Phillips, Marquita v. Quebecor World RAI ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3744
MARQUITA PHILLIPS,
Plaintiff-Appellant,
v.
QUEBECOR WORLD RAI INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 330—William E. Callahan, Jr., Magistrate Judge.
____________
ARGUED APRIL 14, 2006—DECIDED JUNE 12, 2006
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Before BAUER, ROVNER, and EVANS, Circuit Judges.
BAUER, Circuit Judge. Marquita Phillips sued Quebecor
World RAI, Inc. (Quebecor) for violations of the Family
and Medical Leave Act (FMLA). The magistrate judge
granted summary judgment for Quebecor, finding that
Phillips provided insufficient notice of a serious health
condition. We affirm.
I. Background
Quebecor operates the Brookfield, Wisconsin, printing
facility where Phillips was an employee since 2000. Phillips
was eligible for FMLA leave, which she requested and
2 No. 05-3744
received once in 2003. In her deposition testimony, Phillips
acknowledged that she filled out an “Application for Family
and Medical Leave of Absence” form provided by Quebecor
in order to receive the leave.
The Quebecor World Attendance Policy (attendance
policy) governs employee attendance. Phillips received a
copy of the attendance policy, which provides that an
employee with a continuing record of four to seven charge-
able absences within a twelve-month period is subject to
termination. Categories of absence considered “chargeable”
include late arrivals, early departures, unexplained ab-
sences, and absences related to illness, injury, or non-
qualifying personal reasons.
On August 1, 2003, Phillips was absent due to sickness.
Because it amounted to her sixth chargeable absence within
twelve months, she received a final warning for habitual
absenteeism. From October 1 to October 3, 2003, Phillips
was absent for personal reasons. This absence again gave
Phillips six chargeable absences within twelve months,
which prompted Linda Davis, Quebecor’s Human Resources
Administrative Secretary, to issue another final warning.
The October 10 letter advised Phillips that her “overall
attendance record falls in the range we define as habitual
absenteeism in Section 2.7 of the Policy” and warned that
if she remained “in the range of four to seven chargeable
absences during the next twelve months,” she would be
subject to discharge.
On October 15, Phillips reported to work, told her super-
visor, Ron Lockerman, that she was “sick,” and left early.
Lockerman did not inquire about her sickness or request
medical documentation. Phillips submitted a form to Davis
indicating that she was seen at the Comprehensive Health
Center that day and should be off work from October 15
until October 19. The three days she then took off work
resulted in another chargeable absence. A month later,
No. 05-3744 3
Phillips received half of a chargeable absence for arriving
late to work. Less than two weeks after that, she received
another half of a chargeable absence for the same reason.
On February 11, 2004, Phillips was again absent from
work, was assessed another chargeable absence, and was
terminated. Phillips was later diagnosed with a head tumor
and sued under the FMLA. The magistrate judge granted
Quebecor’s motion for summary judgment. Phillips ap-
pealed.
II. Discussion
Phillips claims that her termination violated the FMLA
because the three-day absence beginning on October 15
should not have been considered chargeable. FMLA-
qualifying leave may not be counted against an employee
under an employer’s “no fault” attendance policy. 29 C.F.R.
§ 825.220(c). According to Phillips, she provided sufficient
information to inform Quebecor that her absence was
FMLA-qualifying and thus to trigger Quebecor’s duty to
inquire into the nature of the medical reason for the
absence. The magistrate judge, she claims, erred in grant-
ing summary judgment for Quebecor because a genuine
issue of material fact existed regarding the sufficiency of
the notice. We review the district court’s grant of summary
judgment de novo. Ogborn v. United Food & Commercial
Workers Union, Local No. 881, 305 F.3d 763, 767 (7th Cir.
2002). Summary judgment is appropriate when the record
reveals that “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c).
The FMLA grants eligible employees the right to take
leave because of a “serious health condition” that renders
them unable to perform the functions of their position. 29
U.S.C. § 2612(a)(1)(D). The statute defines “serious health
condition” as including “an illness . . . that involves . . .
4 No. 05-3744
continuing treatment by a health care provider.” 29 U.S.C.
§ 2611(11)(B). Regulations promulgated by the Secretary of
Labor in turn provide a definition of “continuing treatment
by a health care provider” that includes, in relevant part:
A period of incapacity (i.e., inability to work . . .) of
more than three consecutive calendar days, and any
subsequent treatment or period of incapacity relating to
the same condition, that also involves:
(A) Treatment two or more times by a health care
provider . . . ; or
(B) Treatment by a health care provider on at least
one occasion which results in a regimen of continu-
ing treatment under the supervision of the health
care provider.
29 C.F.R. § 825.114(a)(2)(i).
An employee provides adequate notice to the employer by
stating “a qualifying reason for the needed leave.” 29 C.F.R.
§ 825.208(a)(2). After an employee provides the requisite
notice, it becomes incumbent upon the employer “to desig-
nate leave, paid, or unpaid, as FMLA-qualifying.” 29 C.F.R.
§ 825.208(a). If “the employer does not have sufficient
information about the reason for an employee’s use of paid
leave, the employer should inquire further of the employee”
as necessary to designate the leave, id., and may “obtain
any additional required information through informal
means.” 29 C.F.R. § 825.303(b). If the required notice is not
given, however, the employer can deny leave even if the
employee has a serious health condition. Aubuchon v. Knauf
Fiberglass, GMBH, 359 F.3d 950, 951 (7th Cir. 2004). This
appeal turns on the adequacy of the notice Phillips pro-
vided.
When providing notice of leave, an employee is not
required to “expressly assert rights under the FMLA or
even mention the FMLA, but may only state that leave is
needed.” 29 C.F.R. § 825.303(b). Employers, however, are
No. 05-3744 5
“entitled to the sort of notice that will inform them . . . that
the FMLA may apply.” Collins v. NTN-Bower Corp., 272
F.3d 1006, 1008 (7th Cir. 2001). For leave to be FMLA-
qualifying, it must first result from a serious health condi-
tion. Stoops v. One Call Commc’ns, Inc., 141 F.3d 309, 313
(7th Cir. 1998). Here, Phillips claims that she had “an
illness . . . that involves . . . continuing treatment by a
health care provider,” which qualifies as a serious health
condition under the statute. 29 U.S.C. § 2611(11)(B). She
attempts to demonstrate that she was undergoing “continu-
ing treatment,” as defined in 29 C.F.R. § 825.114(a)(2)(i),
with two arguments.
First, Phillips claims that the time period of her absence
alone was sufficient to establish that she was undergoing
“continuing treatment.” Even if the employee has a qualify-
ing period of incapacity, the regulation still requires it to be
accompanied by either “treatment two or more times by a
health care provider” or treatment resulting “in a regime of
continuing treatment under the supervision of the health
care provider.” 29 C.F.R. § 825.114(a)(2)(i). The argument
that the period of absence alone made for adequate notice,
then, directly contravenes the plain meaning of the regula-
tion.
Second, Phillips claims that she provided sufficient notice
of her “continuing treatment” because the doctor prescribed
medication on October 15. Under the regulations, a course
of prescription medication qualifies as “a regime of continu-
ing treatment.” 29 C.F.R. § 825.114(b). In her deposition,
Phillips testified that the doctor gave her “antibiotics and
medicine.” Even if this testimony is taken is true, however,
no evidence suggests that she informed Quebecor of the
prescription. Under the regulations, employees should
provide notice “within no more than one or two working
days of learning of the need for leave, except in extraordi-
nary circumstances where such notice is not feasible.” 29
C.F.R. § 825.303(a). Because Phillips does not argue that
6 No. 05-3744
extraordinary circumstances existed, she was bound by the
time constraint. Yet it is undisputed that Phillips neither
notified her supervisor nor submitted documentation
regarding the medication within “one or two working days”
of the date that she learned of the need for leave, October
15. Information concerning the prescription first surfaced at
her deposition. As a result, Phillips failed to give timely
notice that she was undergoing “continuing treatment.” See
Brenneman v. MedCentral Health System, 366 F.3d 412, 428
n.17 (6th Cir. 2004) (holding that plaintiff’s later deposition
testimony that the doctor prescribed medication was
insufficient to provide notice of “a regimen of continuing
treatment”).
Quebecor also had no notice of the head tumor because
Phillips herself did not discover it until months after her
termination. The only information available to Quebecor
at the relevant time consisted of the form Phillips submit-
ted, stating that she had been seen at the health center,
and her explanation that she was leaving because she was
“sick.” An employee’s reference to being “sick,” however,
does “not suggest to the employer that the medical condition
might be serious or that the FMLA otherwise could
be applicable.” Collins, 272 F.3d at 1009 (citing Price v.
Ft. Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997)). Phillips
claims that the doctor’s note triggered Quebecor’s duty
of inquiry under Kauffman v. Fed. Express Corp., 426
F.3d 880, 886-87 (7th Cir. 2005). After an employee re-
quests leave for a serious health condition, the employer
may request certification by the employee’s health care
provider. 29 C.F.R. § 825.305(a). If the certification provided
is incomplete, the employer must then afford the employee
“a reasonable opportunity to cure” the deficiency. 29 C.F.R.
§ 825.305(d). These regulations, however, address the
sufficiency of the doctor’s certification rather than the
sufficiency of the notice provided by the employee in the
first instance.
No. 05-3744 7
Requiring employers to determine whether leave is
covered by the FMLA every time an employee was absent
because of sickness would impose “a substantial and largely
wasted investigative burden on employers.” Aubuchon, 359
F.3d at 953. Phillips’ request for leave coupled with a
mention of her sickness did not “place the employer on
notice of a probable basis for FMLA leave” because she
failed to convey any information regarding the nature of her
medical problem. Id. As a matter of law, the information
available to Quebecor did not require further inquiry. See
Price, 117 F.3d at 1026.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-12-06