Case: 09-40887 Document: 00511191752 Page: 1 Date Filed: 08/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 2, 2010
No. 09-40887 Lyle W. Cayce
Clerk
SHAUNA J. SAENZ,
Plaintiff - Appellant
v.
HARLINGEN MEDICAL CENTER, L.P.; MEDCATH INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before D EMOSS, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Appellant Shauna Saenz (“Saenz”) appeals the district court’s grant of
summary judgment on her Family Medical Leave Act (“FMLA”) claims against
Harlingen Medical Center (“Harlingen”). Saenz contends that the district court
erred when it granted summary judgment on the grounds that Saenz failed to
comply with Harlingen’s in-house FMLA notice procedure. Although this is a
close question, we agree that the district court erred when it held Saenz to
Harlingen’s heightened in-house procedure, and, further, we conclude that Saenz
provided the minimum required notice under FMLA’s default requirements.
Accordingly, we REVERSE the judgment of the district court and REMAND.
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I. FACTUAL & PROCEDURAL BACKGROUND
The court must view the facts developed below in the light most favorable
to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283,
285 (5th Cir. 2006). Saenz was hired by Harlingen on December 31, 2003. In
June 2006, Saenz was diagnosed with partial complex epileptic seizures. Saenz’s
seizures cause her to lose consciousness and, hence, become unable to perform
her duties. In light of her condition, Saenz requested intermittent FMLA leave
for her seizure condition. Harlingen, by way of its third-party administrator,
The Hartford, granted Saenz’s request in a letter dated August 26, 2006.
The letter informed Saenz that she was approved for intermittent leave
“for a serious medical condition” for the period from July 24, 2006 to July 24,
2007. The letter also stated that Saenz had to contact Harlingen by calling The
Hartford no later than two days after each time she took leave pursuant to her
intermittent leave request. The letter warned that failure to provide the
necessary notice could result in the loss of her protection under the FMLA.
Saenz availed herself of this grant of intermittent leave nine times
between July 24, 2006 and December 26, 2006. In each instance, she properly
sought and received approval for her leave within the prescribed period and
received an approval notice. All of the correspondence approving her various
requests for leave included the following warning: “Please remember that it is
your obligation to contact The Hartford no later than 2 days after your leave
date to report each date and time that you are absent from work relating to your
intermittent [FMLA leave].” Saenz’s supervisor, Amy Flores (“Flores”), testified
that she personally informed Saenz every time Saenz called-in sick that Saenz
needed to indicate whether her absence was related to her FMLA-qualifying
condition and that Saenz needed to contact The Hartford.
On December 25 and 26, 2006, Saenz missed work due to her seizure
condition. Saenz promptly contacted The Hartford, reported her FMLA-related
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absences, and received an approval notice shortly thereafter. Saenz again
missed work on December 29-31 and January 3-4. The circumstances of this
bout of illness differed significantly from the seizure issues causing Saenz’s
absence only a week before. On December 28, 2006, Rhonda Galloway
(“Galloway”), Saenz’s mother, found Saenz hallucinating and disoriented at her
house. Galloway determined that Saenz could not work that day and contacted
Saenz’s supervisor, Flores. Galloway told Flores about Saenz’s symptoms and
that she would not be able to work. Flores asked Galloway to call House
Supervisor Debbie Morturi (“Morturi”) and advise her of Saenz’s absence. Flores
then removed Saenz from the work schedule and informed Saenz’s supervisor
that Saenz would not be reporting for work.
Per Flores’s request, Galloway contacted Morturi. Morturi recommended
that Galloway take Saenz to Harlingen’s emergency room. Galloway then
brought Saenz to the hospital and reported her condition to the doctors on duty.
Notably, Morturi personally came and visited Saenz while she was in the
emergency room.
A psychiatrist was brought in to meet with Galloway and Saenz. During
that meeting, the psychiatrist recommended that Saenz be transferred to the
McAllen Behavioral Center for evaluation and treatment. Due to Saenz’s
incapacity, Galloway sought and received a court order permitting the transfer.
Saenz testified that she has little recollection of the events of December 28 and
29. After three days, Saenz was released from the McAllen Behavioral Center.
She was prescribed several medications and instructed to seek additional
evaluation and treatment at another facility, Tropical Texas, as soon as she
could arrange an appointment. She went to her mother’s home and resided
there in her care until at least January 2.
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On the day of Saenz’s discharge, Galloway again contacted Flores.1
Galloway told Flores about Saenz’s treatment at the Harlingen emergency room
and McAllen Behavioral Center.2 Galloway also informed Flores that Saenz
needed to be taken off the schedule for a while, but she could not tell Flores
when Saenz would be able to work again. Flores reminded Galloway that Saenz
was required to contact The Hartford, and she asked Galloway to have Saenz
contact her as soon as she was able. Flores then removed Saenz from the work
schedule for the time period of December 10, 2006 through January 6, 2007.
Flores wrote an “S” on the schedule where Saenz would have been required to
work to indicate Saenz was sick.
Also on December 31, 2006, Flores received an email sent from Saenz’s
work email address requesting paid days off for December 25 and 26, 2006. The
reason for the request stated that Saenz had been in the hospital. Saenz’s
counsel conceded at oral argument that Saenz was the originator of the
December 31 email. Flores attempted to contact Saenz by telephone following
her receipt of the email on at least two separate occasions, but she was unable
to reach her.
1
The testimony conflicts as to whether Galloway contacted Flores or Flores contacted
Galloway. The identity of the initiating party is irrelevant to any of the issues before the
court.
2
The substance of the information communicated to Flores on December 31 is also
disputed. In its briefing, Harlingen claims that Galloway merely told Flores that Saenz would
be absent “for some unknown length of time for some unknown reason.” Galloway’s testimony
is ambiguous and could be construed in this way. Nonetheless, Flores affirmatively testified
that Galloway told her that Saenz had been hospitalized due to the symptoms she described
in their December 28 phone conversation. She also testified that Galloway told her that Saenz
“had been sent to another hospital” for additional treatment. As all disputed facts must be
resolved in favor of the non-moving party, we are required to assume that Galloway
communicated the notice-supporting information described by Flores rather than the less
detailed information described by Galloway.
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Some time between January 7 and January 9, Saenz went to meet with a
psychiatrist at Tropical Texas.3 She was diagnosed with bipolar disorder and
depression. In total, she was absent from work on December 29, 30, and 31,
2006, as well as January 3 and 4, 2007, due to this second illness.
Saenz called The Hartford regarding her absences on January 9, 2007.
During that call, she told The Hartford about her diagnosis for bipolar disorder
and depression and her stay at the McAllen Behavior Center. Saenz then
requested approval for intermittent FMLA leave for her newly diagnosed
condition. By letter dated January 18, 2007, The Hartford began processing a
new request for intermittent leave on Saenz’s behalf and requested the
submission of medical certification documents. The Hartford processed her
request in the same way it had addressed her seizure-related request six months
earlier.
Saenz also received a letter from Harlingen dated January 18, 2007. In
it, Harlingen informed Saenz she was “being involuntarily terminated from
Harlingen Medical Center effective immediately” due to her non-FMLA approved
absences. The letter explained that Saenz had been required to contact The
Hartford on January 2, 2007—two days following her release. After her
termination, Saenz made no effort to furnish the medical certification
documentation requested by The Hartford in its January 18 letter.
Saenz sued Harlingen and Medcath Incorporated (“Medcath”) in state
court; the defendants removed the case to federal court and then moved for
summary judgment. In an order dated July 31, 2009, the district court granted
3
The exact date of Saenz’s follow-up appointment is unclear from the record. Galloway
testified that she was uncertain as to the date of Saenz’s appointment and that it could have
been anywhere from seven to ten days after her release from McAllen Behavioral Center.
When asked if the doctor’s visit was on January 7, Galloway testified: “I can’t be sure on the
date.” As such, we decline to assume the appointment took place on January 7 as suggested
by both Harlingen and the district court.
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the motion for summary judgment as to Medcath on the grounds that Saenz
failed to establish a genuine issue of material fact as to whether Medcath was
a covered employer under the FMLA. The July 31 order expressly held over all
questions relating to Harlingen to be addressed in a subsequent order after
additional briefing. In an order dated August 3, 2009, the district court granted
summary judgment as to Harlingen on all remaining claims. Saenz timely filed
her notice of appeal on August 27, 2009.4
II. STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo, applying the same
standard as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th
Cir. 2006). The inquiry “is limited to the summary judgment record before the
trial court.” Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir.
2009). The Court must view the evidence in the light most favorable to the
non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986), and the movant has the burden of showing this court that
summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Summary judgment is appropriate where the competent summary
judgment evidence demonstrates that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Bolton, 472
F.3d at 263; see Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if
a reasonable jury could enter a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
4
We note that Harlingen originally claimed that we lack jurisdiction to hear this appeal
on the grounds that Saenz’s notice of appeal was substantively deficient. At oral argument,
Harlingen’s counsel conceded that it was not prejudiced by the technical deficiencies in Saenz’s
notice of appeal and that its challenge to our jurisdiction based on that notice was not well-
grounded.
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III. DISCUSSION
The instant case presents two interrelated issues. First, we must consider
whether the district court erred when it relied upon our decision in Greenwell v.
State Farm Mut. Auto. Ins. Co., 486 F.3d 840 (5th Cir. 2007), to conclude that
Saenz was required to comply with Harlingen’s internally-created heightened
FMLA notice requirements. Second, dependent upon the outcome of that
inquiry, we must decide whether Saenz provided adequate notice in keeping
with Harligen’s procedures or the more relaxed default FMLA standard. We
address each issue in turn.5
A. Whether the district court erred in its conclusion that Saenz was required to
comply with Harlingen’s in-house FMLA procedures
Citing Saenz’s nine prior uses of FMLA leave, the district court concluded
that Saenz knew she was required to contact The Hartford within two days of
her absence and, hence, her failure to do so forfeited her protections under the
FMLA. The district court concluded that this outcome was required by our
decision in Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840 (5th Cir.
2007). Greenwell addressed a different situation than our case and, thus, is
factually distinguishable. We conclude that the district court erred in strictly
enforcing Harlingen’s FMLA procedures on the facts of this case.
The district court found that Saenz had extensive knowledge of
Harlingen’s FMLA procedures by way of her earlier absences. Relying on this
undisputed knowledge and Saenz’s history of unexcused absenteeism
(presumably absences other than the FMLA-approved absences), the district
court cited Greenwell for the proposition that “Saenz can be held to her
5
In its briefing, Harlingen also alleged that Saenz’s failure to submit medical
certification for her absences following her termination constituted an alternative grounds for
affirming the district court’s grant of summary judgment. Harlingen’s counsel conceded that
this argument was without merit during oral argument before the panel. Accordingly, we do
not address it.
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employer’s protocol before she will be found to have provided sufficient, timely
notice of an FMLA-qualifying condition.” Greewell does not paint with so broad
a brush. In Greenwell, an employee with a history of both FMLA and unexcused
absenteeism contacted her employer when she was required to miss work due
to an injury to her child. 486 F.3d at 841. As the injury was not foreseeable, the
employee had not been able to give advance notice of her absence. Id. The
employee received verbal approval for her absence when she called into work.
Id. When she returned to work, the employee refused to complete the necessary
FMLA paperwork, and the employer subsequently terminated her. Id. The
court, faced with Greenwell’s affirmative refusal to comply, enforced the
employer’s policy because Greenwell had actual knowledge of the policy and
offered no persuasive reason to justify setting it aside.
The instant case is different from Greenwell for three reasons. First, the
Greenwell court took exception to Greenwell’s failure to provide enough
information for the employer to realize she was requesting FMLA leave.6 As
that court noted, “[Greenwell] never mention[ed] a FMLA-qualifying [medical
condition] or [made] a request for FMLA leave” when she contacted her employer
to say she would need to miss work. Greenwell, 486 F.3d at 842. In the instant
case, Harlingen had an abundance of information. Saenz’s mother contacted
Harlingen on three separate occasions – two calls to Flores and one to Morturi.
She conveyed enough information to Morturi to cause Morturi to suggest Saenz
be taken to the emergency room. Morturi visited Saenz in the hospital and saw
her condition first hand. Flores conceded in her deposition that she was told
6
The Sixth Circuit recently distinguished Greenwell along these lines and refused to
impose a heightened employer procedure where, as here, the employer had actual notice that
an employee was suffering from a “serious health condition.” Barrett v. Detroit Heading, LLC,
311 F. App’x 779, 794 (6th Cir. 2009) (unpublished); see also Slanaker v. Accesspoint
Employment Alternatives, LLC, No. 07-11024, 2008 U.S. Dist. LEXIS 10525, at *10-11 ( E.D.
Mich. Feb. 13, 2008) (same).
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about the transfer to McAllen Behavioral Center for additional medical
treatment and the need for post-release treatment. Unlike the employer in
Greenwell, Harlingen was not left to wonder what sort of medical problem
caused Saenz’s absence or whether that problem qualified for FMLA leave.
Harlingen’s extensive involvement in Saenz’s treatment provided information
far in excess of the minimums demanded by the Greenwell court.
Second, unlike in Greenwell, we cannot conclude on this record that Saenz
affirmatively refused to comply with her employer’s procedure. The Greenwell
court was extremely concerned with Greenwell’s affirmative refusal to comply
with her employer’s post-notice requirements.7 The Greenwell court noted that
“Greenwell’s decision to not fill out the FMLA form also deprived [her employer]
of the opportunity to ‘determine that the leave qualifies under [FMLA].’” Id. at
843 (emphasis added) (second alteration in original). In fact, the “sharing of the
7
Notably, the Greenwell court addressed the notice requirement in conjunction with
its analysis of the post-notice certification. Implicit in the case is the suggestion that
Greenwell’s defective notice would have been excusable had she provided follow-up
certification as requested. In the instant case, Harlingen’s counsel conceded at oral argument
that Saenz could not have been required to certify an absence after she was terminated. In
fact, termination during the mandatory 15-day compliance period could itself be deemed a
FMLA violation. See Lubke v. City of Arlington, 455 F.3d 489, 496-97 (5th Cir. 2006) (stating
that 29 C.F.R. § 825.305(b) “requires” that the employer allow the employee at least 15 days
to respond to the medical certification request); see also Killian v. Yorozu Auto. Tenn., Inc., 454
F.3d 549, 554-55 (6th Cir. 2006) (termination of employee six days into 15-day compliance
period “was clearly a violation of the FMLA”); Cooper v. Fulton County, 458 F.3d 1282, 1286
(11th Cir. 2006) (termination of employee before the lapse of the15-day compliance period
deemed impermissible under FMLA); Muhammad v. Ind. Bell Tel. Co., 182 F. App’x 551, 553
(7th Cir. 2006) (unpublished) (describing the 15-day compliance period as a prerequisite to
adverse employment action); Rhoads v. FDIC, 257 F.3d 373, 383 (4th Cir. 2001) (“[T]he
employer must allow the employee at least fifteen calendar days to submit [certification].”
(emphasis added)); but see Young v. Russell Corp., No. 2:08-CV-148, 2008 WL 5412782, *2
(M.D. Ala. Dec. 29, 2008) (noting that “[i]f the employee never produces the certification, the
leave is not FMLA leave” where employee was afforded full 15-day period and failed to comply
(quoting 29 C.F.R. § 825.311(b) (2003) (alteration in original)); Tippens v. Airnet Sys., Inc., No.
2:05-CV-421, 2007 WL 1026954, *5 (S.D. Ohio Mar. 30, 2007) (finding that failure to submit
medical certification was “fatal to a claim of FMLA interference” where employer granted
temporary approval until lapse of 15-day period).
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informational burden” discussed at that point by Greenwell and raised by
Harlingen’s counsel at oral argument actually cuts against Harlingen. Here,
there is evidence in the record that Saenz made three efforts to contact
Harlingen through her mother and then complied with the heightened company
policy nine days later before missing any work other than the days taken off the
calendar by Flores on December 31.
Finally, Saenz’s knowledge alone of her employer’s FMLA procedures does
not justify holding her to a heightened standard. The Greenwell court justified
imposing the employer’s special heightened standards for two reasons. First,
Greenwell admitted to consciously refusing to follow her employer’s procedures.
Greenwell, 486 F.3d at 843. On this limited summary judgment record, we have
no such pre-termination refusal. Second, in Greenwell “no persuasive reasons
for straying from [the employer’s] FMLA procedures [existed]. . . .” Id. at 844.
The court noted that Greenwell conceded her son’s condition had not been
severe, the family physician had no record of the incident because it was not a
major incident, and, more generally, Greenwell never conveyed sufficient
information for the employer to make an initial determination of FMLA
qualification. Id. Saenz has made no similar concessions and there is at least
some evidence in the record to support her argument that she was suffering from
a severe psychiatric episode. She was hospitalized. She was placed under a
judicially created guardianship for several days. She was released into her
mother’s care until January 2.8 Much of this information was conveyed
contemporaneously by way of her mother and Morturi’s personal visit to allow
Harlingen to make an initial FMLA qualification determination.
8
Saenz also argues that she was prescribed Dilantin, Klonopin, and Trileptal. The
summary judgment record, however, is utterly devoid of any medical evidence as to what effect
these drugs had on her mental state during the relevant time period.
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As such, Greenwell does not support holding Saenz to her employer’s
specific in-house procedures on the record here presented. We recognize that the
summary judgment record is thin, and Harlingen may yet find evidence
supportive of applying a heightened notice requirement. At the very least,
however, Saenz has raised a fact issue as to whether the facts of this case
support application of a heightened standard.
This conclusion does not end our inquiry, however, because if she failed to
comply with the FMLA itself in giving notice, Harlingen may still have been
entitled to summary judgment. Thus, we examine whether Saenz contacted
Harlingen as soon as practicable herself or by way of an agent to provide enough
information to allow Harlingen to recognize she was taking FMLA leave as
required by the FMLA regulations. 29 C.F.R. § 825.303 (2008).9
B. Whether Saenz adequately provided FMLA notice under 29 C.F.R. § 825.303
The FMLA’s more relaxed notice requirements are codified within the
FMLA and § 825.303. In light of the requirements set forth in the applicable
regulations and viewing the facts in the light most favorable to Saenz as the non-
moving party, we find that Saenz provided satisfactory notice by way of
Galloway’s calls to Flores and Morturi on December 28, Morturi’s presence in the
emergency room, and Galloway’s call to Flores on December 31.
9
We agree with the district court’s conclusion that the 2009 revisions to the FMLA
regulations governing notice should not apply to the instant case. As the district court
explained, “[r]etroactive application is permissible if it does not ‘impair the rights a party
possessed when he acted, increase a party’s liability for past conduct, or impose new duties
with respect to transactions already completed.’” Saenz v. Harlingen Med. Ctr., No. B-08-101,
at 3 n.1 (S.D. Tex. Aug. 03, 2009) (citing Blaz v. Belfer, 368 F.3d 501, 503 (5th Cir. 2004)). As
aptly noted by the district court, the most salient regulatory change—the revisions to 29
C.F.R. § 825.303—arguably increases the duties imposed upon employees seeking FMLA leave.
Were we to apply the new regulations, Harlingen might very well be entitled to summary
judgment. As such, per Blaz, we decline to retroactively apply the new regulations, and all
citations to the governing FMLA regulations refer to the pre-2009 Code of Federal Regulations
edition.
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The FMLA requires only that an employee contact her employer and state
that leave is needed as soon as practicable under the facts and circumstances of
the particular case. 29 C.F.R. § 825.303(a)-(b) (2008). An employee need not
expressly assert rights under the FMLA or even mention the FMLA. Id. Once
an employee meets this low threshold, she is merely required to respond to
reasonable employer inquiries for additional information.
On December 28, Galloway contacted Flores to inform her that Saenz
would not be able to work due to a severe medical condition involving
hallucinations and disorientation. Galloway then contacted Morturi and
provided the same information. Morturi was sufficiently alarmed by Galloway’s
description to encourage her to bring Saenz to Harlingen’s own emergency room.
Morturi then personally observed Saenz receiving treatment in the hospital
where Saenz and Morturi worked. Galloway again called Flores on December
31 and informed her that Saenz had missed work on December 29-31 because
“[Saenz] had been in the emergency room and that she had been sent to another
hospital” due to the condition Galloway had described to her on December 28.
She also informed Flores that she needed to remove Saenz from the schedule
because Saenz was still suffering from the same condition and required
additional treatment. Galloway did not provide an anticipated duration because
she did not know how long Saenz would be incapacitated.
Harlingen cites two cases to suggest that, even under the more relaxed
notice standards, Saenz loses. First, Harlingen cites Seaman v. CSPH, Inc., 179
F.3d 297 (5th Cir. 1999). In Seaman, unlike here, the employee asked in
advance for time off to seek treatment. Seaman, 179 F.3d at 302. The employee
did not suffer any sort of medical emergency nor was he ever required to
unexpectedly miss work due to his condition. Id. Moreover, he did not ever
actually seek the treatment for which he requested time off. In fact, his request
for time off was described by the court as little more than an abstract inquiry
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during a casual conversation with his employer. Id. The employee also conceded
that he never told his employer that he needed the time to seek treatment for a
serious medical condition in his subsequent requests. Id. In this case, Saenz
was not prospectively seeking treatment when she required FMLA leave.
Instead, she was so incapacitated that her mother had to request time off on her
behalf and obtain a guardianship to transfer her to a psychiatric hospital.
Additionally, Galloway’s descriptions to Flores and Morturi were not, as the
Seaman Court rejected, a mere “reference to [a] mental condition.” Id. Instead,
Galloway’s various communications over the course of the December 28 and 31
conversations as well as Morturi’s observations were sufficient to inform
Harlingen that Saenz was suffering from a serious psychiatric condition.
Second, Harlingen points to this court’s decision in Satterfield v. Wal-Mart
Stores, Inc., 135 F.3d 973 (5th Cir. 1998), as another example of analogous
insufficient notice. In Satterfield, the court determined that a note from the
employee stating that she “was having a lot of pain in her side, and would not
be able to work that day” was not sufficient to allow her employer to determine
if she was suffering from a serious medical condition. Satterfield, 135 F.3d at
980-81 (quotation omitted). In the instant case, Galloway told Flores and
Morturi that Saenz had been hospitalized and then transferred to an inpatient
care facility for three days. As such, Galloway’s calls, which described both
Saenz’s symptoms and the significant treatment she was receiving, cannot be
equated to an off-hand note describing a single symptom without any additional
context. The information provided by Galloway did not, in the Satterfield court’s
words, require her employer to be “clairvoyant” to ascertain whether FMLA
might apply. Id. at 980. In the end, Harlingen has not adduced any similar
authority suggesting communications like Galloway’s should not be deemed to
have sufficiently “[apprised] the employer of the request for time off for a serious
health condition.” Seaman, 179 F.3d at 302.
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IV. CONCLUSION
To conclude, we hold that the district court erred by applying the
heightened requirements of Greenwell on the summary judgment record before
it and that Saenz appears to have provided the minimum required notice under
FMLA’s default provisions. Accordingly, we REVERSE the district court’s grant
of summary judgment and REMAND for proceedings consistent with this
opinion.
14