                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3400

R OBERT JONES,
                                                 Plaintiff-Appellant,
                                 v.

C&D T ECHNOLOGIES, INC.,
                                                Defendant-Appellee.


             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 1:10-cv-696—William T. Lawrence, Judge.



      A RGUED M ARCH 29, 2012—D ECIDED JUNE 28, 2012




 Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
  K ANNE, Circuit Judge. Robert Jones brought this ac-
tion alleging that his employer, C&D Technologies, Inc.,
interfered with his right to take leave under the Family
and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
The district court granted summary judgment for C&D
Technologies, reasoning that Jones was not entitled to
FMLA leave because he did not receive treatment
during his absence. We affirm.
2                                               No. 11-3400

                     I. B ACKGROUND
  In June 2000, C&D Technologies hired Robert Jones as
a machine operator for its plant in Attica, Indiana. Both
before and during his time at C&D, Jones experienced
periodic leg and back pain and bouts of anxiety. Jones’s
condition required him to see a treating physician once
every two or three months and to undergo a series of
tests two or three times per year. Jones also took prescrip-
tion medication.
  Effective May 1, 2003, C&D implemented a compre-
hensive attendance policy that assesses employees a
varying number of points for policy violations. For exam-
ple, employees are assessed one point if they miss more
than four hours of a scheduled shift and one-half point
for absences lasting less than four hours but more than
thirty minutes. The company also requires employees
to report all absences exceeding thirty minutes to a shift
supervisor prior to the absence. Failure to do so results
in the assessment of an additional one-half point
against the employee. Points are not assessed for pre-
approved FMLA absences. Consequences for violating
the policy depend on the number of accumulated points.
In any four-month period, an employee who receives
one point is given a written warning; a second written
warning is given to those employees who accrue two
points; and a third point results in termination. Immedi-
ately preceding his October 1, 2009, absence, Jones had
accrued two and one-half points.
 During the last week of September 2009, Jones spoke
with Cathy Morgan, C&D’s FMLA Coordinator, about his
No. 11-3400                                              3

medical condition. On September 25, and again on Octo-
ber 2, Jones’s treating physician, Dr. Kathryn Lubak,
faxed Morgan FMLA certifications indicating that Jones
required periodic treatment for his leg pain and anxiety.
On September 30, Jones again spoke with Morgan, this
time to request FMLA leave for a 1:00 p.m. appointment
the next day in Crawfordsville, Indiana. During that
conversation, Morgan made clear that Jones must notify
his supervisor of the absence. The parties dispute
whether Jones requested FMLA leave for the entire day
or whether he simply requested leave for his afternoon
appointment.
  Jones missed his entire scheduled shift on October 1. He
claims to have left a voicemail for his supervisor prior
to his absence, but the company disputes this. In any
event, on the morning of October 1, Jones first retrieved
his paycheck from C&D and then visited Dr. Lubak at
her clinic in Veedersburg, Indiana. At approximately
10:00 a.m., Jones signed in at Dr. Lubak’s office, although
he did not have a scheduled appointment. He did two
things while there. First, he confirmed that Dr. Lubak’s
office had transferred all necessary referral paperwork to
the Crawfordsville clinic—the site of his afternoon ap-
pointment. Jones maintains that this confirmation was
necessary because Dr. Lubak’s clinic was unaffiliated with
the Crawfordsville clinic, and he wanted to ensure the
paperwork was in order before making the twenty-five-
mile drive. Second, Jones obtained a prescription-
refill note for Xanax and hydrocodone. Throughout this
unscheduled visit, Jones was never examined or evaluated
by Dr. Lubak. Rather, the entirety of Jones’s contact with
4                                              No. 11-3400

Dr. Lubak took place in the office lobby. Jones left
Dr. Lubak’s office after approximately twenty-five min-
utes. He then traveled to Crawfordsville for his 1:00 p.m.
appointment.
   Because of his October 1 absence, C&D suspended Jones
from work beginning October 2, pending a further investi-
gation. Jones and a union representative then met with
company officials on October 6. At that meeting, C&D
claims that Jones was unable to provide any documenta-
tion suggesting that he received treatment for his health
condition on the morning of October 1. Following the
meeting, company officials contemplated assessing Jones
one and one-half points for his absence and failure to
provide prior notification to his supervisor. C&D officials
ultimately assessed Jones only one-half point, concluding
that Jones’s absence in the morning was for “personal
business,” while his afternoon was spent receiving FMLA-
qualifying treatment. The company also gave him the
benefit of the doubt as to whether he gave prior notice
to his supervisor. The one-half point assessed for the
morning absence gave Jones a total of three points in
the preceding four-month period. In accordance with
its attendance policy, C&D terminated Jones’s employ-
ment on October 7.
  Jones filed suit on June 7, 2010, alleging that C&D
interfered with his right to take FMLA leave. On May 6, the
company and Jones filed cross-motions for summary
judgment. The district court subsequently granted C&D’s
motion and denied Jones’s motion, reasoning that Jones
was not entitled to leave on the morning of October 1
No. 11-3400                                               5

because he did not receive medical treatment for his
condition. Jones filed this timely appeal.


                       II. A NALYSIS
  On cross motions for summary judgment, we review
the district court’s resolution de novo, viewing the record
in the light most favorable to Jones and drawing all
reasonable inferences in his favor. See Clarendon Nat’l
Ins. Co. v. Medina, 645 F.3d 928, 933 (7th Cir. 2011). Sum-
mary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). We must affirm a grant of
summary judgment if Jones cannot establish an element
of his claim on which he would bear the burden of proof
at trial. Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008).
  The FMLA generally provides eligible employees with
as many as twelve weeks of unpaid leave during any
twelve-month period. 29 U.S.C. § 2612(a)(1). Employers
are prohibited from interfering with an employee’s use
or attempted use of FMLA leave. Id. § 2615(a)(1). To prevail
on an FMLA-interference theory, the plaintiff employee
must prove that: “(1) she was eligible for the FMLA’s
protections; (2) her employer was covered by the FMLA;
(3) she was entitled to take leave under the FMLA; (4) she
provided sufficient notice of her intent to take leave; and
(5) her employer denied her FMLA benefits to which she
was entitled.” Makowski v. SmithAmundsen LLC, 662 F.3d
6                                               No. 11-3400

818, 825 (7th Cir. 2011) (quoting Goelzer v. Sheboygan Cnty.,
Wis., 604 F.3d 987, 993 (7th Cir. 2010)).
  The dispute in this case focuses squarely on the third
element—whether Jones was entitled to take FMLA leave
on the morning of October 1.1 Among other reasons, an
employee is entitled to FMLA leave if she suffers from
“a serious health condition that makes the employee
unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2612(a)(1)(D); see also Kauffman v.
Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005). Thus,
for Jones to be entitled to FMLA leave, he must suffer
from a “serious health condition,” and he must be unable
to perform the duties of a machine operator. See Stoops
v. One Call Commc’ns, Inc., 141 F.3d 309, 312 (7th Cir.
1998). The Act itself and the accompanying Department
of Labor (DOL) regulations provide further clarification
as to each component. First, the Act defines a “serious
health condition” as “an illness, injury, impairment, or
physical or mental condition that involves—(A) inpatient
care in a hospital, hospice, or residential medical care
facility; or (B) continuing treatment by a health care
provider.” 29 U.S.C. § 2611(11). Jones maintains, and C&D
does not dispute, that his leg and back pain and bouts
of anxiety qualify as a “serious health condition” involving
continuing treatment.
  Jones must satisfy a second requirement to be entitled
to FMLA leave under the serious-health-condition sub-


1
  The parties also dispute the fourth and fifth elements of
Jones’s interference claim, but our conclusion as to the
third element is dispositive.
No. 11-3400                                              7

section. Namely, he must also show that his health pre-
vented him from performing the duties of a machine
operator. See id. § 2612(a)(1)(D). The DOL regulations
define an employee unable to perform his duties as
one “who must be absent from work to receive med-
ical treatment for a serious health condition.” 29 C.F.R.
§ 825.123(a) (emphasis added). In other words, an em-
ployee who receives treatment for a serious health con-
dition is automatically considered to be unable to
perform the functions of her position. Importantly,
§ 825.123 uses the word “must” to imply that the em-
ployee’s absence is necessary for that employee’s treat-
ment. Alternatively, an absence for unnecessary treat-
ment or no treatment at all means that the employee is
not sufficiently incapacitated so as to render her unable
to perform her duties. See Ridings v. Riverside Med.
Ctr., 537 F.3d 755, 770 (7th Cir. 2008) (“[B]ecause the
employee had not demonstrated that he was receiving
treatment that rendered him unable to work on those
three days, he did not demonstrate FMLA entitlement.”
(discussing Darst v. Interstate Brands Corp., 512 F.3d 903,
911-12 (7th Cir. 2008))). Therefore, the critical inquiry
to this dispute turns on the definition of treatment.
The district court and C&D agree that Jones’s morning
errands do not constitute treatment as a matter of law,
while Jones argues that receipt of the prescription-
refill note qualifies.
  The FMLA does not explicitly define treatment, but the
DOL regulations seemingly attempt to do so in two
different provisions. Section 825.115 defines “treatment”
and § 825.113(c) defines both “treatment” and “a regimen
8                                               No. 11-3400

of continuing treatment.” The question for us is whether
these treatment definitions can be applied to § 825.123 to
determine whether “treatment” prevented Jones from
performing the functions of his position.
   We begin by noting that the DOL, in 29 C.F.R.
§ 825.113(a), parrots the Act’s definition of a “serious
health condition,” except to note that § 825.114 further
defines “inpatient care” while § 825.115 further defines
“continuing treatment.” Section 825.115 then lists the
ways in which an employee can prove that she suffers
from a serious health condition requiring continuing
treatment. But importantly for this case, § 825.115 does
not define what constitutes such treatment. In other
words, Jones’s pain and anxiety may constitute a chronic
condition requiring continuing treatment, see 29 C.F.R.
§ 825.115(c), but that subsection is not helpful in deter-
mining whether Jones actually received medical treatment
that prevented him from performing his job duties. And,
the cases Jones attempts to rely upon generally only
discuss whether the employee has a serious health con-
dition requiring continuing treatment—an element not at
issue here. See, e.g., Stevenson v. Hyre Elec. Co., 505 F.3d
720, 727-28 (7th Cir. 2007); Harrell v. Jacobs Field Servs.
N. Am., Inc., No. 09-CV-02320, 2011 WL 3044863, at *5 (C.D.
Ill. July 25, 2011); Bardwell v. GlobalSantaFe Drilling Co.,
No. H-06-0171, 2007 WL 2446801, at *13 (S.D. Tex. Aug. 23,
2007); Wheeler v. Pioneer Developmental Servs., Inc., 349
F. Supp. 2d 158, 165 (D. Mass. 2004). Section 825.115
brings us no closer to understanding the term “treatment”
as used in § 825.123.
No. 11-3400                                                9

  At first blush, the definition of “treatment” in
§ 825.113(c) appears more promising (the provision
begins by stating, “The term ‘treatment’ includes . . . .”).
Jones asks us to apply a portion of § 825.113(c) to our
determination of whether he received treatment that
prevented him from performing his job. Specifically, Jones
points to the language in this provision that suggests
that “a course of prescription medication” constitutes
treatment. But, Jones overlooks a more nuanced—and
accurate—reading of this provision.
  The DOL defines both “treatment” and “a regimen of
continuing treatment” in 29 C.F.R. § 825.113(c). The first
two sentences of that subsection suggest that “treatment”
includes examinations and evaluations of a “serious
health condition,” but excludes routine physical exam-
inations. The last two sentences of § 825.113(c) define
“a regimen of continuing treatment,” as including “a
course of prescription medication,” but not necessarily
those activities that can be “initiated without a visit to a
health care provider.” Jones points to the prescription-
medication reference as evidence that he received
FMLA treatment, but as already indicated, the “regimen-
of-continuing-treatment,” like the “continuing-treatment”
definition, is only useful for determining whether a
“serious health condition” exists. And there is some
logic to this distinction. Intuitively, a course of prescrip-
tion medicine is evidence that an employee suffers from
a serious medical condition requiring continuous
treatment—that is, the medicine is designed to treat the
condition. But, taking prescription medicine is not in-
dicative of whether an employee receives treatment
10                                              No. 11-3400

that prevents her from performing her job. Many chronic
conditions require a course of prescription medication,
but the FMLA requires something more for an employee
to become entitled to leave—inability to perform her
job functions. A course of prescription medication and
an inability to perform a job are not mutually exclusive.
  This distinction squares with our earlier interpretations
of “treatment.” In Darst v. Interstate Brands Corp., we found
that “treatment” does not include actions such as calling
to make an appointment or scheduling substance-
abuse rehabilitation. 512 F.3d at 911. Instead, treatment
“include[s] examinations to determine if a serious health
condition exists and evaluation of the condition.”
Id. Darst’s interpretation is in line with the definition
of “treatment” as used in the first two sentences of
§ 825.113(c). See also Ridings, 537 F.3d at 770.
  That brings us back to Jones’s October 1 absence.
That morning, Jones retrieved his paycheck from C&D
and visited Dr. Lubak’s clinic to ensure his referral
to another lab was in order. He also obtained a
prescription-refill note. Jones’s first two activities
plainly do not constitute treatment that otherwise pre-
vented him from working that morning. See Darst, 512
F.3d at 911. Nor does merely picking up a prescription-
refill note. Although we can envision a scenario where
obtaining a prescription note in connection with a physi-
cian’s examination might constitute treatment, this case
does not approach that hypothetical. Here, Dr. Lubak
never evaluated or examined Jones, and Jones even con-
ceded in a deposition that he was never “physically
No. 11-3400                                              11

examined” that morning. Jones arrived at Dr. Lubak’s
clinic unannounced and appeared only to briefly speak
with his physician in the office lobby. The entirety
of Jones’s interaction with Dr. Lubak consisted of the
physician’s acquiescence to refill a prescription. There
is simply no evidence that Jones was examined, and
therefore treated, that morning. See 29 C.F.R. § 825.113(c).
Ultimately, Jones’s prescription-refill note might be
evidence of his need for continuing treatment—which
only suggests that Jones has a serious health condi-
tion—but, it is not evidence that he received treatment
that required him to be absent from work that morning.
See id. § 825.123(a). Accordingly, we find that Jones
did not receive treatment on the morning of October 1,
and therefore, he was not entitled to take FMLA leave
as a matter of law.


                    III. C ONCLUSION
  For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of C&D
Technologies.




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