United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-11276
DEBBIE URBAN,
Plaintiff-Appellee,
VERSUS
DOLGENCORP OF TEXAS, INC.,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas, Abilene
Before DeMOSS, STEWART, and CLEMENT, Circuit Judges.
DeMOSS, Circuit Judge:
Appellee Debbie Urban (“Urban”) filed suit in the Northern
District of Texas, alleging that Appellant Dolgencorp of Texas,
Inc. (“Dollar General”) terminated her employment in contravention
of the Family Medical Leave Act (“FMLA”). The district court
granted Urban’s motion for summary judgment, finding that Dollar
General had not complied with the relevant FMLA regulations
regarding Urban’s right to cure deficiencies in the medical
documentation she submitted supporting her request for leave.
Dollar General timely filed the instant appeal. For the reasons
discussed below, we REVERSE the district court’s granting of
summary judgment and RENDER judgment in favor of Dollar General.
BACKGROUND AND PROCEDURAL HISTORY
Urban began working for Dollar General in May 2001 in Abilene,
Texas. In May 2002, Urban, then an assistant store manager in
Dollar General’s Anson, Texas, store, found it necessary to have
bilateral carpal tunnel surgery. The surgery was scheduled to take
place on May 28 and May 30, 2002. Sometime before May 28, 2002,
Urban informed Dollar General that, because of her upcoming
surgery, she was requesting a medical leave of absence pursuant to
the FMLA. Urban requested leave that would begin on June 1, 2002,
and last through August 24, 2002.
Dollar General informed Urban on or about June 4, 2002, that
it was tentatively designating her requested leave of absence as
FMLA-qualifying. Urban was notified by Dollar General that it
would be necessary for her to produce medical certification from
her physician to approve the leave under the FMLA. Dollar General
informed Urban that the deadline to return the medical
certification form was June 24, 2002. Urban requested from Dollar
General, and was granted, a 15-day extension of time within which
to return the completed medical certification form, pushing back
the deadline to July 9, 2002. Dollar General did not receive
Urban’s medical certification by July 9, 2002. By letters of July
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19 and July 22, 2002, Dollar General advised Urban that her
employment was terminated because her 30 days of non-FMLA medical
leave provided by company policy had already expired, and the
company considered her absences unauthorized.
Urban filed suit in state court in September 2002, alleging
that Dollar General terminated her employment in violation of the
FMLA. Dollar General removed the action to federal court in
October 2002, based upon the existence of a federal question. In
June 2003, Urban filed a motion for summary judgment as to
liability only, and Dollar General submitted a cross motion for
summary judgment. The district court, in August 2003, granted
Urban’s partial motion for summary judgment, while denying Dollar
General’s motion.
Dollar General sought an order from the district court
certifying for immediate appeal the issue of whether the relevant
federal regulations require an employer to provide an employee the
opportunity to cure a deficiency in an incomplete medical
certification where the deficiency or incompleteness is, in fact,
the failure to submit a medical certification in the first place.
The district court granted Dollar General’s motion, and this Court
subsequently granted leave to appeal from the interlocutory order
pursuant to 28 U.S.C. § 1292(b).
STANDARD OF REVIEW
This Court reviews grants of summary judgment de novo,
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applying the same standard as the district court. Tango Transp. v.
Healthcare Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003).
Summary judgment is appropriate if no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c). This Court views the evidence
and draws all justifiable inferences in a light most favorable to
the non-movant. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956
(5th Cir. 1993). The non-movant must go beyond the pleadings and
come forward with specific facts indicating a genuine issue for
trial to avoid summary judgment. Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for
the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Summary judgment is appropriate, however, if the non-
movant “fails to make a showing sufficient to establish the
existence of an element essential to that party's case.” Celotex,
477 U.S. at 322.
DISCUSSION
The FMLA was enacted in 1993, in part, to provide job security
for employees with “serious health conditions that prevent them
from working for temporary periods.” 29 U.S.C. § 2601(a)(4) (1999).
To effectuate this goal, the FMLA entitles employees to take
reasonable leave for approved medical reasons. Id. § 2601(b)(2).
During a 12-month period, an eligible employee may take a total of
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12 workweeks of leave in connection with “a serious health
condition that makes the employee unable to perform the functions
of the position of such employee.” Id. § 2612(a)(1)(D). The FMLA
also provides that “[a]n employer may require that a request for
leave . . . be supported by a certification issued by the health
care provider of the eligible employee.” Id. § 2613(a). If the
employer does require medical certification, it must give the
employee at least 15 calendar days in which to submit the
certification. 29 C.F.R. § 825.305(b) (2002).
Such a medical certification is considered sufficient if it
contains certain information, including: (1) the date on which the
serious health condition commenced; (2) the probable duration of
the condition; (3) the appropriate medical facts within the
knowledge of the health care provider regarding the condition; and
(4) if the leave is for the employee’s own serious health
condition, a statement that the employee is unable to perform the
functions of his or her job.1 29 U.S.C. § 2613(b). If an employer
requests such documentation, it is required to notify the employee
1
In addition to providing leave for the employee’s own serious
health condition, the FMLA also entitles the employee to leave for
any of the following:
(A) Because of the birth of a son or daughter of the employee
and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the
employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or
parent has a serious health condition.
29 U.S.C. § 2612(a)(1)(A)-(C).
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of the consequences for failing to provide an adequate
certification. 29 C.F.R. § 825.301(b)(1)(ii). If the employer
finds the certification form incomplete, the employer must advise
the employee of the deficiency and provide the employee a
reasonable opportunity to cure any such deficiency. Id. §
825.305(d).
It is undisputed that Urban provided Dollar General with
proper notice of her intent to request FMLA leave with regard to
her carpal tunnel surgeries. Likewise, both parties agree that
Dollar General requested medical certification and apprised Urban
of the consequences she would face if her medical certification was
not timely submitted. The sole issue before this Court, therefore,
is whether the curing provision found in § 825.305(d) applies in
the instance where an employee fails to submit a medical
certification to the employer altogether.
Urban contends that she delivered the required medical
certification to her physician and requested that, once completed,
the certification be faxed directly to Dollar General. According
to Urban, the physician’s office apparently misplaced the form and
consequently never sent Dollar General a copy of Urban’s medical
certification. Urban asserts that she was unaware that Dollar
General failed to receive her medical certification before the
deadline had passed. Urban contends that she did not learn of this
fact until she was notified by Dollar General, in the form of two
letters dated July 19 and July 22, 2002, that her request for FMLA
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leave was denied for failing to provide medical certification by
the July 9, 2002, deadline. Urban maintains that her “reasonable
opportunity to cure any such deficiency,” pursuant to § 825.305(d),
was entirely dependent upon Dollar General advising her that the
certification form had not been received. Urban argues that it was
impracticable for her to re-contact her doctor and cure the problem
until after she was informed of the failure by Dollar General.
Meanwhile, Dollar General argues that it fully complied with
all relevant statutory and regulatory requirements. Dollar General
points out that it went as far as granting Urban’s request for a
15-day extension of time from the original deadline within which to
return the completed medical certification form — an extension that
neither the FMLA nor § 825.305(d) requires. Dollar General also
suggests that Urban’s proffered reason for her untimely submission
— that her doctor was at fault for not forwarding the certification
to Dollar General — is immaterial. Instead, Dollar General
contends, it was Urban’s responsibility, as an employee seeking the
protections of the FMLA, to ensure that her medical certification
was timely filed.
The Fifth Circuit has not addressed whether a certification
that is never submitted to the employer may be considered
“incomplete” under § 825.305(d). Urban relies upon several cases
in support of her position. For instance, Urban cites Jiminez v.
Velcro USA, Inc., No. 01-001-JD, 2002 WL 337523 (D.N.H. Mar. 4,
2002), for the proposition that the definition of “deficiency”
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includes “a lack or shortage of required information.” Id. at *3
(citation omitted). The employee in Jiminez, however, actually
submitted a medical certification to the employer. Id. at *2. The
certification was considered “incomplete” because the information
provided therein by the physician did not establish that the
employee was entitled to FMLA leave. Id. Urban also cites DeLong
v. Trujillo, 1 P.3d 195 (Colo. App. 1999), reversed on other
grounds, 25 P.3d 1194 (Colo. 2001), in support of her argument that
“non-existent” is the same as “incomplete” for purposes of §
825.305(d). In Trujillo, the employee’s physician failed to return
the requested medical certification form to the employer. 1 P.3d at
201. The employee did not learn that the certification had not
been received until he was notified by his employer that a
disciplinary hearing was being held to address his absences. Id.
However, unlike the instant case, the employee’s father’s
physician in Trujillo ultimately sent the employer a letter
identifying the reasons for the employee’s absence from work. Id.
Importantly, the letter from the physician was received by the
employer prior to any adverse action taken by the employer. Id.
The employer then made the determination that the letter amounted
to nothing more than a “return to work slip” and terminated the
employee soon thereafter. Id. The Colorado Court of Appeals
determined that the employer violated the FMLA because it did not
notify the employee that the “return to work slip” was inadequate
as a medical certification. Id. Thus, concluded the court, the
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employer did not provide the employee with an opportunity to cure
the deficiency. Id. Such is not the case here where Dollar
General received no documentation whatsoever from Urban prior to
terminating her employment.2
Simply stated, the facts as they exist in both Jiminez and
Trujillo are unlike those present here. It is undisputed that
Urban failed to submit documentation of any kind to Dollar General
within the specified deadline. Moreover, neither party argues that
Dollar General did not properly notify Urban of the deadline or of
the consequences in the event she failed to submit the required
information. As such, the case law upon which Urban relies is
unpersuasive.
Dollar General, meanwhile, cites the Seventh Circuit’s
decision in Rager v. Dade Behring, Inc., 210 F.3d 776 (7th Cir.
2000), as providing this Court with the proper guidance. In Rager,
the employee reported her need to take leave on December 15, 1997,
for an impending surgery to take place one week later on December
22. Id. at 777. The employer notified the employee that she might
be eligible for leave under the FMLA, but that in order to receive
such leave she would have to submit a medical certification within
three weeks (one week longer than the minimum requirement as set
2
Although Urban maintains Dollar General ultimately received the
certification, she concedes that any such receipt occurred after
Dollar General made the decision to terminate her employment.
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forth in 29 C.F.R. § 825.305(b)).3 Id. at 778. Thereafter, on
December 23, 1997, the day after the surgery, the employer again
sent a letter requesting that the employee submit medical
certification, restating that the deadline for doing so was January
12, 1998. Id. Approximately one week later, the employer, still
not having received the certification, sent the employee a
“Certification of Health Care Provider” form, followed two days
later by another letter reiterating the deadline for her to
complete and submit the requested documentation. Id. The deadline
passed without the employee responding, and she was subsequently
fired. Id.
The district court determined that the employer did not
violate the FMLA by terminating the employee, and the Seventh
Circuit affirmed. The Seventh Circuit concluded that the employee
had been informed of the requirement to submit the appropriate
medical certification, was notified of the consequences associated
with her failure to do so, and was given the minimum 15-day period
in which to provide that information. Id. Similarly, in the
instant case, Urban was notified by Dollar General that she was
required to submit the medical certification, and she was made
aware of the consequences in the event she failed to comply. Also
3
While the employee in Rager v. Dade Behring, Inc., 210 F.3d
776 (7th Cir. 2000), was not given a specific medical certification
form at the time she was notified of her possible FMLA eligibility,
as the Seventh Circuit observed, there is nothing in the FMLA that
requires an employer to request medical documentation on a
particular form. Id., at 778.
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like the plaintiff in Rager, Urban was given more than the 15-day
period to provide the necessary documentation, and in fact,
received an extension from Dollar General in order to do so.
Secondarily, as a policy matter, Dollar General argues that to
construe § 825.305(d) as Urban suggests, i.e., equating a non-
existent medical certification to an “incomplete” one, would lead
to results not contemplated by Congress when it enacted the FMLA.
We find Dollar General’s reasoning persuasive. It is the stated
purpose of the FMLA to “balance the demands of the workplace with
the needs of families” and “to entitle employees to take reasonable
leave for medical reasons” in a “manner that accommodates the
legitimate interests of employers.” 29 U.S.C. § 2601(b)(1)-(3).
Recognizing the balance Congress intended to strike, it would seem
illogical to require an employer to continually notify an employee
who failed to submit medical certification within a specified
deadline.
Were this Court to adopt Urban’s proposed application of §
825.305(d), an employer could never set a real deadline for the
return of a medical certification. In effect, whenever an employee
failed to return a medical certification within the appropriate
time period, the employer would be required to notify the employee
of that fact and provide the employee with an opportunity to cure
the deficiency by allowing the employee to submit the certification
within a new, extended deadline – a scenario that could, in theory,
repeat itself ad infinitum. The bottom line, therefore, would be
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that the concept of a “deadline” under § 825.305(d) would have no
meaningful significance and no actual consequences. This would, in
effect, create an imbalance where the “legitimate interests of
employers” no longer receive the protections that Congress
presumably intended to provide when it enacted the FMLA.
CONCLUSION
Having carefully reviewed the entire record in this case, and
having fully considered the parties’ respective briefings and
arguments, we conclude that Dollar General satisfied its statutory
obligations under the FMLA before it terminated Urban’s employment.
We therefore REVERSE the district court’s grant of summary judgment
and RENDER judgment in favor of Dollar General.
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