           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    Perry v. Jaguar of Troy                      No. 02-1816
        ELECTRONIC CITATION: 2003 FED App. 0459P (6th Cir.)
                    File Name: 03a0459p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                        ARGUED: William S. Stern, Southfield, Michigan, for
                  FOR THE SIXTH CIRCUIT                                 Appellant. Patrice S. Arend, JAFFE, RAITT, HEUER &
                    _________________                                   WEISS, Detroit, Michigan, for Appellee. ON BRIEF:
                                                                        William S. Stern, Southfield, Michigan, for Appellant.
 JEFFREY PERRY ,                   X                                    Patrice S. Arend, Melanie T. LaFave, JAFFE, RAITT,
           Plaintiff-Appellant,     -                                   HEUER & WEISS, Detroit, Michigan, for Appellee.
                                    -
                                    -  No. 02-1816                                          _________________
            v.                      -
                                     >                                                          OPINION
                                    ,                                                       _________________
 JAGUA R OF TROY, assumed           -
 name for Somerset Auto             -                                     RALPH B. GUY, JR., Circuit Judge. Plaintiff, Jeffrey
 Collection, Inc.,                  -                                   Perry, appeals from the grant of summary judgment in favor
           Defendant-Appellee. -                                        of defendant, Jaguar of Troy, in this case brought under the
                                    -                                   Family Medical Leave Act (FMLA). 29 U.S.C. §§ 2601-
                                   N                                    2654. Perry claims that defendant violated the FMLA by
       Appeal from the United States District Court                     refusing to allow him to return to his employment after taking
      for the Eastern District of Michigan at Detroit.                  leave to care for his son who has learning disabilities.
   No. 01-74015—Anna Diggs Taylor, District Judge.                      Specifically, Perry argues that the district court erred when it
                                                                        held that he had not given sufficient notice and that his son
                   Argued: December 2, 2003                             did not have a serious health condition. After review of the
                                                                        arguments, the record, and the applicable law, we affirm.
            Decided and Filed: December 30, 2003
                                                                                                       I.
  Before: GUY and GILMAN, Circuit Judges; REEVES,                         Perry was employed by defendant as an auto parts counter-
                   District Judge.*                                     person when he sought leave in the summer of 2001 to care
                                                                        for his 13-year-old son, Victor Perry. Victor had been
                                                                        diagnosed with learning disabilities, attention deficit disorder
                                                                        (ADD), and attention deficit hyperactivity disorder (ADHD).
                                                                        Victor took medication to treat his impulse control problems.
                                                                        He visited a doctor every six months to check his physical
                                                                        condition and the effect of the drugs.
    *
     The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.

                                 1
No. 02-1816                     Perry v. Jaguar of Troy         3   4      Perry v. Jaguar of Troy                     No. 02-1816

   Victor was certified as “Educable Mentally Impaired.” A          care.” There was no reference to the FMLA or Victor’s
school evaluation noted that he needed to “curb impulsive           special needs, and no medical certification was provided.
behavior.” Victor functioned at a third-grade level in reading      Perry testified in his deposition, however, that he orally told
and a second-grade level in written language skills. Perry          Manarv that he was asking for leave under the FMLA, which
testified that Victor could brush his teeth and feed and dress      he had read about in the employee handbook. Manarv
himself. Victor rode the bus to and from school and attended        “basically said okay,” and there was no discussion about
a class for emotionally and mentally impaired students during       whether his position would be available at the end of the
the school year. When not in school, Victor played video            leave.
games, watched television, and played with neighborhood
kids. He also rode his bike and swam. After school, he                On June 29, 2001, approximately two weeks after Perry’s
stayed with a neighbor or went to the after-school day care         leave began, defendant’s office manager sent a letter to Perry
program.                                                            that stated:

  Prior to 2001, Victor was either watched by his mother or             This letter is to inform you that your leave of absence is
other family members during the summer months. Victor’s                 not considered under The Family and Medical Leave act
mother was unable to watch him in the summer of 2001                    of 1993, please see attached for the eligibility
because of her work schedule, and the family was forced to              requirements.
consider other arrangements. In his affidavit, Perry stated that
Victor must be constantly monitored for safety reasons and to           You currently have benefits through AFLAC, we are
ensure that his behavior is socially acceptable. He also stated         informing them that you are on a leave of absence, and
that they were unable to find affordable day care that would            that they should bill you at your home. This became
meet Victor’s need for full-time attention from a child care            effective on June 18, 2001.
provider in a “very controlled environment.”
                                                                        Please call if you have any questions.
  The defendant’s employee handbook required medical
certification for FMLA leave:                                         At the end of the summer, Perry contacted his supervisor
                                                                    about returning to work. He was informed that his position
  Employees taking a leave under this policy are required           had been filled, and that no other positions were available.
  to provide a medical certification of the condition and the       Perry thereafter brought this action seeking reinstatement and
  need for the leave from the health care provider.                 damages under the FMLA. The district court granted
  Certification forms should be obtained from the Office            defendant’s motion for summary judgment. This appeal
  Manager.                                                          followed.

  Perry testified in his deposition that he told his supervisor,                                   II.
Doug Manarv, at least two months before he wanted the leave
that he needed to take time off to watch Victor. On April 4,           We review the grant of summary judgment de novo. Smith
2001, Perry submitted an Employee Requested Time Off                v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary
Form. Perry gave notice that he would not work from                 judgment is appropriate when there are no issues of material
June 13 until August 27, 2001, for the stated reason of “child      fact in dispute, and the moving party is entitled to judgment
No. 02-1816                      Perry v. Jaguar of Troy       5    6       Perry v. Jaguar of Troy                                No. 02-1816

as a matter of law. FED . R. CIV . P. 56(c). The moving party       that an event described in § 2613(a)(1) has occurred. See
bears the initial burden of showing the absence of a genuine        Brohm, M.D. v. JH Props., Inc., 149 F.3d 517, 523 (6th
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.      Cir.1998).
317, 323 (1986). The burden then shifts to the nonmoving
party to come forward with evidence showing that there is a           Perry argues that his employer was aware of his son’s
genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,       health condition because he discussed it often at work and
477 U.S. 242, 256 (1986). There is no genuine issue for trial       because his son had visited the dealership in the past. Perry
unless the nonmoving party has produced enough evidence to          also testified in his deposition that he specifically mentioned
enable a jury to return a verdict for that party. Id. at 249. In    the FMLA when he discussed the intended leave with his
deciding a motion for summary judgment, the court must              supervisor. On this record, it appears that defendant was
draw all reasonable inferences in favor of the nonmoving            given enough information reasonably to conclude that Perry
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475       was asking for leave under the FMLA. In any event, it is
U.S. 574, 587 (1986).                                               clear that at some point defendant knew, or at the very least
                                                                    presumed, that Perry was requesting leave that might qualify
  Under the FMLA, an eligible employee is entitled to               under the FMLA because it responded by denying FMLA
receive 12 workweeks of leave during any 12-month period            leave. Thus, defendant is not entitled to summary judgment
to, among other things, care for a spouse, son, daughter, or        because of deficiencies in Perry’s notice.
parent if the spouse, son, daughter, or parent has a serious
health condition. 29 U.S.C. § 2612(a)(1). Upon return from          B. Medical Certification
an FMLA leave, the employee is entitled to reinstatement to
the same or an equivalent position without the loss of benefits        Defendant also argues that it properly denied FMLA leave
(with some limited exceptions not applicable here). 29              because Perry did not provide medical certification as
U.S.C. § 2614. It is “unlawful for any employer to interfere        required under the employee handbook. If the employee fails
with, restrain, or deny the exercise of or the attempt to           to provide requested medical certification, the leave does not
exercise, any right provided under” the FMLA. 29 U.S.C.             qualify as FMLA leave. 29 C.F.R. § 825.311(b). The
§ 2615(a)(1).                                                       regulations, however, state that when an employee first asks
                                                                    for FMLA leave, the employer must give specific written
A. Notice                                                           notice of the employee's obligations, including the duty to
                                                                    provide medical certification and the consequences for failing
   The defendant argues that summary judgment was proper            to do so. 29 C.F.R. § 825.301(c)(2).1 In addition, certification
because Perry did not provide sufficient notice since the
written form did not reference the FMLA or Victor’s health
condition. To qualify for FMLA leave, the employee must
give not less than 30-days’ notice if the necessity for the leave       1
                                                                          “Except as pro vided in subp aragraph (ii), if the emp loyer is
is foreseeable. 29 U.S.C. § 2612(e). An employee is not             requiring medical certification . . . , written no tice of the requirement shall
required to expressly assert his right to take leave under the      be given with respe ct to each em ployee notice of a need for leave.”
FMLA. 29 C.F.R. § 825.302(c) (2002). We have recognized             29 C.F.R . § 82 5.30 1(c)(2)(i). Subsequent written notifications are not
that an employee gives sufficient notice when he provides           required if no tice is given after the employee first requests leave and the
enough information for the employer to reasonably conclude          employee handboo k clearly provides that certification is required.
                                                                    29 C.F.R. § 82 5.301(c)(2)(ii).
No. 02-1816                           Perry v. Jaguar of Troy            7    8      Perry v. Jaguar of Troy                      No. 02-1816

must be requested each time it is required.                   29 C.F.R.           health condition, treatment therefor, or recovery
§ 825.305(a).2                                                                    therefrom), or any subsequent treatment in connection
                                                                                  with such inpatient care; or
   Even though the need for medical certification was stated
in defendant’s employee handbook, the regulations required                        (2) Continuing treatment by a health care provider . . . .
defendant again to ask for certification after Perry told his
supervisor he wanted leave to watch his son over the summer.                  29 C.F.R. § 825.114(a) (emphasis in original).
It is unclear on this record whether defendant requested
certification after receiving Perry’s notice and before denying                 “Continuing treatment by a health care provider” includes,
FMLA leave. Because there is no evidence that defendant                       in pertinent part:
requested medical certification pursuant to the requirements
of the FMLA, Perry’s failure to provide medical certification                     (i) A period of incapacity (i.e., inability to work, attend
does not support summary judgment for defendant.                                  school or perform other regular daily activities due to the
                                                                                  serious health condition, treatment therefor, or recovery
C. Serious Health Condition                                                       therefrom) of more than three consecutive calendar days,
                                                                                  and any subsequent treatment or period of incapacity
   Perry has a cause of action under FMLA only if Victor had                      relating to the same condition, that also involves:
a serious health condition that required Perry’s care. See
Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111-                        (A) Treatment two or more times by a health care
12 (6th Cir. 1997). The FMLA defines a serious health                             provider, by a nurse or physician's assistant under direct
condition as an illness, injury, impairment, or physical or                       supervision of a health care provider, or by a provider of
mental condition that involves (1) inpatient care in a hospital,                  health care services (e.g., physical therapist) under orders
hospice, or residential medical care facility; or (2) continuing                  of, or on referral by, a health care provider; or
treatment by a health care provider. 29 U.S.C. § 2611(11).
The regulations go on to define a serious health condition as                     (B) Treatment by a health care provider on at least one
an illness, injury, impairment, or physical or mental condition                   occasion which results in a regimen of continuing
that involves:                                                                    treatment under the supervision of the health care
                                                                                  provider.
  (1) Inpatient care (i.e., an overnight stay) in a hospital,
  hospice, or residential medical care facility, including                        ....
  any period of incapacity (for purposes of this section,
  defined to mean inability to work, attend school or                             (iii) Any period of incapacity or treatment for such
  perform other regular daily activities due to the serious                       incapacity due to a chronic serious health condition. A
                                                                                  chronic serious health condition is one which:

    2
                                                                                  (A) Requires periodic visits for treatment by a health
      “An emp loyer m ust give notic e of a requirement for medical               care provider, or by a nurse or physician’s assistant under
certification each time a certification is required; such notice must be          direct supervision of a health care provider;
written notice whenever required by § 825.301. An employer’s oral
request to an emp loyee to furnish any sub sequent medical certification is
sufficient.” 29 C.F.R. § 825.305(a).
No. 02-1816                     Perry v. Jaguar of Troy      9    10       Perry v. Jaguar of Troy                            No. 02-1816

  (B) Continues over an extended period of time                     In support of its motion for summary judgment, defendant
  (including recurring episodes of a single underlying            presented evidence that Victor was able to attend school and
  condition); and                                                 engaged in the same daily activities in which most children
                                                                  engage: riding the bus to and from school, riding bikes,
  (C) May cause episodic rather than a continuing period          swimming, playing video games, watching television, and
  of incapacity (e.g., asthma, diabetes, epilepsy, etc.).         playing with neighborhood friends. The burden then shifted
                                                                  to Perry to come forward with evidence showing that Victor
  (iv) A period of incapacity which is permanent or long-         was in fact incapacitated.
  term due to a condition for which treatment may not be
  effective. The employee or family member must be                  Perry argues that Victor was incapacitated because he could
  under the continuing supervision of, but need not be            not perform regular daily activities when compared to other
  receiving active treatment by, a health care provider.          children without ADD and ADHD. Perry, however, points to
  Examples include Alzheimer’s, a severe stroke, or the           no evidence to support this conclusory claim that Victor could
  terminal stages of a disease.                                   not perform regular daily activities.3 The fact that a child
                                                                  with learning disabilities does not function at the same level
29 C.F.R. § 825.114(a)(2) (emphasis in original).                 as a child of the same age without learning disabilities sheds
   Perry argues that Victor had a chronic or permanent serious
health condition because he was under the periodic treatment
of a physician. Perry offered evidence that Victor was seeing          3
                                                                         Defendant objected to the do cuments attached to Pe rry’s response
a doctor every six months to check his physical condition and     to the mo tion for summ ary jud gment. After defendant filed its reply brief,
the effect of the medications. Defendant argues that Victor       Perry filed a Supp lemental Affidavit which stated that the documents
was not receiving treatment because he did not see a doctor in    were copies of records from Victor’s school and medical files. Federal
the summer of 2001. Treatment “includes (but is not limited       Rule of Civil Procedure 56 requires the plaintiff to present evidence of
                                                                  evidentiary quality that demonstrates the existence of a genuine issue of
to) examinations to determine if a serious health condition       material fact. Examp les of such evidence include ad missible documents
exists and evaluations of the condition.” 29 C.F.R.               or attested testimony, such as that found in affidavits or depositions. The
§ 825.114(b). Absences attributable to a chronic serious          proffered evidence need not be in admissible form, but its content must
health condition under 29 C.F.R. § 825.114(a)(2)(iii) qualify     be adm issible. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135 , 145
for FMLA leave even if the employee or family member does         (6th Cir. 1997). Defendant argues that the affidavit was untimely and was
                                                                  not sufficient to authenticate the documents. M ost of the documents are
not receive treatment from a health care provider during the      far removed in date from 2001 and, therefore, are not relevant to Victor’s
absence. 29 C.F.R. § 825.114(e).                                  health cond ition in the summer of 2001. Two school reports are dated
                                                                  2000 and 2001. They note that the clarity of Victor’s speech decreases
  Even if Victor’s biannual doctor visits constitute treatment,   during spontaneous speech because of his rapid delivery, but note that one
however, Perry must also present evidence that Victor was         of Victor’s strengths is his ability to communicate thoughts and engage
incapacitated in the summer of 2001. In order to have had a       in conversations with peers and adults. The 2000 repo rt notes “d ifficulty”
                                                                  in gross motor and fine motor coordination, but the 2002 report notes that
serious health condition, whether chronic or permanent,           Victor participates in regular physical education classes. Thus, regardless
Victor must have been unable to work, attend school, or           of whether these documents can b e con sidered on summ ary jud gment,
perform other regular daily activities during the period of       they do not address the question in this case: Did Victo r’s health
Perry’s leave.                                                    condition render him unable to work, attend school, or perform regular
                                                                  daily activities?
No. 02-1816                    Perry v. Jaguar of Troy     11

no light on whether that child can perform regular daily
activities.
   Perry also argues that Victor was incapacitated because he
could not attend a regular day camp. Perry claims that Victor
needed extraordinary supervision. A younger child with no
learning disabilities, however, may also require more
supervision. The comparative amount of supervision a child
needs standing alone does not address the child’s ability to
engage in regular daily activities. The examples of behavior
requiring extra monitoring given by Perry in his affidavit, if
anything, refute Perry’s claim that Victor could not engage in
regular daily activities. Victor was found peeking into the
windows of neighbors, biking on the service drive of a
freeway, and making numerous telephone calls to video game
companies. Even viewing the facts in a light most favorable
to Perry, we cannot find that there is enough evidence in this
record to enable a jury to reasonably conclude that Victor was
incapacitated in the summer of 2001 and, thus, had a serious
health condition qualifying Perry for an FMLA leave.
  AFFIRMED.
