dissenting.
' The majority is correct in the context of Scobey not being entitled to FMLA leave on the basis of alcohol use, as opposed to alcohol abuse treatment. See 29 C.F.R. § 825.114(d). However, I believe there is a genuine issue of material fact as to whether Scobey put Nucor on notice as to his being in need of FMLA leave on the basis of severe depression. I therefore dissent.
Scobey gave Nucor sufficient notice as to his being in need of FMLA leave on the basis of severe depression because he twice stated he was having a “nervous breakdown.” See Webster’s College Dictionary 888 (2d ed.2000) (defining “nervous breakdown” as “any disabling mental or emotional disorder requiring treatment”); Oxford English Dictionary 515 (2d ed.1989) (defining “nervous breakdown” as a “term for any severe or incapacitating emotional disorder”). In addition, his other statements (that he was “through,” “f*cked up,” and “had some issues”), while they could have just as easily related to his alcohol use and intoxication, led Nucor employees to express concern over his mental state and even possible suicide. For example, Serratt expressed concern over Scobey’s mental state, which he relayed to Blakemore. Blakemore was so concerned over Scobey’s mental health, including possible suicidal thoughts, that he went to Scobey’s house to check on him. And, when Scobey finally spoke with HR Manager Crain, Scobey told her he had both alcohol and mental problems. These statements indicated more than generic depression and gave Nucor notice that Scobey’s absences may be the result of a serious health condition entitled to FMLA protection.
Scobey’s notice was also timely. Nucor argues Scobey did not give notice he needed treatment until April 14, which it claims was beyond the one or two days notice contemplated by the statute. See Woods v. DaimlerChrysler Corp., 409 F.3d 984, 991 (8th Cir.2005) (citing 29 C.F.R. § 825.303(a)). I disagree. Rather, the statements indicating a possible need for leave for mental health issues began much earlier. Scobey first expressed his belief he was having a “nervous breakdown” on April 11, only one day after his first absence. His other comments which led Nucor employees to express concern over his mental state began on the day of his first absence, April 10. Therefore, Scobey commenced giving notice on April 10, and this notice became sufficient, at the latest, on April 11, when he stated he was having a “nervous breakdown.” While it is probable Nucor simply believed these statements to be excuses or exaggerations because of his obvious intoxication, the statute was satisfied because Scobey gave enough information to indicate a possibility he was incapacitated from work because of mental problems. Once Scobey raised this possibility, it was then incumbent upon Nucor to require substantiation to differentiate between the possible causes. See Thorson v. Gemini, Inc., 205 F.3d 370, 381-82 (8th Cir.2000).
I therefore respectfully dissent.