In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1400

Julie A. Rager

Plaintiff-Appellant,

v.

Dade Behring, Inc.,

Defendant-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CV 0670--John C. Shabaz, Chief Judge.


Argued December 9, 1999--Decided April 10, 2000




  Before Posner, Chief Judge, and Coffey and Manion,
Circuit Judges.

  Posner, Chief Judge. The Family and Medical
Leave Act entitles an eligible employee to up to
12 weeks of leave during any 12 month period
because of "a serious health condition." 29
U.S.C. sec. 2612(a)(1)(D). The employer may
require certification from the employee’s
physician (or other health care provider) that
the employee indeed has such a condition, 29
U.S.C. sec. 2613(a), but if he does so he must
(if the health condition was unforeseeable) give
the employee at least 15 calendar days in which
to submit it. 29 C.F.R. sec. 825.305. (The
employer can fix a more generous deadline if he
wants, 29 U.S.C. sec. 2613; 29 C.F.R. sec.
825.305(b)--can, indeed, if he wants, dispense
with the requirement altogether. See Thorson v.
Gemini, Inc., No. 99-1656, 2000 WL 236404, at *7
(8th Cir. Mar. 3, 2000).) Although the
regulations contain a sample certification form,
29 C.F.R. sec. 825 app. B, they do not require
the employer to use it; but the employer is
required to notify the employee promptly and in
writing of the 15 day deadline and the
consequences of not complying with it. sec.sec.
825.301, .305. This suit alleges a violation of
the 15 day rule. The district judge granted
summary judgment for the defendant, and so we
must construe the facts as favorably to the
plaintiff as the record permits.

  On December 15, 1997, Julie Rager, an FMLA-
eligible employee of Dade Behring, became
scheduled to have surgery a week later to excise
an infected gland. She reported her impending
absence for the surgery to her immediate
supervisor the same day, and three days later
discussed the matter with both her supervisor and
a member of the company’s human resources staff.
She was told she’d be eligible for regular sick
leave, or for paid short-term disability leave
once she had 15 continuous days of absence, and
she was given a form to complete if she thought
she would qualify for the disability leave. The
form required medical documentation. It was also
explained to her that she might be eligible for
longer, though unpaid, leave under the Family and
Medical Leave Act, and so she was given a
"Request for Family Leave" form as well and told
that if she decided to seek family leave she
would have to fill out still another form, namely
a "Certification of Health Care Provider" form.
She was not given that form, though it was made
clear to her that she couldn’t receive either
short-term disability leave or family leave
without medical documentation.

  She dropped off her completed "Request for
Family Leave" form on December 20 but didn’t
provide any medical documentation. The surgery
was performed as scheduled on December 22, and
the following day, still not having received any
medical documentation from Rager, Dade Behring
sent her a certified letter repeating the
requirement of medical documentation and pointing
out that the documentation required by the short-
term disability form would suffice. The December
23 letter further informed her that unless she
submitted the required documentation by January
12 she would be fired because of the number of
unexcused absences from work that she would have
accrued by then.

  On December 29 the company sent her the
"Certification of Health Care Provider" form
because she was "requesting a medical leave under
the Family and Medical Leave Act." A letter sent
her two days later reiterated that she must
submit any required medical documentation by
January 12. The deadline passed without her
responding, and so she was fired.

  Rager argues that the 15 day period of notice to
which the Act entitled her began to run on
December 31 because that’s when she received the
"Certification of Health Provider" form; and she
was terminated fewer than 15 days later. The
company argues that the 15 day period began when
Rager requested family leave on December 19, and
so ended well before January 12. Neither is
correct. Remember that the Act does not require
the employer to request medical documentation on
a particular form. All that is required is that
the employee be informed in writing that he or
she has 15 days in which to submit proof of a
serious health condition, and of the consequences
if it is not submitted within the deadline, which
in this case was termination because in the
absence of an entitlement under the Family and
Medical Leave Act the plaintiff had no excuse for
being absent from work from December 22 on.

  She was never told in writing in so many words
that she had 15 days to submit the medical
documentation required for family leave, and it
is disputed whether she requested family leave on
December 19. But the December 23 letter, by
giving her a deadline of January 12 for
submission of all required medical documentation
whatever form of leave she was seeking, gave her
all the information that the regulations required
her to have, as well as more time to submit the
documentation than the law requires. She had been
told that the medical documentation required for
short-term disability leave would suffice for
family leave as well and had been given more than
15 days to furnish that documentation. She knew
everything that the Act required that the
employer tell her.

  No doubt, however, like most other limitations
periods, the 15 day deadline for submitting
medical documentation, or whatever longer
deadline the employer fixes, can be tolled, for
example by conduct by the employer that is deemed
to equitably estop him to plead the expiration of
the deadline as a defense to liability under the
Act. Had Dade Behring told Rager to forget about
the January 12 deadline it had set--told her that
she didn’t have to submit her medical
documentation until January 13--it could not have
fired her for failing to submit it by January 12.
Rager mentions equitable estoppel on one page of
her brief, but has made no effort to establish
its elements, and it is unlikely that she could
do so. It had been made clear to her at the
outset that she had to furnish medical
documentation by January 12 or lose her job. And
when it sent her the "Certification of Health
Care Provider" form, Dade Behring did not say or
hint that she had additional time to complete and
submit it. She doesn’t even argue that she relied
on her (mis)understanding of the law as giving
her 15 days from the receipt of the form, or that
she even knew of such an entitlement. Yet without
reliance both actual and reasonable, there can be
no finding of equitable estoppel. Level 3
Communications, Inc. v. Federal Ins. Co., 168
F.3d 956, 959 (7th Cir. 1999); Hentosh v. Herman
M. Finch University of Health Sciences/The
Chicago Medical School, 167 F.3d 1170, 1174 (7th
Cir. 1999); Athmer v. C.E.I. Equipment Co., 121
F.3d 294, 296-97 (7th Cir. 1997); Paramount
Aviation Corp. v. Agusta, 178 F.3d 132, 147 n. 12
(3d Cir. 1999).

  Another tolling provision that might come into
play, equitable tolling, does not require any
misleading conduct by the defendant, only that
the circumstances be such that the plaintiff
could not reasonably have been expected to act
within the deadline. E.g., Taliani v. Chrans, 189
F.3d 597 (7th Cir. 1999); Athmer v. C.E.I.
Equipment Co., supra, 121 F.3d at 297; Santa
Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th
Cir. 2000); Smith-Haynie v. District of Columbia,
155 F.3d 575, 579 (D.C. Cir. 1998). This tolling
provision is actually in the regulations, 29 CFR
sec. 825.305(b), and so by implication equitable
estoppel is as well, which is merely an
aggravated form of equitable tolling. But
equitable tolling is not argued and would not
avail Rager if it were. She has given no reason
why she could not have submitted the required
medical documentation by January 12, or for that
matter on the day of the surgery, December 22,
when the surgeon told her she couldn’t return to
work for four weeks. There is no suggestion that
during the period of her convalescence following
the operation she was physically or mentally
disabled in the slightest from attending to the
paperwork requirements incidental to the
operation. Even so, the form in which Dade
Behring communicated to her the 15 day deadline
was clumsy and potentially confusing; but she
does not argue that she didn’t understand, well
before the 15 day period of required notice began
to run, that she had to get the medical
documentation to Dade Behring by January 12 in
order to be eligible for family leave.

Affirmed.
