                                                [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                      NOV 24, 2008
                          Nos. 08-12827             THOMAS K. KAHN
                      Non-Argument Calendar             CLERK
                    ________________________

               D. C. Docket No. 05-00131-CV-GMF-4

RICHARD J. KNOX,


                                                     Plaintiff-Appellant,

                             versus

CESSNA AIRCRAFT COMPANY,

                                                    Defendant-Appellee,



                    ________________________

                          No. 08-13046
                      Non-Argument Calendar
                    ________________________

               D. C. Docket No. 05-00131-CV-GMF-4

RICHARD J. KNOX,


                                                      Plaintiff-Appellee,
                                        versus

CESSNA AIRCRAFT COMPANY,

                                                                Defendant-Appellant.


                            ________________________

                    Appeals from the United States District Court
                        for the Middle District of Georgia
                          _________________________

                                (November 24, 2008)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Richard Knox challenges the summary judgment in favor of Cessna Aircraft

Company and against his complaint under the Family Medical Leave Act. Cessna

also appeals. We affirm the summary judgment in favor of Cessna and dismiss the

appeal by Cessna.

                                 I. BACKGROUND

      On Saturday, September 3, 2005, Knox was injured while riding a four-

wheel all-terrain vehicle. Knox did not seek medical assistance over the Labor

Day weekend and reported for work at Cessna at 6:00 a.m. on Tuesday, September

6. Later in the day, Knox asked for leave to visit the police station and his

insurance agent to discuss a stolen all-terrain vehicle.

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      On September 7, Knox left work early for an appointment with Greg Parker,

M.D. Knox complained to Dr. Parker of back pain radiating from his left hip and

attributed the discomfort to his accident. Knox did not report for work on

Thursday and underwent a CT scan as ordered by Dr. Parker. On Friday, Dr.

Parker told Knox over the phone that his CT scan revealed no internal injuries.

Knox stated that his pain had improved and asked if he could go bow hunting for

deer on Saturday. Dr. Parker approved the sport, but cautioned Knox to use his

judgment about the extent of his activities. Knox did not seek medical attention

over the weekend.

      On Monday, September 12, Knox returned to Cessna with a doctor’s note

stating that he could resume work with no restrictions. Mid-morning, Knox

complained to Cessna’s nurse that he felt “fuzzy headed” because of a narcotic he

had taken. The nurse advised Knox that he could either take a non-prescription

pain medication and remain at work or obtain a doctor’s note stating that he was

unable to work. Later in the day, Knox asked the Director of Human Resources for

an application for leave under the Family Medical Leave Act. Knox completed the

form and was instructed to have his doctor complete the Certificate of Medical

Provider form and return the form to Cessna. That afternoon, Dr. Parker signed a

note that extended Knox’s return to work date to September 19, 2005.



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      Knox did not appear for work on September 13, 14, or 15. Cessna

employment policy states that “Three days of ‘no call, no show’ absences

(consecutive or within a 12 month rolling period) will result in termination.” After

a peer review hearing, Knox was terminated.

      On September 30, 2005, counsel for Knox wrote a letter to Cessna and

complained that Knox’s termination violated the Family Medical Leave Act. Knox

requested that Cessna reinstate him with full pay. Six days later, Cessna responded

that it would review Knox’s employment file and provide a response. In its

response, Cessna stated that Knox failed to return the Certificate of Medical

Provider form.

      In mid-October, Cessna offered to reinstate Knox to his former position and

rate of pay, but without back pay. Knox refused to return to work without back

pay. Cessna offered to reinstate Knox without a waiver of his claim for back pay.

Knox accepted the reinstatement with the conditions that Cessna allow him to take

a hunting trip, even though he had no leave, and Cessna expunge his disciplinary

record. Cessna renewed its offer to reinstate Knox with the right to pursue his

claim for back pay. Knox later admitted in his deposition that he did not accept the

offer, in part, because he wanted to go on a scheduled hunting trip in November

and he had not accrued sufficient leave to take the trip.



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      In the meantime, on October 18, 2005, Knox had another appointment with

Dr. Parker. Knox complained of back pain, but told Dr. Parker that the pain was

“almost resolved.” Dr. Parker did not observe Knox exhibit any “neurological

symptoms” or “abdominal pain.”

      The next month, Knox filed a complaint against Cessna and argued that the

company interfered with and retaliated against Knox for exercising his rights under

the Family Medical Leave Act. Knox alleged that Cessna denied him leave for a

“serious health condition.” Cessna moved for summary judgment in September

2006 on the basis that Knox was not entitled to damages after Cessna offered to

reinstate Knox in mid-October. The district court denied the motion.

      Cessna deposed Dr. Parker regarding Knox’s treatment. Dr. Parker

explained that he “[s]uspected that most of” Knox’s “tenderness along the upper

left hip area” was attributable to “musculoskeletal pain,” but ordered the CT scan

to rule out a possible intra-abdominal injury. Dr. Parker verified that “his

assessment on [September] 7th was that [Knox] could go back to work on”

Monday, September 12, 2005. Dr. Parker acknowledged that he extended Knox’s

leave later on September 12 based on information that Knox had provided to Dr.

Parker’s nursing assistant over the telephone. Dr. Parker stated that he completed

the Certificate of Medical Provider form, which stated that Knox required three



                                          5
weeks of leave, at the request of his nursing assistant and based on Knox’s request

for additional leave. Dr. Parker verified that he “could not” state “to a reasonable

degree of medical certainty” that Knox had a “serious medical condition that

required [Knox] to be absent from work” on either September 12 or September 19.

      Cessna moved in limine in February 2008 to exclude from evidence the

Certificate of Medical Provider form, the doctor’s note to excuse Knox from work

from September 12 to September 19, 2005, and testimony from Dr. Parker that

Knox suffered a “serious health condition” under the Family Medical Leave Act.

The district court granted the motion. The district court excluded the certificate

and doctor’s note because Dr. Parker’s “opinion” was “unduly biased and lacking

in objectivity.” The court made this finding based on Dr. Parker’s decisions to

release Knox on September 9 for work without restriction, to approve Knox to hunt

deer with a bow, and to sign the certificate based on “self-diagnosis” by Knox

“without benefit of any further medical test or examination.” The district court

concluded that Knox’s condition, which “did not result in a regimen of continuing

treatment,” did not constitute a “serious health condition.” The district court also

found, based on these facts, that Dr. Parker’s “opinion as to [] Knox’s serious

health conditions . . . lack[ed] the foundation and reliability necessary to support

expert testimony” and would not “objectively . . . assist the jury in arriving at its



                                            6
verdict.”

      Cessna moved for summary judgment. Cessna argued that Knox was unable

to prove that he had a “serious health condition” under the Federal Medical Leave

Act. The district court granted the motion.

                          II. STANDARDS OF REVIEW

      We review a summary judgment de novo. Cooper v. Fulton County, Ga.,

458 F.3d 1282, 1285 (11th Cir. 2006). We review evidentiary rulings for abuse of

discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005).

                                 III. DISCUSSION

      Knox makes two arguments on appeal. First, Knox challenges the exclusion

of testimony of Dr. Parker and the Certificate of Medical Provider form signed by

Dr. Parker. Second, Knox argues that he established that he suffered from a

serious health condition under the Family Medical Leave Act. Cessna has also

appealed and argues that, if Knox prevails in his appeal, we should reverse the

denial of its first motion for summary judgment. Both of Knox’s arguments fail

and we dismiss the appeal by Cessna.

 A. The District Court Did Not Abuse Its Discretion By Excluding Testimony From
             Dr. Parker and the Certificate of Medical Provider Form.

      Knox challenges the exclusion of evidence on three grounds. First, Knox

argues that the district court erred by finding that Dr. Parker’s testimony was not

                                          7
reliable. Second, Knox argues that Dr. Parker did not offer an expert opinion and

had sufficient personal knowledge to testify that Knox had a serious health

condition. Third, Knox argues that the district court failed to balance the

prejudicial and probative value of the evidence. These arguments fail.

      The district court did not abuse its discretion by excluding the evidence.

The record establishes that Dr. Parker’s testimony was not reliable. Dr. Parker did

not have personal knowledge to certify that Knox had a serious health condition.

A lay witness may give an opinion that is “(a) rationally based on the perception of

the witness, and (b) helpful to a clear understanding of the witness’ testimony or

the determination of a fact in issue . . . .” Fed. R. Evid. 701. Dr. Parker, as Knox’s

treating physician, admitted that he could not state that Knox had a serious health

condition based on Dr. Parker’s personal observations and his medical findings.

See Henderson, 409 F.3d at 1300. Dr. Parker relied on Knox’s self-diagnosis,

which was conveyed to Dr. Parker by his nursing assistant, to extend the length of

Knox’s medical leave and to certify that Knox required extended leave to recover

from his injury. Knox’s diagnosis conflicted with medical evidence, as well as

statements made by and activities engaged in by Knox. The district court was

entitled to conclude that the admission of Dr. Parker’s testimony and the certificate

would mislead and confuse the jury. See Fed. R. Evid. 403.



                                           8
            B. Cessna Was Entitled to Summary Judgment Against Knox.

      Knox argues that he presented evidence that he suffered from a serious

medical condition under the Family Medical Leave Act. We disagree. A serious

health condition is defined in the Family Medical Leave Act as an injury that

requires “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

Although the Act does not define “continuing treatment by a health care provider,”

the Department of Labor has issued a regulation that explains that the phrase

includes “[t]reatment two or more times by a health care provider . . . under orders

of . . . a health care provider” or “[t]reatment by a health care provider on at least

one occasion which results in a regimen of continuing treatment under the

supervision of the health care provider.” 29 C.F.R. § 825.114(a)(2)(i).

      Knox failed to establish that he suffered from a serious health condition.

Knox has not established that his back injury required repeated or ongoing

treatment. Dr. Parker found that Knox was free to resume normal activities on

Friday September 9 and released him from further treatment. Neither the fact that

Knox reported discomfort to Dr. Parker’s nursing assistant or that Knox scheduled

further visits with Dr. Parker alter the doctor’s assessment. The district court did

not err by granting summary judgment to Cessna.




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                            IV. CONCLUSION

     The summary judgment in favor of Cessna Aircraft Company is

AFFIRMED, and the appeal by Cessna is DISMISSED.




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