### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3391 J AMES G. H ANSEN , Plaintiff

- Appellant
,

v.

F INCANTIERI M ARINE G ROUP , 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

.

____________________
A RGUED M AY 19, 2014

— D ECIDED A UGUST 18, 2014

____________________

Before R OVNER , W ILLIAMS , and T INDER , Circuit Judges

. T INDER , Circuit Judge

. James Hansen sued his former e mployer, Marinette Marine Corporation, and its parent co mpany, Fincantieri Marine Group, LLC (collectively FMG) in fede ral 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 exerci se of rights under the Act.2 No. 13

- 3391

Th e district court grant ed 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 es se ntial 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 . B ecause the law does not require a plaintiff to present expert
t estimony 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 procee dings 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. A n 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 ded ucted 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 a dministrator, Matrix Absence Mana gement, Inc., administer s the attendance policy. As of May 2, 2011, Hansen had nine attendance points. H e 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: depressio n. On May 11, FMG received a medical certification from Hansen’s phys ician, Dr. Michael Post, stating that Hansen had a condition that would cause episodic flare

- ups periodically preventingNo. 13

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him from performing his job functions. The physician wrote that Ha nsen “could not concentrate on [the] task at hand.” Dr. Post indicated that the condition commenced in October 2010 and was exa cerbated on May 3, 2011. He stated that the probable duration of the condition was “months” and est imated 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 absen ces 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 th ose absences and incurred no attendance points for them . Hansen next requested FMLA leave for June 22 and 27

. Matrix initially d enied 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 f ax, indicating that the July 1 absence “is out of his frequency and dura tion. Please confirm item #7.” Item #7 on the med ical certification form asks about the employee’s need to a ttend follow

- up appointments or work part

- time or on a r educed schedule beca use 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 a s 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 request4 No. 13

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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 ep isode)

. Matrix denied these requests, indicating that Hansen’s “[f]requency [was] exceeded.” Hansen therefore incurred one attendance point for each day he was abs ent. 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 violat ing its attendance policy. FMG e xplained 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, o n July 26, Dr. Post sent FMG and Matrix a letter, indicating that he was modifying his original certific ation : he was increasing the period of incapacity “ to cover the entire yea r 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 ep isodes] to once a month for a duration of 2

– 5 days per ep isode.” The letter d id not mention o r 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 i nterference and retaliation. The retaliation claim stands orNo. 13

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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 e xceeded the estimated frequency in Dr. Post’s medical certif ication. The district court denied FMG’s motion, noting that it appeared Hansen was taking off more time than was med ically necessary, but it was not so clear as to justify summary judgment. Shortly before trial, however, FMG sought reco nsideration, arguing that Hansen needed expert medical te stimony to establish that he was in capacitated due to his ser ious health condition during the July 2011 absences and that he had none. The court agreed, concluding that expert med ical testimony was required to prove that Hansen’s serious health condition rendered him unable to perform the f un ctions of his position during the absences for which he sought FMLA leave. It therefore decided that Hansen could not e stablish entitlement to FMLA leave and granted FMG su mmary judgment on all claims. Hansen appealed.
II. Discussion On appeal, Hansen a sks 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 pr esent expert testimony at trial to prove that he was incapac itated 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 a bsences, he can establish a prima face case of FMLA retaliation : It is u ndisputed that h e incurred attendance points for those absences, and those poin ts led to the termination of his employment.6 No. 13

- 3391

FMLA discrimination and retaliation without an expert wi tness or medical docum entation 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 th at 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 f or 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 , vie wing 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) . Su mmary 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. (quot ation 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 non

moving party.” Id. “ A ‘court may not ... choose between competing inferences or balance the relative weight of co nflicting evidence; it must view all the evidence in the record in the light most favorable to the non

- moving pa rty and r esolve 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, 7 73 (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 per iod if he is unable to perform the functions of his position b ecause of a serious health condition. 29 U.S.C. § 2612(a)(1)(D)

. An employer is prohi bited 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 i t is unlawful for an e mployer to retaliate against an empl oyee who exercises or a ttempts to exercise FMLA rights. Id. at 781 (citing 29 U.S.C. §2615(a)(2) ). T o prevail o n his interference claim , Hansen must show, among other things, that he wa s 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 d efined in part as “ an illness
, ... impairment, or

... mental co ndition that involves

... continuing treatment by a healt h care provider, ” 29 U.S.C. § 2611(11)(B) , and a “period of incapac ity,” 29 C.F.R. 825.115 (2009)

. “Incapacity” means the “ inabi lity 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 an8 No. 13

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employee is entitled to leave. See Ames , 629 F.3d at 669. While “incapacity” and “serious health condition” are inte rrelated, as the definitions make clear, they are not inte rchangeable terms.

S ome serious health conditions may be chronic, causing episodic rath er than a continuous incapacity. S toops 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) ) ; se e also 29 C.F.R. § 825.202(b) (“For intermittent leave ... because of one’s own serious health condition, ... there must be a med ical need for leave ... .” ). When an employee initially requests FMLA leave , the employer may take the employee at his word and grant the

re quest, or “ may request certifi cation by the employee’s health care provider.” Kauffman v. Fed. Exp. Corp. , 426 F.3d 880, 886 (7th Cir. 2005) ( citing 29 U.S.C. § 2613(a) ). If certif ication is requested, the employee must provide it “in a tim ely manner.” 29 U .S.C. § 2613(a) ; see 29 C.F.R. § 825.305(b)

. T he 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 condit ion , “ a statement that the employee is unable to perform the functions of [his] position, ... a stat ement 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. Rive rside 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 theNo. 13

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episodes of incapacity” (emphasis added))

. The regulations suggest that “the employee’s submission of a complete me dical certification is sufficient to trigger FMLA protection u nless 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 regulation s provide that “[t]he employer shall advise an employee whenever the employer finds a certification i ncomplete or insufficient, and shall state in writing what a dditional information is necessary to make the certi fication complete and sufficient.” 29 C.F.R. § 825.305(c)

. 2 If a certif ic a tion is incomplete or insufficient
, the employer must pr ovide the employee an opportunity to cure the deficiency. E.g.
, Ri d ings , 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) ( re c ogniz ing 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 certificat ion is merely ‘ inadequate
, ’ rather than ‘ i n complete ’”) (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 suff icient certification, despite the opportunity to cure a deficie ncy, “the employer may deny the taking of FMLA leave.” 29 C.F.R. § 825.305(d)

. Notably, the regulations do not autho r-

2 “A certification is considered incomplete if the employer receives a ce rtification, but one or more of the applicable entries have not been co mpleted” and “[a] c ertification 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 emp loyee fails to provide a complete and sufficient certification but is not given the opportunity to cure the deficiency.

“ T he FMLA circumscribes the employer’s right to cha llenge a physician’ s certification that leave is FMLA

qualifying.” Stoops , 141 F.3d a t 313 (citing 29 U.S.C. § 2613 ). The employer may require that the employee obtain a se cond opinion regarding informatio n provided in the certific ation. 29 U.S.C. § 2613(c) . If the second opinion differs from the opinion in the certification provided by th e 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 r egulations authorize an employer to request recertific ation if “[c]ircumstances described by the previous certific ation have changed significantly (e.g., the duration or fr equency 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 prov ider if the serious health condition and need for leave is consistent with such a pa ttern.” 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 identifyNo. 13

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Dr. Post as an expert witness ; he is a fact witness only. Ha nsen 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 medi cal evidence to establish a serious health cond ition. See Caskey , 535 F.3d at 591 ( concluding that plaintiff’s “general testimony that her condition was serious is insuff icient to raise a genuine issue of material fact” as to whether she had a serious heal th 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 do ctor or any other med ical 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 co ntrolling authority directly on the issue of whether an e mployee’s initial medical certification is sufficient to make out a prima face case for FMLA leave, or whether expert test imony is required to establish incapacity where the employee suffers fr om a chronic condition like depression. Indeed, in Haefling , we looked to the plaintiff’s own diary and his de position testimony in addressing whether he could establish a genuine issue of fact as to his incapacity. 169 F.3d at 499

– 500

. Thus, Haefling actu ally supports Hansen’s view that he does not need expert testimony to establish incapacity.12 No. 13

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Other circuits have held that lay testimony combined with medical testimony raise s 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 testim ony”); Rankin v. Seagate Tech s ., 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 concer ning her conversation with nurses about her condition co mbined with her medica l records created a genuine issue of material fact regarding her inc a pacity). Two other circuits have gone further and have held that lay testimony alone is sufficient to create a genuine i s sue as to incapacity; expert testim ony is not required. Lubke v. City of Arlington , 455 F.3d 489, 495

– 96 (5th Cir. 2006) (hol d ing expert testimony was not necessary to demonstrate plaintiff’s incapacity); Marchisheck v. San Mateo Cnty. , 199 F.3d 1068, 1074 (9th Cir. 1999) (hol ding 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 su m mary judgment on the issue of ‘i ncapacity’” notwithstanding m edical evidence to the contr ary )

. B ut see Culpepper v. Blu e C ross Blue S hield 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 su rgery to work” was insufficient to establish that her absences were covered by the FMLA where her medic al 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 Ha n-No. 13

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sen neede d medical testimony to establish incapacity o n 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 1 025 . 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 trea tment” 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 “co ntin u ing treatment ” regulation provides that “[a]bsences a ttributable to incapacity ... [due to a chronic ser i ous health condition] qualify for FMLA leave even though the emplo yee ... 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.” I d. In neither e xample 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 un able t o 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 dur ing the flare

- up of the chronic condition14 No. 13

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such as depression, the health care provider would not have any personal knowledge about the employee’s claimed inc apacity that day. T here would be no medical testimony about the incapacity on th at particular day a nd the only available evidence to prove incapacity would be lay testimony

. Th us, th e regulations support the conclusion that incapacity can be
est ablished by lay testimony and expert medical testimony is not required to prove the incapacity

. The district court erred in determin ing that Hansen was required to present expert testimony to prove that his chro nic 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 e mployee’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 cert ified 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 beca use of the cond ition, Hansen wa s unable to perform one of his job functions: he could not concentrate on the task at hand. Dr. Post cert ified that it was medically necessary for Hansen to be absent from work during flare

- ups. The form asked for the phys i-No. 13

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ci an’s “best estimates” in answering questions about the fr equency or duration of a condition, treatment, etc. In partic ular, question #8 asked: “Will the condition cause episodic flare

- ups periodically preventing the employee from pe rforming his/her job fun ctions?” 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 th e 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 suff icien t 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 he arsay. However, a health care provider’s medical certific ation c ould 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 found ation 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)

. W e have routinely relied on the medical certifications of health care providers submitted by employees to their employers to establi sh the employees’ e ntitlement to FMLA leave. See, e.g. , Kauffman , 426 F.3d at 886

– 87 (hold ing physician’s certification and addendum were sufficient to certify that employee had serious health cond ition requiring him to miss more than three days of work and vacating district court’s grant of summary judgment to e m-16 No. 13

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ployer); Darst v. Interstate Brand s Corp. , 512 F.3d 903, 911 (7th Cir. 2008) (stating that “[the plaintiff’s] onl y evidence of treatment is [his physician’s] Certification”).
Dr. Post’s certification establishes that Hansen has a ser ious health condition and that this condition periodicall y renders him unab le to perform the functions of his job. FMG did not challenge the certification or require that Hansen o btain a second opinion

. I nstead , it granted Hansen FMLA leave on the basis of the certification and thus by its actions approved the c ertification

. When Hansen’s absences excee ded the frequency of the flare

- ups and duration of related i ncapacity estimated in the certification, FMG did not seek recertification
, despite its authorization do so under the ci rcumstances

. See 29 C.F.R. § 825.3 08 (c)(2) ( authorizing recert ification if “[c]ircumstances described by the previous certif ication have changed significantly (e.g., the duration or fr equency 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 frequ ency 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 autho rities 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 sep a-No. 13

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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 th at the plaintiff “received exactly what her do ctor 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 di stinguishes Culpepper from t his case. In Harville , the plaintiff presented an initia l medical certification for episodic leave for up to three days per month and then presented a certif ication 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 Nove mber, and December 1

– 21.” 833 F. Supp. 2d at 650 . The district
court grant ed summary judgment for the defendant where “the plaintiff’s absences far exceeded the amount of her medic ally 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 certific ation; 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 d uration of intermittent leave act as absolute limits on the e mployee’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 plai ntiff had surgery on his knee in 2003 for which he was gran ted FMLA leave. He claimed that a two day absence in May 2005 was because of the same “knee condition” for which he18 No. 13

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was granted FMLA leave two years earlier and argued that the employer could not terminate him for thos e 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 b eyond that. The court rejected the employer’s attempt to rely on the absence of certificat ion 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 ce rtification 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 n otice 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 dura tion.
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 sta ting that he was unable to work from April 16 through April 25, 1994, an d 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 t hat covered all of his a bsences, but the chiropractor did not qualify as a “health care provider” under the FMLA. Id. at 1255

– 56, 1265 . The e mployer argued that because the last two days of the emplo y-No. 13

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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 rea sonable opportunity to correct the deficiency, it might agree. But because the employer never informed the employee that his “certification was inad equate in any way,” the court held that the employer could not deny leave under the FMLA based on the two

- da y insu fficiency in the certification. Id. Similar to Sims , Hansen’s a bsences exceeded the frequency of absences predicted in his certification, but FMG did not allow him to cure the def iciency 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 ce rtification set a limit to the employee’s entitlement to FMLA leave, there would be no need for the regulation that autho rizes an employer to request recertification whe re the “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the a bsence ...).” 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 fr equency 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 sou ght recertification when the frequency of Hansen’s absences exceeded what was estimated in his certification
, rather than simply denying him leave.20 No. 13

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Matrix may have attempted recertification with its fax to Dr. Post; but its attempt was improper. An “emplo yer must give notice of a requirement for certification each time a ce rtification is required.” 29 C.F.R. § 825.305(a) . The re is no ev idence that Matrix gave Hansen notice of its faxed commun ication 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 d irectly. Besides, Matrix sought to confirm the prior certific ation; it did not requ est certification for the absences that e xceeded the estimated frequency and duration. And the fax itself was horribly confused and confusing

— it sought co nfirmation of Dr. Post’s response to the question about ong oing treatment rather than the frequency of epis odic fla re

- ups and incapacity. We reject the argument that the estimates in the certific ation act as limit ations on the frequency and duration of ep isodes 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 flare

ups 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 frequen cy and duration of the episodes of incapacity ” ) (emphasis added). As the district court correctly stated, “[a]n estimate, by definition is not e xact 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 freque ncy or duration stated in the certification; “[t]he employerNo. 13

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could simply de ny FMLA leave.” Id. at *6. At trial, Dr. Post can testify as a fact witness as to the meaning of his est imates. Furthermore, FMG errs in asserting that Dr. Post’s certif ication, his July 6 fax, and his July 26 letter establish the lack of medical ne cessi ty for Hansen’s July 2011 absences. None of these documents explicitly address es the July absences. While these documents could raise an inference of a lack of medical ne cessity for absences exceeding the estimated fr equency, another reasonable inference c an be drawn: the documents simply do not address the medical necessity of the July absences. T he 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 de pression, 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 infe rences. A nd it is uncle ar whether his July 26 letter was i ntended 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, dra wing 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 , 20 14 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 ; b ut he does not need abundant evidence to create a jury question.22 No. 13

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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 que stion. 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 pla intiff 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 work ing 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 pl aintiff was incapacitated for more than three days. Id. at 161 . Although the court was addres sing whether the plaintiff could establish that she had a ser ious health condition, its conclusion that the physician’s opinion and the plaintiff’s testimony raise d 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 su stained an ar m and back injury in an accident and sought i ntermittent 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 c ondition would cause ‘episodic flare

- ups periodically preventing [her] from performing [her] job functions’ that could occur up to 7 times a weekNo. 13

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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 d espite an “arguably inconsistent” certification from the same physician that the plaintiff could return to work without r estri ction 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 pr eventing [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 t hat the plaintiff had not made a timely request for FMLA leave under the defen dant’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

- protec ted. 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 discre pancy between the leave requested by the plaintiff (intermi ttent) and the leave certified by the physi cian (continuous), and the employer had advised the plaintiff that she needed a new medical certification form if intermittent leave was r equired, but the plaintiff never provided one. Id. at *4. Fu rthermore, no medical testimony supported the plaintiff’s claim that her absence was entitled to intermittent leave u nder 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 al t-24 No. 13

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hough he certi fied 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 te stimony about the plaintiff’s ability to work did not specif ica l ly address the absence at issue, the court concluded that the testimony refuted any reasonable inference that intermi ttent leave was necessary. Id. at *5. The absence of a medical certification supporting the plaintiff’s claim that she was u nable to perform her job due to a ser ious health condition (the certification was interpreted to require continuous leave) and the absence of evidence that a chronic condition pr evented her from working (there was no medical evidence linking the plaintiff’s severe chest pain on the day in que stion 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 su pporting the entitlement to FMLA leave. Although Hansen’s requested leave exceeds Dr. Post’s estimat ed frequency and duration, as in Schaar where the requested leave exceeded the number of days certified, when the certification is co mbined with Hansen’s own testimony that his depression pr evented him from working on the days in question, Hansen has enoug h 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 ep isodic 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 onNo. 13

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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 rais e 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 function s 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 requir e FMG to go through a costly trial merely on Hansen’s own say

- so that his depre ssion 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 fr om pe rforming his job and make it medically necessary for him to be absent from work. P resumably, 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

. T he jury can weigh Ha nsen’s testimony against the medical certification and any te stimony Dr. Post provide s that may add to or detract from Hansen’s claims , along with all the other evidence, to dete rmine whether Hansen was entitled to FMLA leave for his July 2011 absences

.26 No. 13

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III. Conclusion The district court’s grant of summary judgment is R EVERSED and the case is R EMANDED for further proceedings consistent with this opinion.