              United States Court of Appeals
                           For the Eighth Circuit

                     ___________________________

                             No. 13-3786
                     ___________________________

                              Kendrick Johnson

                    lllllllllllllllllllll Plaintiff - Appellant

                                        v.

       Wheeling Machine Products; U.S. Steel Tubular Products, Inc.;
                    United States Steel Corporation

                  lllllllllllllllllllll Defendants - Appellees
                                   ____________

                 Appeal from United States District Court
              for the Eastern District of Arkansas - Pine Bluff
                               ____________

                      Submitted: December 11, 2014
                        Filed: February 20, 2015
                             ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

WOLLMAN, Circuit Judge.
       Kendrick Johnson appeals from the district court’s1 grant of summary judgment
in favor of his employer, U.S. Steel Tubular Products, Inc., and related defendants.2
Johnson brought this action under the Family and Medical Leave Act of 1993
(FMLA), 29 U.S.C. §§ 2601-2654, alleging that U.S. Steel retaliated against him for
taking protected FMLA leave, failed to reinstate him after a period of protected leave,
and otherwise unlawfully interfered with his FMLA rights. We affirm, although on
a ground different from that relied upon by the district court.3

                                           I.

       The facts are presented in the light most favorable to Johnson. In May 2004,
Johnson began working at a U.S. Steel plant in Pine Bluff, Arkansas. He was
eventually promoted to a lead position that sometimes required him to drive a forklift.
Johnson was scheduled to work May 12 through May 15, 2011. On May 12, he
informed his supervisor that he was not feeling well. Johnson was suffering from
blurred vision, a stiff neck, back pain, and a “major” headache, and he claims that he
felt as though his head would “explode.” Johnson waited for employee-relations
supervisor Tammara Love to arrive, but when she still had not arrived several hours
into Johnson’s shift, he left her a voicemail, in which he stated that he was not feeling
well and was leaving work to see a doctor.




      1
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
      2
      Johnson also named as defendants United States Steel Corp. and Wheeling
Machine Products. We will refer to all defendants collectively as “U.S. Steel.”
      3
       We may affirm the district court’s grant of summary judgment on any grounds
supported by the record. Evance v. Trumann Health Servs., LLC, 719 F.3d 673, 679
(8th Cir. 2013).

                                          -2-
       Johnson left work and went to a nearby health care clinic, where he saw
physician assistant Stephen Stewart,4 whom he had never seen before. Stewart
diagnosed Johnson with high blood pressure, prescribed him blood-pressure
medication, and told him to follow up with his regular physician. Stewart did not
indicate when Johnson should schedule the follow-up appointment. Stewart gave
Johnson a note, asked him to fill in his own name, and then signed the note, which
stated that Johnson was seen at the clinic and could return to work on May 16, 2011.
Johnson returned to the plant and gave the note to a supervisor, explaining that he
would be back on May 16. Johnson also left Love another voicemail, in which he
stated that he had been taken off work for a few days and that he had left a work
excuse with his supervisor.

       The next day, May 13, Love called Johnson and asked him to come in to
discuss the note from Stewart. She asked him who had written his name on the note,
and he explained that he had filled in his own name at Stewart’s request. Love
instructed him to return to the clinic and get another excuse. Later that day, Johnson
returned with a second note, which a paramedic at the clinic had signed because
Stewart was busy. Love rejected the note, telling Johnson that it was not acceptable
and that he needed to obtain another note that stated the reasons for being off work.
She said that she would prefer if he brought the note back before the end of the day.
U.S. Steel’s attendance policy also required that, under certain circumstances,
employees provide written documentation from their health care providers stating that
they were “totally disabled from working” on the days of their absence, and Love
claims that the note violated this policy, although Love never communicated this to
Johnson. Johnson went to procure a third note, but the clinic would not give a more
detailed explanation for his absence.

      4
        Although the parties describe Stewart as a doctor, his notes and letters indicate
that he is a certified physician assistant. See 29 C.F.R. 825.125(b) (defining “health
care provider” to include “physician assistants . . . authorized to practice under State
law and . . . performing within the scope of their practice as defined under State
law”).

                                          -3-
       According to Love, Johnson was suspended on May 16, 2011, and he was
terminated on May 18. Emails, memoranda, and letters by Love and other agents of
U.S. Steel indicate that Johnson had been suspended and then terminated for altering,
falsifying, or forging the work excuse. From May 12 until the time of Johnson’s
termination, U.S. Steel never provided him with notice of his FMLA rights and
obligations. Nor was such notice included in the employee handbook.

       On May 18, 2011, Stewart faxed new copies of the work excuses to Love and
explained that he had, in fact, given the excuses to Johnson. Later, Stewart provided
a personally signed letter explaining that Johnson had been to see him in the clinic
and that, to his knowledge, none of the work excuses were falsified. Johnson was not
reinstated to his position.

       Sometime after his termination, Johnson saw a physician at his regular doctor’s
office, who found that his blood pressure was normal and who advised him to use
exercise to control it. Johnson did not offer any evidence to show the specific date
on which this follow-up visit took place. Nor did Johnson offer evidence that he had
any further communication or appointments with Stewart regarding treatment for or
updates on his condition.

       Johnson filed this action, alleging violations of the FMLA.5 The district court
granted summary judgment in favor of U.S. Steel, concluding that Johnson had not
provided sufficient notice of his need for FMLA leave and that Johnson had not
established that his employer’s proffered reason for terminating him was pretextual.


      5
       Johnson also asserted a claim that U.S. Steel discriminated against him on the
basis of race in violation of Title VII, 42 U.S.C. § 1981, and the Arkansas Civil
Rights Act. The district court granted summary judgment in favor of U.S. Steel on
these claims, and Johnson has not appealed that ruling.

                                         -4-
                                           II.

        We review a grant of summary judgment de novo. Bosley v. Cargill Meat
Solutions Corp., 705 F.3d 777, 779 (8th Cir. 2013). A movant is entitled to summary
judgment “if 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). The
moving party bears the initial responsibility of informing the district court of the basis
for its motion and identifying those materials, if any, that demonstrate an absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Assuming there has been adequate time for discovery, the court must enter summary
judgment if the nonmovant then “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322.

       We have recognized three categories of FMLA claims arising under 29 U.S.C.
§ 2615(a)(1)-(2) : (i) entitlement claims, in which an employee alleges a denial of a
benefit to which he was entitled under the statute; (ii) discrimination claims, in which
an employee alleges that the employer discriminated against him in the terms and
conditions of employment because the employee exercised rights to which he was
entitled under the FMLA; and (iii) retaliation claims, in which an employee alleges
that the employer took adverse action against him for opposing a practice made
unlawful under the FMLA. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d
996, 1005-06 (8th Cir. 2012). Johnson’s complaint alleges that U.S. Steel interfered
with his FMLA rights, failed to provide him with notice of his rights and obligations
under the FMLA, failed to reinstate him when his leave ended, and retaliated against
him for taking FMLA leave. Although Johnson labels his claims “retaliation” and
“interference” claims, for clarity and consistency with our more recent FMLA cases,
we will refer to them as “entitlement” and “discrimination” claims. See id.




                                           -5-
        To succeed on his entitlement claim for failure to reinstate, Johnson must
establish that he was, in fact, entitled to FMLA leave and reinstatement. See Stallings
v. Hussmann Corp., 447 F.3d 1041, 1050 (8th Cir. 2006) (“In an [entitlement] claim,
an ‘employee must show only that he or she was entitled to the benefit denied.’”
(quoting Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th Cir. 2003))).
Similarly, to succeed on his claim that he was discriminated against for taking leave,
Johnson must show that he was entitled to leave under the FMLA. See Darby v.
Bratch, 287 F.3d 673, 680 (8th Cir. 2002) (noting that an employee “could be
disciplined for taking unpaid leave not covered by the FMLA”). Since Johnson
argues that he was entitled to FMLA leave due to his high blood pressure, both of
these claims are necessarily predicated on the existence of a qualifying serious health
condition. See Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir. 2001)
(“Where absences are not attributable to a ‘serious health condition,’ . . . [the] FMLA
is not implicated and does not protect an employee against disciplinary action based
upon such absences.”); Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195
(8th Cir. 2000) (“Where an employee has not shown his absences to be a result of a
serious health condition, he is not protected by the FMLA.”).

       The FMLA entitles an employee to twelve workweeks of leave during a
twelve-month period if the employee has 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). Under the Department of Labor’s regulations, a serious
health condition is “an illness, injury, impairment or physical or mental condition”
that involves either inpatient care or “continuing treatment by a health care provider
as defined in [29 C.F.R.] § 825.115.” 29 C.F.R. § 825.113(a) (2010). Johnson claims
that he has a serious health condition under the “continuing treatment” prong of the
regulations. A serious health condition involving continuing treatment includes, in
pertinent part:




                                         -6-
      (a) Incapacity and treatment. A period of incapacity of more than three
      consecutive, full calendar days, and any subsequent treatment or period
      of incapacity relating to the same condition, that also involves:

             (1) Treatment two or more times, within 30 days of the first day
             of incapacity, unless extenuating circumstances exist, by a health
             care provider . . . ; or

             (2) Treatment 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.

Id. § 825.115. “Treatment” includes “examinations to determine if a serious health
condition exists and evaluations of the condition.” Id. § 825.113(c). “A regimen of
continuing treatment includes, for example, a course of prescription medication . . . .”
Id. “Whether additional treatment visits or a regimen of continuing treatment is
necessary within the 30-day period shall be determined by the health care provider.”
Id. § 825.115(a)(4).

      Johnson argues that because U.S. Steel did not follow the FMLA’s certification
procedures, it is precluded by our holding in Thorson v. Gemini, Inc., 205 F.3d 370
(8th Cir. 2000), from now challenging the existence of a serious health condition.6
Thorson did not create a per se preclusion rule, however, that would apply in all cases


      6
        Johnson also argues that the serious-health-condition issue is not before us
because U.S. Steel failed to argue the issue in its initial motion for summary
judgment. We disagree. Although U.S. Steel’s arguments regarding serious health
condition were located in its accompanying brief under a heading entitled “FMLA
Retaliation” and were set forth primarily in the context of notice, as explained above,
Johnson’s “retaliation” claim is really a discrimination claim under our precedent, and
U.S. Steel’s argument applies equally to the entitlement and discrimination claims.
U.S. Steel’s brief included arguments that Johnson did not have a serious health
condition at all. Thus, Johnson was required to make a showing sufficient to
establish the existence of a serious health condition.
                                          -7-
in which an employer fails to avail itself of the FMLA’s certification procedures.
Instead, Thorson merely held that an employer could not use medical evaluations
conducted long after the period of incapacity to create a genuine dispute of material
fact over a plaintiff’s incapacity when the plaintiff offered contemporaneous medical
evidence of incapacity. See id. at 376-82; see also Murphy v. FedEx Nat’l LTL, Inc.,
618 F.3d 893, 901-02 (8th Cir. 2010).

       Johnson contends that even if Thorson does not bar U.S. Steel’s challenge, he
has met both definitions of “serious health condition” involving continuing treatment
laid out in § 825.115(a)(1)-(2). Johnson bears the burden of establishing that he had
a serious health condition entitling him to FMLA leave. See Ballato v. Comcast
Corp., 676 F.3d 768, 772 (8th Cir. 2012). Johnson first argues that because he was
treated for high blood pressure on May 12 and then treated for a second time at his
regular doctor’s office after his termination, the definition under (a)(1) (the “two-
treatments definition”) is met. But Johnson has offered no evidence that his follow-
up visit occurred within thirty days of May 12—his first day of incapacity—as the
regulations require. See 29 C.F.R. § 825.115(a)(1). In his deposition, Johnson stated
that he could not recall the exact date of his follow-up appointment, only that “it was
very shortly after [his] termination.” Johnson’s affidavit provides no additional
details about the timing of the follow-up appointment.

       In addition, Johnson stated that Stewart did not indicate a time period within
which he should follow up with his regular doctor. He therefore has not shown that
Stewart, his health care provider, determined that a second visit was necessary within
thirty days, as the regulations require. See id. § 825.115(a)(4); FMLA Final Rule, 73
Fed. Reg. 67,934, 67,948 (Nov. 17, 2008) (explaining that paragraph (4) was added
to clarify that it is the health care provider, rather than the employee, who determines
not only whether an additional visit is necessary, but when the second visit should
occur). Vague assertions about a follow-up appointment without specificity as to its
timing are not sufficiently probative to permit a finding in Johnson’s favor and thus

                                          -8-
are insufficient to establish a genuine dispute of material fact on the question whether
Johnson’s condition meets the two-treatments definition.

       Johnson also points out that he was treated for high blood pressure, received
prescription medication, and was instructed to follow up at some point with his
regular doctor, and he argues that those facts meet the definition in § 825.115(a)(2)
(the “regimen definition”). A course of prescription medication can qualify as a
“regimen of continuing treatment.” 29 C.F.R. § 825.113(c). Thus, a single treatment
by a health care provider resulting in a prescription, coupled with the requisite period
of incapacity, can establish a serious health condition under the regimen definition.
As the regulation makes clear, however, the regimen of continuing treatment—in this
case, a course of prescription medication—must also be “under the supervision of the
health care provider.” Id. § 825.115(a)(2).

       We believe that the supervision requirement must be given effect. To interpret
the regulation as requiring only a single visit to a health care provider, followed by
a course of prescription medication, would be to read the “supervision” language out
of the provision. The supervision language has been part of the regimen definition
since the interim regulations were implemented in 1993. See FMLA Interim Final
Rule, 58 Fed. Reg. 31,794, 31,817 (June 4, 1993). When the Department of Labor
promulgated final rules in 1995, it clarified that a “regimen of continuing treatment”
includes a regimen of prescription medication because “[i]t is envisioned that a
patient would be under continuing supervision in this context, for example, where the
patient is advised to call if the condition is not improved.” FMLA Final Rule, 60 Fed.
Reg. 2180, 2195 (Jan. 6, 1995).

       As the plain language of the regulation and the regulatory history demonstrate,
that a health care provider prescribes medication does not necessarily mean that the
provider is “supervising” the prescription regimen. By requiring that the health care
provider supervise the regimen, the regulation helps to ensure that minor conditions

                                          -9-
will fall outside the FMLA’s coverage, as Congress intended. See S. Rep. No. 103-3,
at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30 (explaining that the term “serious
health condition” is not intended to cover short-term conditions or minor illnesses).
If a person’s health condition is indeed “serious,” it follows that the patient’s regimen
of continuing treatment would involve either supervision—for example, a phone call
with the health care provider to communicate updates on the patient’s condition and
progress—or a follow-up appointment soon after the first visit (which, if fulfilled,
could satisfy the two-treatment definition).

       “Supervision” is defined as “the action, process, or occupation of supervising;
esp : a critical watching and directing (as of activities or a course of action).”
Merriam-Webster’s Collegiate Dictionary (10th ed. 1998). To “supervise” is to
“superintend” or “oversee.” Id. Stewart did not oversee, watch, or direct any part of
Johnson’s treatment regimen; he simply prescribed Johnson medication and sent him
on his way. Johnson does not claim that, after receiving his prescription, he followed
up with Stewart regarding his treatment, in person or by phone. Furthermore, there
is no evidence that Stewart advised Johnson to call him if complications arose or his
condition did not improve.

       Nor did any physician at Johnson’s regular doctor’s office supervise a regimen
of continuing treatment. First, as explained above, it is unclear when Johnson visited
his regular doctor’s office and whether he was still on his prescription medication at
the time. Second, at Johnson’s follow-up appointment, his prescription was not
renewed, and he was instructed instead to control his blood pressure with exercise.
Under the regulations, exercise does not constitute a “regimen of continuing
treatment.” See 29 C.F.R. § 825.113(c) (explaining that “bed-rest, drinking fluids,
exercise, and other similar activities that can be initiated without a visit to a health
care provider” are not sufficient). Thus, no health care provider was supervising
Johnson’s prescription regimen, and he did not undergo “a regimen of continuing
treatment under the supervision of the health care provider.” Accordingly, Johnson

                                          -10-
has not met his burden of establishing a genuine issue of material fact on the issue
whether he met the regimen definition for a serious medical condition.

       Johnson asserts a number of arguments to support an alternative theory of
entitlement liability. He argues, for example, that U.S. Steel’s requirement of
immediate certification from a health care provider stating that he was “totally
disabled from working” and its attempt to send him to a company doctor were
unlawful under the FMLA.7 He claims that because the work excuse was the reason
for his termination, those requirements prejudiced him. To succeed on this claim,
however, Johnson must be able both to demonstrate harm and to draw a connection
between the requirements and a resulting deprivation of his FMLA rights. See
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002) (holding that
employees bear the burden of proving “real impairment of their rights and resulting
prejudice”). Assuming, without deciding, that U.S. Steel’s requirements exceeded
that which an employer may permissibly require from employees taking FMLA leave,
Johnson’s failure to demonstrate that he was entitled to FMLA leave renders moot his
argument that those requirements were unlawful under the FMLA.

       Johnson also claims that U.S. Steel failed to provide him with notice of his
rights and obligations under the FMLA. Assuming this is true, Johnson must show
that U.S. Steel’s alleged failure to provide him with this information prejudiced him.
Technical violations of the FMLA are not actionable unless they harm the employee.
See, e.g., id. at 88-91; Bellone v. Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418,


      7
        The FMLA regulations provide a process for employers to procure
certification of a serious health condition from the employee’s health care provider,
but the employee typically has fifteen days to return the requested certification. See
id. § 825.305(a)-(b). Furthermore, the employer may require certification that an
employee cannot perform the essential functions of the job. Id. § 825.306(a)(4).
There is nothing in the regulations that requires the certification to state that the
employee is “totally disabled from working.”
                                        -11-
423 (1st Cir. 2014). Johnson has not demonstrated how any alleged technical
violations could have prejudiced him if his condition did not qualify him for FMLA
leave in the first place.

       Because Johnson has no additional arguments showing that he has a serious
health condition, he has failed to offer evidence sufficient to avoid summary
judgment. We therefore need not consider the parties’ arguments regarding the
sufficiency of Johnson’s notice to the employer and the reasons for Johnson’s
termination.

      The judgment is affirmed.
                     ______________________________




                                      -12-
