave; it appears to have been exact, which distinguishes Culpepper from this case. In Harville, the plaintiff 

presented an initial medical certification for episodic leave 

for up to three days per month and then presented a certification for eight days of episodic leave per month; however, 

she was absent from work “all of July, August 1–24, seven 

days in September, fourteen days in October, all of November, and December 1–21.” 833 F. Supp. 2d at 650. The district 

court granted summary judgment for the defendant where 

“the plaintiff’s absences far exceeded the amount of her 

medically permitted FMLA leave.” Id. at 653. Even if Harville

establishes that the medical certification limits the frequency 

and duration of FMLA-qualifying leave, that case involved 

leave that “far exceeded” what was stated in the certification; the plaintiff was absent from work almost all the time. 

Hansen’s absences were not so far in excess of the estimated 

frequency and duration. And none of the other authorities 

cited by FMG establish that the estimated frequency and duration of intermittent leave act as absolute limits on the employee’s entitlement to leave.

Other courts have rejected arguments similar to FMG’s 

“limitations argument.” In Fritz v. Phillips Serv. Indus., Inc., 

555 F. Supp. 2d 820 (E.D. Mich. 2008), for example, the plaintiff had surgery on his knee in 2003 for which he was granted FMLA leave. He claimed that a two day absence in May 

2005 was because of the same “knee condition” for which he 
18 No. 13-3391

was granted FMLA leave two years earlier and argued that 

the employer could not terminate him for those absences. Id.

at 822, 826. The plaintiff’s 2003 FMLA request form stated 

that he would need eight weeks off following surgery; it did 

not refer to any continuing treatment or need for leave beyond that. The court rejected the employer’s attempt to rely 

on the absence of certification for the need for leave beyond 

the eight weeks post-surgery to justify the denial of FMLA 

leave. Id. at 824–25. It decided that “[t]he absence of any certification that Plaintiff would require leave beyond the initial 

eight-week recovery period” did not equate to “an explicit 

certification that Plaintiff did not require any absence from 

work due to his condition.” Id. at 825. In denying summary 

judgment, the court reasoned that the employer was on notice that the plaintiff had a serious health condition related to 

his knee and should have inquired further into his reasons 

for taking leave. Id. at 826. Like the certification in Fritz, Dr. 

Post’s certification did not explicitly certify that Hansen 

would not need leave beyond the estimated frequency or 

duration.

In Sims v. Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d 

1253 (N.D. Cal. 1998), the employee suffered a back injury 

and provided his employer with a medical certification stating that he was unable to work from April 16 through April 

25, 1994, and again from April 26 through May 1, 1994. Yet 

the employee was absent from April 18 through May 3, and 

the last two days of absence were a factor in the decision to 

terminate his employment. The employee also provided a 

certification from a chiropractor that covered all of his absences, but the chiropractor did not qualify as a “health care 

provider” under the FMLA. Id. at 1255–56, 1265. The employer argued that because the last two days of the employ-
No. 13-3391 19

ee’s absence were not excused by a health care provider,

they were not protected by the FMLA and were properly 

counted under its attendance policy. Id. at 1266. The court 

reasoned that if the employer had notified the employee 

“that it considered his certification to be incomplete,” id., 

and had given him a reasonable opportunity to correct the 

deficiency, it might agree. But because the employer never 

informed the employee that his “certification was inadequate in any way,” the court held that the employer could 

not deny leave under the FMLA based on the two-day insufficiency in the certification. Id. Similar to Sims, Hansen’s absences exceeded the frequency of absences predicted in his 

certification, but FMG did not allow him to cure the deficiency before firing him, so it could not deny him FMLA 

leave based on the perceived insufficiency.

Moreover, if the frequency and duration stated in the certification set a limit to the employee’s entitlement to FMLA 

leave, there would be no need for the regulation that authorizes an employer to request recertification where the 

“[c]ircumstances described by the previous certification have 

changed significantly (e.g., the duration or frequency of the absence ...).” 29 C.F.R. § 825.308(c)(2) (emphasis added). This 

regulation, as the district judge recognized, “contemplates 

the precise situation present here where an employee’s frequency of absences exceeds what is described in the initial 

certification... .” Hansen v. Fincantieri Marine Group, LLC, No. 

12-C-032, 2013 WL 2918329, at *4 (E.D. Wis. June 14, 2013).

FMG should have sought recertification when the frequency 

of Hansen’s absences exceeded what was estimated in his 

certification, rather than simply denying him leave. 
20 No. 13-3391

Matrix may have attempted recertification with its fax to 

Dr. Post; but its attempt was improper. An “employer must 

give notice of a requirement for certification each time a certification is required.” 29 C.F.R. § 825.305(a). There is no evidence that Matrix gave Hansen notice of its faxed communication to Dr. Post. And the regulations prevent an employer 

from communicating directly with the employee’s health 

care provider with a few exceptions not applicable here. See

29 C.F.R. § 825.307(a). Matrix erred in contacting Dr. Post directly. Besides, Matrix sought to confirm the prior certification; it did not request certification for the absences that exceeded the estimated frequency and duration. And the fax 

itself was horribly confused and confusing—it sought confirmation of Dr. Post’s response to the question about ongoing treatment rather than the frequency of episodic flare-ups 

and incapacity. 

We reject the argument that the estimates in the certification act as limitations on the frequency and duration of episodes for which an employee may be entitled to intermittent 

leave under the FMLA. The certification requested, and Dr. 

Post provided, his “estimate” of the frequency of the flareups and duration of related incapacity. See 29 C.F.R. 

§ 825.306(a)(7) (requiring a certification for intermittent leave 

to include “an estimate of the frequency and duration of the 

episodes of incapacity”) (emphasis added). As the district 

court correctly stated, “[a]n estimate, by definition is not exact and cannot be treated as a certain and precise schedule.” 

Hansen, 2013 WL 2918329, at *5. If the certified frequency 

and duration were limits on the employee’s entitlement to 

leave, there would be no need to request recertification 

when the employee’s requested leave exceeded the frequency or duration stated in the certification; “[t]he employer 
No. 13-3391 21

could simply deny FMLA leave.” Id. at *6. At trial, Dr. Post 

can testify as a fact witness as to the meaning of his estimates. 

Furthermore, FMG errs in asserting that Dr. Post’s certification, his July 6 fax, and his July 26 letter establish the lack 

of medical necessity for Hansen’s July 2011 absences. None 

of these documents explicitly addresses the July absences. 

While these documents could raise an inference of a lack of 

medical necessity for absences exceeding the estimated frequency, another reasonable inference can be drawn: the 

documents simply do not address the medical necessity of 

the July absences. The record does not show whether Dr. 

Post even knew about the July absences. Nor does it reveal 

whether he was ever asked if those absences were due to 

Hansen’s depression, despite the fact that they exceeded the 

frequency of episodes estimated in the certification. Matrix’s 

July 6 fax to Dr. Post was so confused and confusing that Dr. 

Post’s response thereto does not raise any reasonable inferences. And it is unclear whether his July 26 letter was intended to be prospective only. As noted, FMG could have 

informed Dr. Post of Hansen’s July absences and asked Dr. 

Post if Hansen’s condition and medical need for leave was 

consistent with his absences, but it did not. It appears that 

the district court chose between competing inferences, drawing adverse inferences against Hansen, which was improper 

at the summary judgment stage. See, e.g., Tolan v. Cotton, 134 

S. Ct. 1861, 1863 (2014) (per curiam); see also Orton-Bell, 2014 

WL 3566338, at *4 (at summary judgment, a court “may not 

... choose between competing inferences”). Admittedly, 

Hansen does not have abundant evidence to establish the 

medical necessity of his July 2011 absences; but he does not

need abundant evidence to create a jury question.
22 No. 13-3391

Although the certification does not specifically cover the 

July absences, the certified need for intermittent leave could 

support a jury finding that Hansen’s chronic serious health 

condition rendered him unable to work on the days in question. We find guidance in the Third Circuit’s decision in 

Schaar, 598 F.3d 156, and in Crowell v. Denver Health & Hosp.

Auth., No. 12-cv-00019-LTB-MEH, 2013 WL 788087 (D. Colo. 

March 1, 2013). The issue in Schaar was whether the plaintiff 

was entitled to take FMLA leave because she had a serious 

health condition that involved a period of incapacity of more 

than three days. Id. at 158–59. The plaintiff presented her 

physician’s note that the plaintiff‘s illness prevented her 

from working for two days, and the plaintiff testified that 

she was incapacitated for an additional two days. The court 

concluded that the combination of the physician’s opinion 

and the plaintiff’s lay testimony created a material issue of 

fact as to whether the plaintiff was incapacitated for more 

than three days. Id. at 161. Although the court was addressing whether the plaintiff could establish that she had a serious health condition, its conclusion that the physician’s 

opinion and the plaintiff’s testimony raised a material issue 

of fact as to incapacity applies equally where the defendant 

challenges whether a plaintiff can establish incapacity on 

specific days for which FMLA leave was requested. 

Even more on point is Crowell, where the plaintiff sustained an arm and back injury in an accident and sought intermittent FMLA leave. Her physician completed a medical 

certification stating that the plaintiff would be unable to 

work for a continuous period of time. The certification also 

stated that the “[p]laintiff’s condition would cause ‘episodic 

flare-ups periodically preventing [her] from performing 

[her] job functions’ that could occur up to 7 times a week 
No. 13-3391 23

and last for up to an entire day.” Crowell, 2013 WL 788087, at 

*2. The court determined that the certification could support 

a finding that the plaintiff suffered from a chronic serious 

health condition on the day she was absent from work despite an “arguably inconsistent” certification from the same 

physician that the plaintiff could return to work without restriction until she had shoulder surgery. Id. at *5. The court 

also concluded that the physician’s certification that the 

plaintiff would have “episodic flare-ups periodically preventing [her] from performing [her] job functions” “could 

support a determination that Plaintiff was unable to perform 

one or more of the essential functions of her position” on the 

day she was absent. Id. The plaintiff’s claims proceeded to 

trial; ultimately the court granted the defendant judgment as 

a matter of law upon concluding that the plaintiff had not 

made a timely request for FMLA leave under the defendant’s leave of absence policy. 

The Tenth Circuit affirmed but on different grounds: the 

evidence at trial did not support the claim that the absence 

in question was FMLA-protected. Crowell v. Denver Health & 

Hosp. Auth., --- F. App’x ---, 2014 WL 3608698, at *4-5 (10th 

Cir. July 23, 2014). The trial evidence established a discrepancy between the leave requested by the plaintiff (intermittent) and the leave certified by the physician (continuous), 

and the employer had advised the plaintiff that she needed a 

new medical certification form if intermittent leave was required, but the plaintiff never provided one. Id. at *4. Furthermore, no medical testimony supported the plaintiff’s 

claim that her absence was entitled to intermittent leave under the FMLA. Her physician testified that he did not think 

it was medically necessary for the plaintiff to be absent from 

work because of pain. Id. at *5. He also clarified that alt-
24 No. 13-3391

hough he certified that the plaintiff would have flare-ups of 

pain, he did not think she would be incapacitated because of 

the pain. Id. at *5 n.10. Although the physician’s general testimony about the plaintiff’s ability to work did not specifically address the absence at issue, the court concluded that 

the testimony refuted any reasonable inference that intermittent leave was necessary. Id. at *5. The absence of a medical 

certification supporting the plaintiff’s claim that she was unable to perform her job due to a serious health condition (the 

certification was interpreted to require continuous leave) 

and the absence of evidence that a chronic condition prevented her from working (there was no medical evidence 

linking the plaintiff’s severe chest pain on the day in question with her shoulder injury for which she was granted 

FMLA leave) were other bases on which the court upheld 

the judgment in favor of the defendant. Id. at *5–6. 

Hansen has produced a medical certification that raises a 

material issue of fact as to his incapacity on the days at issue. 

The certification distinguishes this case from those relied on 

by FMG where the employee had no medical evidence supporting the entitlement to FMLA leave. Although Hansen’s 

requested leave exceeds Dr. Post’s estimated frequency and 

duration, as in Schaar where the requested leave exceeded 

the number of days certified, when the certification is combined with Hansen’s own testimony that his depression prevented him from working on the days in question, Hansen 

has enough evidence to raise a material issue of fact that 

would allow a reasonable jury to find in his favor. And as in 

Crowell, Dr. Post’s certification that Hansen would have episodic flare-ups periodically preventing him from performing 

his job functions could support a finding he was unable to 

perform one or more essential functions of his position on 
No. 13-3391 25

the days he was absent. There may not be an abundance of 

evidence as to Hansen’s entitlement to FMLA leave for the 

July 2011 absences, but there is enough to raise a material 

issue of fact. Thus, we reject FMG’s argument that Hansen 

has no medical documentation to substantiate the medical 

necessity of his July 2011 absences; Dr. Post’s certification in 

combination with Hansen’s testimony can do just that.

Hansen’s evidence raises a material issue of fact as to 

whether he was unable to perform the functions of his job 

because of his serious health condition on the days he was 

absent. Although Dr. Post’s certification does not specifically 

cover the July absences, the certified need for intermittent 

leave could support a finding that Hansen’s chronic serious 

health condition rendered him unable to work on the days in 

question. Our decision does not require FMG to go through 

a costly trial merely on Hansen’s own say-so that his depression required him to be absent from work. In addition to his 

own testimony about his incapacity, Hansen has Dr. Post’s

medical certification that he has a serious health condition 

that will cause episodic flare-ups that prevent him from performing his job and make it medically necessary for him to 

be absent from work. Presumably, Dr. Post would testify in 

accordance with his certification. Whether a jury will credit

Hansen’s claims of incapacity due to his depression on the 

July dates remains to be decided. The jury can weigh Hansen’s testimony against the medical certification and any testimony Dr. Post provides that may add to or detract from 

Hansen’s claims, along with all the other evidence, to determine whether Hansen was entitled to FMLA leave for his 

July 2011 absences.
26 No. 13-3391

III. Conclusion

The district court’s grant of summary judgment is 

REVERSED and the case is REMANDED for further proceedings 

consistent with this opinion.