NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0511n.06
No. 11-2323
FILED
UNITED STATES COURT OF APPEALS May 22, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
DOUGLAS WISEMAN, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
AWREYS BAKERIES, LLC, )
)
Defendant-Appellee. )
Before: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge.*
COOK, Circuit Judge. Douglas Wiseman sued his former employer, Awrey Bakeries, LLC,
for firing him in violation of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601,
et seq. The district court granted summary judgment to Awrey, finding that Wiseman failed to follow
the FMLA’s procedural requirements. For the following reasons, we VACATE and REMAND.
I.
On Monday June 18, 2007, returning to work at Awrey’s Livonia, Michigan plant after back-
injury-related time off, Wiseman again hurt his back. Wiseman told Awrey’s Director of Human
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 11-2323
Wiseman v. Awreys Bakeries, LLC
Resources, Loraine Whitfield, about the reinjury, and asked to visit the health clinic and file an
accident report. Whitfield denied both requests, contacted Awrey’s worker’s compensation carrier,
and instructed Wiseman to finish the day performing light duty work. He did.
The parties dispute what took place when Wiseman reported to work the next morning,
Tuesday June 19. According to Wiseman, Whitfield ordered him back to work because, when she
spoke to the worker’s compensation carrier, she failed to relay that Wiseman had suffered a new
back injury. When Whitfield rejected a second request to attend the clinic and file an accident
report, Wiseman contacted a union representative, who agreed he should attend the clinic. Whitfield
then accompanied Wiseman to the first aid station to complete an injury report, in which he
complained of a “strain” in his “lower back.” Wiseman maintains that Whitfield also told him to
visit the company health clinic after work, but when Wiseman explained that he “couldn’t work”
and “was injured,” Whitfield allowed him to go home, telling him that he would remain unassigned
and on call, and would receive a work schedule the following week.
Whitfield tells a different story, claiming that after Wiseman completed his injury report, she
allowed him to visit the clinic. He left work mid day, but never visited the clinic or told Whitfield
that he needed to see his own doctor. Wiseman remained scheduled to work the entire week, but
failed to report or document his absences.
Returning to the undisputed facts, Wiseman left work but did not go to the company clinic.
The very next day, he went to his doctor, who provided him with a note confirming that he should
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Wiseman v. Awreys Bakeries, LLC
be off work but lacking any designation as to the nature of his back injury. Though Wiseman phoned
a co-worker on each of the next four business days (Wednesday June 20–Monday June 27) to ask
if he had been scheduled to work, he never called Whitfield to explain his absences.
On Friday June 22, four days after his injury, Whitfield learned that Wiseman had not been
coming to work after he left a voice mail message with Awrey’s Benefits and Human Resources
Manager, Janet Lewis. Whitfield instructed Lewis both to call Wiseman and to send him a letter by
certified mail explaining that these no-call, no-show absences violated his union’s collective
bargaining agreement. Lewis left messages on Wiseman’s home and cell phones notifying him that
Awrey considered him “a No Call No Show for three consecutive days.” (R. 52-13, June 22, 2007
Letter.) The letter (“June 22 letter”) also warned that because he “provided [no] reason for [his]
absences or communicated in any way [with] the Company,” he would lose his seniority unless he
provided satisfactory reasons for his absences by Monday June 25, 2007. (Id.)
Wiseman did call Whitfield on Monday, June 25th, explaining that he visited his doctor and
received documentation. The following day, Whitfield sent him a letter warning him that he needed
to supply “satisfactory” documentation explaining his absences by Friday June 29 because his prior
voicemail message “provided no explanation for [his] absences” and during their June 25th
conversation he had provided no “medical reasons” for his absences nor provided doctor-visit
details. (R. 52-14, June 26, 2007 Letter.)
Wiseman missed work the 25th and every other day that week, despite Whitfield calling and
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Wiseman v. Awreys Bakeries, LLC
leaving daily messages on June 26–28th requesting he report to work as scheduled. On the deadline
date, Friday the 29th, Wiseman delivered Whitfield the doctor’s note prepared after his June 20th
visit. Whitfield responded with a letter (“June 29 letter”), advising Wiseman that the doctor’s note
“does not satisfactorily explain the reason for [his] absence last week,” and requesting “a more
detailed explanation from your physician.”
Nearly four weeks later, on July 23, Wiseman faxed Whitfield a doctor’s note dated July 6,
that cleared Wiseman to return to work on July 17, 2007. The day after the fax, Awrey terminated
Wiseman.
II.
We review a district court’s order granting summary judgment de novo, Kalich v. AT&T
Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012), affirming the judgment on any basis supported
by the record, Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002). Preserving FMLA leave entails
a series of back-and-forth exchanges between employee and employer. First, to “invoke the
protection of the FMLA, an employee must provide notice and a qualifying reason for requesting the
leave.” Walton v. Ford Motor Co., 424 F.3d 481, 486 (6th Cir. 2005) (quoting Brohm v. JH Props.,
Inc., 149 F.3d 517, 523 (6th Cir. 1998)). When an unforeseen need for FMLA-leave arises, “[i]t is
expected that an employee will give notice to the employer within no more than one or two working
days of learning of the need for leave.” 29 C.F.R. § 825.303(a) (2007) (emphasis added). The
employee need not expressly assert his FMLA rights, 29 C.F.R. § 825.303(b) (2007), but “must give
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the employer enough information for the employer to reasonably conclude that an event described
in [the FMLA] has occurred,” Walton, 424 F.3d at 486 (internal quotation marks omitted). Once the
employee provides this information, the employer may confirm the employee’s notice through such
“informal means,” 29 C.F.R. § 825.303(b) (2007), as requesting a “medical certification” from the
employee’s health care provider that establishes the need for leave, see id. § 825.305(a). “The
employee . . . will be expected to provide more information when it can readily be accomplished as
a practical matter, taking into consideration the exigencies of the situation.” Id. § 825.303(b). If the
“employee fails to explain the reasons, leave may be denied.” Id. § 825.208(a)(1) (2007).
Although the district court found that Wiseman “ha[d] not made a particularly strong
showing” as to notice (R. 62, Rpt. & Rec. at 8 n.2), the magistrate judge assumed—out of an
“abundance of fairness”—that Wiseman’s “communication with various Awrey supervisors placed
[Awrey] on notice that he was applying for an FMLA leave.” (Id. at 7.) The magistrate then
construed the June 22 and 29 letters as requests for medical certification and recommended granting
summary judgment to Awrey because Wiseman failed to provide timely certification. The district
court adopted the magistrate judge’s recommendation and granted summary judgment to Awrey.
Yet because Awrey conceded in its briefing and at oral argument that it did not request a
medical certification, we cannot affirm on the ground the district court endorsed. Awrey’s brief
reads: Awrey “could not classify [Wiseman’s] absences as FMLA-qualifying or request a
certification from his health care provider” because it lacked “sufficient detailed information
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Wiseman v. Awreys Bakeries, LLC
suggesting he had a serious health condition.” (Appellee Br. at 37–38.) And at oral argument,
Awrey’s counsel stated that it was “still trying to get sufficient information to determine whether
[Wiseman] actually would be eligible and entitled [to] FMLA leave” (Oral Arg. at 19:31–19:41) and
“concede[d] that [he had] not seen anything in the record where [Awrey] requested a medical
certification,” (id. at 20:40–20:47). Our review of the record confirms this position. The
correspondence from Awrey fails to mention “FMLA” or the term “medical certification,” and the
June 22 and 29 letters also set deadlines for Wiseman to provide medical details inside the fifteen-
day medical-certification window required by the FMLA. The district court therefore improperly
disposed of Wiseman’s case for failing to timely respond to medical-certification requests. See
Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 573–74 (6th Cir. 2010).
In the absence, then, of the untimely-certification grounds to decide the claim, we return to
the issue of whether Wiseman gave FMLA-qualifying notice. He maintains he did because he told
Whitfield on Tuesday June 19th he “was injured” and “could not work” due to his back injury. He
further points to the injury report he completed at work, the employer’s knowledge of his
susceptibility to serious back pain and injury, the multiple doctor’s notes, and his multiple requests
to see Awrey’s doctor. Whitfield, on the other hand, disputes this recollection of events, arguing that
his communications never suggested he needed FMLA leave. (See R. 62, Rpt. & Rec. at 7.)
Viewing the notice evidence in the light most favorable to Wiseman, a genuine issue of material fact
remains as to whether he provided FMLA-qualifying notice “within no more than one or two
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Wiseman v. Awreys Bakeries, LLC
working days” of learning that he needed FMLA leave.1 See 29 C.F.R. § 825.303(a) (2007).
Furthermore, a genuine issue of material fact remains regarding the seriousness of Wiseman’s
health condition. See Stimpson v. United Parcel Serv., 351 F. App’x 42, 47–48 (6th Cir. 2009)
(citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003)). He argues that he
suffered from a qualifying incapacitation and underwent continuing treatment for his back injury.
Awrey contests this, arguing that Wiseman suffered no serious incapacity and remained capable of
performing life’s daily activities throughout his time away. Because the district court never had
occasion to decide this issue, we also remand for the district court’s consideration the issue whether
Wiseman suffered a serious health condition. See 29 U.S.C. § 2611(11); Plant v. Morton Int’l Inc.,
212 F.3d 929, 936 (6th Cir. 2000).
Finally, a genuine issue of material fact remains surrounding Wiseman’s absences between
July 17, 2007 and July 23, 2007. On July 23, Wiseman faxed Whitfield a doctor’s note, dated July
6, 2007, which stated that he could return to work on July 17. Awrey points to this unexcused, six-
day absence as an alternative ground for summary judgment. Wiseman, however, testified that he
received the letter around July 22 and then sent the letter to Whitfield as soon as it was provided to
him. Viewing this exchange in the light most favorable to Wiseman, we cannot dispense with his
claim on this ground.
1
On remand, the district court should apply the 2007 version of applicable regulations. See
Coffman v. Ford Motor Co., 447 F. App’x 691, 694 n.3 (6th Cir. 2011) (applying the “regulations
that were in place at the time” of employee’s termination).
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III.
We VACATE and REMAND.
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