                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-3501
BEVERLY STEVENSON,
                                             Plaintiff-Appellant,
                                v.

HYRE ELECTRIC CO.,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
          No. 04 C 7990—Virginia M. Kendall, Judge.
                         ____________
    ARGUED MAY 21, 2007—DECIDED OCTOBER 16, 2007
                    ____________


 Before RIPPLE, WOOD, and EVANS, Circuit Judges.
  WOOD, Circuit Judge. On February 9, 2004, Beverly
Stevenson had an extreme emotional and physical re-
sponse to a stray dog entering her workspace at Hyre
Electric Company. She left work soon after and for the
most part stayed home for the next several days. The few
times she tried to return to work, she felt unable
to function and demonstrated erratic and emotional
behavior. Her coworkers were so concerned that they
eventually locked her out of the building. Then on March
9, 2004, Stevenson was informed by letter that she had
been terminated effective February 25.
  Stevenson claims that Hyre had notice that she was
suffering from a serious health condition and thus vio-
2                                            No. 06-3501

lated her rights under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq., when it fired her.
Despite the unprecedented nature of Stevenson’s trouble-
some behavior following the dog incident, Hyre claims
it was unaware that she might be suffering from a
serious mental health condition. The district court agreed
with Hyre and granted its motion for summary judg-
ment. We see some genuine issues of material fact lurk-
ing in this case, and we therefore reverse and remand
for further proceedings.


                            I
  We review a district court’s decision to grant summary
judgment de novo, and we construe all facts in the light
most favorable to the nonmoving party. Vallone v. CNA
Fin. Corp., 375 F.3d 623, 631 (7th Cir. 2004). Our account
of the facts reflects that perspective.
  Prior to February 9, 2004, Stevenson had no docu-
mented history of misconduct or health problems at Hyre.
All that changed at approximately 10:00 am on February
9, when a stray dog climbed through the window of the
Hyre warehouse where Stevenson worked and ap-
proached her. She immediately felt physical symptoms,
including a headache, a rush of blood to her head, and a
tightening of her neck and back. Stevenson’s supervisor
Mary Cicchetti recounted that immediately after the dog
incident, she entered the office area where Stevenson
worked and found Stevenson very agitated and “spraying
Glade,” a room deodorizer. Upon seeing Cicchetti,
Stevenson began yelling and cursing, screaming that
“f**king animals shouldn’t be in the workplace.” Cicchetti
said that Stevenson was “very intimidating” and belliger-
ent, and that her agitated behavior lasted three or four
minutes.
No. 06-3501                                                 3

   Two hours after the dog incident, Stevenson informed
Hay Lee Yuen, the accounting manager, that she was
ill and needed to go home. She left and went home im-
mediately; she did not go to a doctor’s office or hospital
that day. The next morning, Stevenson left a voicemail
for Cicchetti and said that she “wasn’t feeling well and . . .
wouldn’t be in today.” At that point she went to the
hospital for an unrelated medical test.
  Hyre’s president, Charles Guest, testified in his deposi-
tion that he knew the individual employees who work at
Hyre and that prior to February 9, Stevenson’s behavior
had been satisfactory and that he could not recall any
verbal or written warnings. On February 11, Stevenson
went to her workplace at approximately 7:00 am to
speak with Guest. It was an explosive encounter. Guest
testified that “[Stevenson] charged into my office yelling
and in a very aggressive manner.” He continued, “She
said it was wrong for her to be subjected to this kind of
thing in the office, to have f**king dogs running by her
desk and threatening her, and that management needs
to do something about this.” He tried unsuccessfully to
calm her down, but she continued to scream at him. He
also assured her that every effort would be made to
prevent anything similar from happening in the future.
The conversation lasted eight to ten minutes. Guest
testified that after the incident, other employees came
up to him and made statements such as “What was that
all about?” and “Boy, that was something.”
  The accounting manager, Yuen, overheard part of the
February 11 meeting between Stevenson and Guest.
She reported that she could not make out the entire
conversation but “[Stevenson’s] voice was loud and
sounded like screaming at the president.” She acknowl-
edged that Stevenson sounded “very upset.” After the
meeting with Guest, Stevenson told Cicchetti that “she
could not work” and left the premises.
4                                            No. 06-3501

  Later that day, Stevenson filed a complaint with the
Occupational Safety and Health Administration regard-
ing stray animals at Hyre’s workplace. Stevenson also
went to the emergency room. She was examined by a
doctor after complaining of three days of headaches,
insomnia, anxiety, and loss of appetite following an
“emotionally stressful incident at work.” An EKG test and
CAT scan both came back normal. Stevenson was dis-
charged with a diagnosis of “anxiety and stress” and was
prescribed Ativan.
  The next day, February 12, Stevenson left a message
for Cicchetti stating that she was ill and would not be
coming to work. Later that day she met with a union
representative, Richard Sipple, to discuss the dog in-
cident. During the meeting, Stevenson mentioned that
she was “off sick” but did not elaborate. On Friday,
February 13, and Monday, February 16, Stevenson again
called in sick but gave no additional details about her
condition.
  On February 17, Stevenson went to work at 7:00 am.
Cicchetti had boxed up the contents of Stevenson’s desk
and moved them to another room. Cicchetti claimed that
she did so to accommodate Stevenson’s fear of stray
animals. Stevenson stayed at work for a few hours, but
she was still agitated, completed little or no work, and
ultimately called the police because she believed that
she was somehow being harassed. At approximately
10:00 am, she told Cicchetti that she was not feeling
well and left work. Before leaving, Stevenson left the
hospital’s report of her February 11 emergency room visit
on Yuen’s desk. After Stevenson left, Guest gave Cicchetti
permission to change the locks on the doors of Hyre’s
office. Guest then sent a letter by overnight mail to
Stevenson that stated in part:
    You no longer have any accrued vacation or sick leave
    available. Therefore, any additional leave must
No. 06-3501                                               5

    be governed by Hyre’s Family and Medical Leave
    Policy. Under the provisions of Hyre’s Employment
    Manual, you are required to obtain a medical certifica-
    tion from your physician or other health care provider
    for a serious health condition FMLA leave. If you do
    not do so within fifteen (15) days from the commence-
    ment of your leave or by Tuesday, February 24, 2004,
    your absences will be deemed unexcused and you
    will be terminated from Hyre’s employ.
On February 18, Stevenson again called in sick. She went
to a doctor’s appointment that she had scheduled on
February 13 or 14. There she met with Dr. Mary Jo Liszek,
her primary care physician, and told Dr. Liszek about her
medical concerns. Dr. Liszek prescribed a sleep aid for
Stevenson and scheduled a follow-up visit for February 20.
Stevenson claims that Dr. Liszek told her to stay home
for the next two days.
  On February 20, Stevenson again met with union
representatives and recounted her story once more. She
also gave the representatives the documentation from her
ER visit. Then Stevenson went to her follow-up appoint-
ment with Dr. Liszek. She was seen first by Dr. Mahan, an
associate of Dr. Liszek, to whom she reported that her
anxiety, sleeping difficulties, and headaches had im-
proved. She told Dr. Mahan that she wanted to return to
work, but that she needed a doctor’s note to do so. Dr.
Liszek then saw Stevenson briefly and wrote a note
excusing her absence from February 9 through February
20. The parties agree that this note does not establish that
Stevenson had been instructed by Dr. Liszek not to work
for those days.
  On Monday, February 23, Stevenson did not return to
work. She claims that her union representatives told her
that the union did not want her to return. Sipple recalled
telling Stevenson that she could not return to work until
6                                            No. 06-3501

she had a “doctor’s release.” That day, Sipple and another
union representative met with Guest and Hyre employee
Jim Palm to discuss Stevenson’s situation. Also that day,
Stevenson faxed to the union a copy of the note from
Dr. Liszek; the union passed the note along to Hyre.
  The next morning, Stevenson called Cicchetti and said
that, in keeping with the union’s instructions, she was
not coming to work that day. Later, she changed her
mind and arrived at Hyre at approximately 10:00 am. She
discovered that the locks had been changed, and so she
knocked on the door until Guest answered it. Guest
refused to accept her note from Dr. Liszek; instead, Guest
gave her a box containing her personal belongings “because
she wasn’t coming back into the office.” Later, the union
called Guest, and he told them that the note from Dr.
Liszek was not sufficient. This information was relayed to
Stevenson, and the union advised her to get another
doctor’s note. Stevenson returned to Dr. Liszek and asked
for a note certifying that she could return to work; she
did not, however, mention the FMLA specifically. Dr.
Liszek obliged with a second note purporting to excuse her
through February 24. Stevenson faxed this note to the
union that evening with a cover letter explaining that
Dr. Liszek was willing to answer questions and complete
additional forms if needed. The union then asked Guest
in writing to “[k]indly put forth in writing your reasons
why this [first] release was not enough and let us know
what is needed to return Beverly to work.” Guest never
responded.
  On February 25, the union faxed the second doctor’s note
to Hyre. It is unclear whether the cover letter from
Stevenson was faxed as well. From that point until March
9, Stevenson heard nothing from Hyre and did not contact
anyone at Hyre herself. On March 9, Hyre sent a letter
to Stevenson stating that she had been terminated effec-
tive February 25.
No. 06-3501                                               7

                            II
                            A
  We begin our inquiry with the question whether
Stevenson gave Hyre notice of her need for FMLA leave. If
she did not, then Hyre had no duty to give her this leave.
Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 951
(7th Cir. 2004). Typically, an employee must inform her
employer 30 days in advance that she will need FMLA
leave. 29 C.F.R. § 825.302. When the need for FMLA leave
is not known in advance, however, “an employee should
give notice to the employer of the need for FMLA leave as
soon as practicable under the facts and circumstances
of the particular case.” 29 C.F.R. § 825.303(a). In such a
case, “[i]t is expected that an employee will give notice to
the employer within no more than one or two working
days of learning of the need for leave, except in extraordi-
nary circumstances where such notice is not feasible.” Id.
  Aubuchon explained that the FMLA places the burden of
giving notice on the employee as “the quid pro quo for
the employer’s partial surrender of control over his work
force.” 359 F.3d at 951. On the other hand, the notice
requirement is not demanding:
    The employee’s duty is merely to place the employer on
    notice of a probable basis for FMLA leave. He doesn’t
    have to write a brief demonstrating a legal entitle-
    ment. He just has to give the employer enough infor-
    mation to establish probable cause, as it were, to
    believe that he is entitled to FMLA leave.
Id. at 953. Once that is done, then it becomes “the em-
ployer’s duty to request such additional information from
the employee’s doctor or some other reputable source as
may be necessary to confirm the employee’s entitlement.”
Id.
  Although the notice requirement is not overly formal-
ized, the notice must succeed in alerting the employer to
8                                              No. 06-3501

the seriousness of the health condition. So, for example, in
Aubuchon it was not enough for an employee to inform his
employer that he needed leave because his wife was
pregnant. Id. Had the employee added that his wife was
having “complications,” that “would have sufficed.” Id.
Likewise, “[a] reference to being ‘sick’ ” is insufficient
because “not only [did it] withh[o]ld important information
from the employer but likely threw it off the scent [be-
cause] . . . [c]ertainly it did not suggest to the employer
that the medical condition might be serious.” Collins v.
NTN-Bower Corp., 272 F.3d 1006, 1008-09 (7th Cir. 2001).
This is because FMLA leave is available only for a “serious
health condition” affecting an employee or one of her
family members.
  In this case, taking the facts in the light most favorable
to Stevenson, it is possible that she herself was unaware
that she was suffering from a serious medical condition
until she went to the emergency room on February 11.
Even though she left work feeling ill on February 9 and
called in sick on February 10, she might have thought that
the illness would soon lift. Once she went to the emergency
room, however, she was given a diagnosis of “anxiety”
along with a prescription for anti-anxiety medication,
Ativan. At this point, her obligations under 29 C.F.R.
§ 825.303 were triggered. Yet Stevenson did not give
Hyre any explicit notice of her need for leave within one or
two working days of February 11 (which was a Wednes-
day). Instead, she again called in sick on February 12,
February 13, and (Monday) February 16. Each time, she
said only that she was “ill” and “wouldn’t be in today.” It
was not until February 17 that she left a copy of her ER
discharge with someone at Hyre (assuming for now that
this might have been adequate notice).
  We can find no meaningful difference between the facts
of this case and those of Aubuchon, discussed above. Just
as the plaintiff in Aubuchon had an obligation to tell his
No. 06-3501                                              9

employer that his wife was having pregnancy complica-
tions in order to make his employer aware that he needed
FMLA leave, Stevenson had an obligation to tell Hyre
something more than that she was out sick for a
day—something that might have been explained by a
mundane 24-hour upset stomach. See Burnett v. LFW Inc.,
472 F.3d 471, 479 (7th Cir. 2006) (holding that calling
in sick while providing no additional information is
insufficient for the FMLA).
  Stevenson contends that Hyre’s letter to Stevenson on
February 17 “constitutes an admission that it was aware
of an ‘alleged illness’ and was therefore taking the next
logical step of requesting some kind of certification,” but
we do not see it this way. First, the letter came after the
two-day time period in which Stevenson should have
given Hyre notice of her need for FMLA leave. 29 C.F.R.
§ 825.303(a). Second, if notice could be presumed when-
ever an employer asks an employee if she needs FMLA
leave, then the FMLA notice requirement would be
rendered meaningless. Stevenson does not make the
argument that Hyre’s insistence that she provide certifica-
tion demonstrates that Hyre recognized her need for
FMLA leave, and so we do not consider that interpreta-
tion of Hyre’s actions. At best, Hyre’s letter gave Steven-
son more time to give notice than the statute does, but
it still required that documentation be provided within
15 days of the onset of her leave. Therefore, although
Stevenson did tell Hyre that she was missing work be-
cause of illness, she did not, within the period required
by 29 C.F.R. § 825.303(a), verbally or in writing make
Hyre aware that her illness might trigger its FMLA
responsibilities.


                            B
  Direct notice from the employee to the employer is not,
however, always necessary. Stevenson’s case may go
10                                              No. 06-3501

forward if Hyre had constructive notice of her need for
FMLA leave. In Byrne v. Avon Products, 328 F.3d 379 (7th
Cir. 2003), this court held that either an employee’s
inability to communicate his illness to his employer or
clear abnormalities in the employee’s behavior may
constitute constructive notice of a serious health condition.
Id. at 381-82. “It is enough under the FMLA if the em-
ployer knows of the employee’s need for leave; the em-
ployee need not mention the statute or demand its bene-
fits.” Id. at 382.
  In Byrne, we found such notice when an employee with
four years of highly regarded service started to sleep on
the job for time periods approaching half of his shift. The
employer also learned from a family member that the
employee was “very sick.” When a company representative
finally contacted him directly, the employee could only
mumble several odd phrases. The day after speaking to
the employee’s sister, the company learned that he
had been hospitalized. Under these circumstances, the
court in Byrne concluded that “unusual behavior” alone
can be “enough to notify a reasonable employer that [an
employee] suffered from a serious health condition.” Id.
at 382-83.
  In Stevenson’s case, the district court appears to have
merged the two allowable means of constructive notice
(inability to communicate and clear abnormalities). It must
have thought that Stevenson had to satisfy both, since
it concluded that the Byrne exception could not apply
because “Stevenson . . . maintained an ability to relate her
symptoms and feelings at length.” Byrne, however, held
that “[a] sudden change may supply notice even if the
employee is lucid,” giving the example of an employer
seeing an employee break her arm and concluding that
this observation would give the employer sufficient
notice of a need for FMLA leave without the employee’s
No. 06-3501                                              11

saying a word. 328 F.3d at 381-82. The district court
therefore erred as a matter of law by not considering
Stevenson’s claims of unusual behavior as constructive
notice regardless of her ability to communicate.
  If the record shows that there are disputed issues of
material fact, once we apply the correct legal standard, the
summary judgment for Hyre must be reversed. In
Stevenson’s case, only one of the two approaches recog-
nized in Byrne applies—clear abnormalities—as she does
not claim an inability to communicate. Taking the facts
in the light most favorable to Stevenson, we conclude
that a trier of fact could find that her behavior was
so bizarre that it amounted to constructive notice of the
need for leave. Hyre has not disputed Stevenson’s claim
that she was a “model employee” prior to February 9, 2004.
Her behavior changed dramatically immediately after
the dog incident on February 9, as the testimony of
Cicchetti, Guest, and Yuen bears out.
  Cicchetti also testified about Stevenson’s behavior on
February 17, when she returned to the office and at-
tempted to work. Cicchetti testified that “I tried to ex-
plain to her that we moved her desk so she could close
the door, and she started yelling again,” and that
Stevenson responded “I don’t want to sit in there. I can’t
breathe in there,” and then she called the police.
Stevenson testified about her agitated state during all
three of these encounters. Guest, the company president,
acknowledged that they thought the problem was severe
enough to warrant changing the locks—as he put it,
“[w]e were concerned about Beverly coming into the
workplace.” He testified further, “I was concerned about
having a very angry employee,” and said that this con-
cern was based solely on the incidents that took place
between February 9 and 17.
  On this record, a trier of fact could conclude that
Stevenson’s behavior on February 9, 11, and 17 was so
12                                              No. 06-3501

unusual that it gave Hyre constructive notice of her need
for FMLA leave. Lengthy encounters of yelling and swear-
ing at one’s superiors so severe that a company locks out
an employee with a previously unblemished record for
safety concerns, coupled with that employee’s calling
the police because her belongings have been moved to
another desk, are undeniably unusual and could be
viewed by a trier of fact as unusual enough to give Hyre
notice of a serious mental health condition. Of course, the
factfinder could find that Stevenson just had a bad
temper that erupted during the period in question. The
point here is that this is not a decision the court can make
as a matter of law. (We also note that Hyre insists on
characterizing the February 9 dog incident as involving “a
stray puppy,” which would serve only to make Stevenson’s
subsequent responses to the incident more unusual than
if the incident had involved a large, menacing dog. The
record does not otherwise reveal the size or breed of the
dog.) For these reasons, summary judgment for Hyre
based on Stevenson’s alleged lack of notice of her need
for FMLA leave was inappropriate.


                            III
  Providing notice is not enough to receive FMLA benefits.
An employee must also have (in the “self ” branch of the
statute under which Stevenson is proceeding) a serious
health condition. Haefling v. UPS, 169 F.3d 494, 498 (7th
Cir. 1999). The FMLA itself 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). The FMLA regulations further define
“serious health condition,” stating in relevant part that a
“serious health condition must involve:
No. 06-3501                                              13

   Continuing treatment by a health care provider. A
   serious health condition involving continuing treat-
   ment by a health care provider includes any one or
   more of the following:
     (i) A period of incapacity (i.e., inability to work,
     attend school or perform other regular daily activi-
     ties due to the serious health condition, treatment
     therefor, or recovery therefrom) of more than three
     consecutive calendar days, and any subsequent
     treatment or period of incapacity relating to the
     same condition, that also involves:
           (A) Treatment two or more times by a health
           care provider, by a nurse or physician’s assis-
           tant under direct supervision of a health care
           provider, or by a provider of health care ser-
           vices (e.g., physical therapist) under orders of,
           or on referral by, a health care provider; or
           (B) 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.
29 C.F.R. § 825.114(a)(2). Thus, under this section of the
regulations, an employee must show by a preponderance of
the evidence that she was incapacitated for “more than
three consecutive calendar days,” meaning that she either
could not work for those days or could not perform regular
daily activities, and that she received ongoing treatment
for her condition by a medical professional, either in the
form of multiple doctor’s visits or continuing medication.
  Stevenson easily satisfies the medical treatment require-
ment, as she had an emergency room visit on February 11
and two visits to her doctor, Dr. Liszek, on February 18
and February 20. Her ongoing prescriptions, given to her
by the emergency room doctor and Dr. Liszek, could be
14                                             No. 06-3501

seen as “a regimen of continuing treatment,” meaning
Stevenson might only need to show one doctor’s visit.
  The district court concluded, however, that Stevenson
had failed to present evidence that would show that she
was incapacitated. She needed something indicating either
an inability (1) to work, (2) attend school or (3) perform
other regular daily activities as a result of her serious
health condition. 29 C.F.R. § 825.114(a)(2)(i). The “school”
option does not apply to her, and so we set it aside.
Because Stevenson left work early on Monday, February 9,
2004, and was scheduled to work the remaining days
of that week, in order to qualify under “inability to work,”
she would need to show that she was unable to work on
February 10, 11, and 12 as well, or for any time period of
more than three days prior to February 20, when she
began feeling better. To qualify under the “other daily
activities” option, she would need to show that she was
unable to perform regular daily activities on more than
three consecutive days in that same period. 29 C.F.R.
§ 825.114(a)(2)(i).
  We agree with the district court that Stevenson failed
to create a genuine issue of fact under the third option
provided by the regulations, her ability to perform regular
daily activities. The record reflects that Stevenson engaged
in a variety of activities during the period at issue.
She visited work on February 11, phoned in a complaint
about the dogs to OSHA that afternoon, attended a
meeting at her union’s offices on February 12 about the
incident, returned to work again on February 17, had
another meeting at the union offices on February 20, and
tried to begin working again on February 24 but was
turned away. This means that she must show that she
can meet the first option by showing her inability to work.
  The district court pointed out that the notes from Dr.
Liszek “were not intended to suggest that Plaintiff had
No. 06-3501                                                15

an FMLA-qualifying condition.” But the fact that the
doctor’s statement might have said more about incapacity
does not transform it into a “ ‘negative certification,’ that
is, an affirmative statement by [the plaintiff ’s doctor] that
[the plaintiff ]’s incapacity lasted less than three days.”
Kauffman v. Fed. Express Corp., 426 F.3d 880, 886 (7th
Cir. 2005). In Kauffman, the medical record at issue
appeared to state clearly that the plaintiff was incapaci-
tated; here, in contrast, the written records are incon-
clusive.
   In Stevenson’s favor, Dr. Liszek testified in her deposi-
tion that Stevenson suffered from a “serious medical
condition.” Hyre argues that “serious health condition” is
a “term of art,” and therefore Dr. Liszek’s testimony about
a “serious medical condition” is insufficient for FMLA
purposes. This argument is a bit ridiculous, especially
given the context of the statement. Dr. Liszek said, “Yes,
they [the forms she filled out for Stevenson] were not
FMLA. [Stevenson] did have a serious medical condition,
but it was not—it was not—the form I filled out was not
an FMLA form.” Drawing inferences from this testimony
in the light most favorable to Stevenson, as we must
at this stage, Dr. Liszek was saying she could have
filled out an FMLA form for Stevenson because Steven-
son had a qualifying medical condition, but that she had
not been asked to fill out a form that had “FMLA” printed
at the top.
  Even if we thought that Dr. Liszek’s opinion that
Stevenson had a qualifying condition was too conclusory
to create a triable issue of fact by itself, see Moore v.
J.B. Hunt Transport, Inc., 221 F.3d 944, 952 (7th Cir.
2000) (an ADA case, not an FMLA case), there is more
here. Dr. Liszek testified that the Ativan dosage that had
been prescribed for Stevenson at the ER was a “medium
dose,” not a light dose. After the ER visit, Dr. Liszek
prescribed additional medication for Stevenson. Dr. Liszek
16                                             No. 06-3501

testified that Stevenson’s pulse on February 11, according
to the ER documents, was “high for her.” She noted
that Stevenson complained at her February 18 appoint-
ment that she had a headache that dated back to the
February 9 incident. Dr. Liszek said that on February 18,
“my final evaluation of her was that she had anxiety,”
which matches the ER diagnosis on February 11.
  As for Stevenson’s ability to return to work, Dr. Liszek
stated that on February 20, “[Stevenson’s] medical condi-
tions were more stable.” The doctor did not say one way
or the other whether Stevenson could have worked during
the time she stayed home from work. Dr. Liszek testified,
however, that she did not just blindly fill out the work
excuse form, but “would make my judgment based on, you
know, her illness that I was seeing in the clinic and her
history of the ER visit.” In that context, she noted
that Stevenson presented with anxiety and insomnia, as
well as ongoing anemia and hypertension. Hyre claims
“Dr. Liszek did not attach any time period” for the med-
ical conditions she described, but that is not quite right.
Dr. Liszek stated definitively that “[Stevenson] had
anxiety at the point when I was seeing her.” (Emphasis
added.) This was not an opinion only about Stevenson’s
previous maladies, as Hyre suggests. Thus, Stevenson’s
testimony about the effect of her health condition on her
ability to work does not exist in a vacuum; it is reinforced
by medical records, prescription records, and her doctor’s
testimony.
  Hyre points to the FMLA regulations that state that
“[a]n employee is ‘unable to perform the functions of the
position’ where the health care provider finds that the
employee is unable to work at all or is unable to perform
any one of the essential functions of the employee’s
position within the meaning of the Americans with Dis-
abilities Act.” 29 C.F.R. § 825.115. This regulation, how-
ever, deals with what a medical provider needs to write
No. 06-3501                                               17

down in a certification, not with the underlying defini-
tion of “serious health condition.” It does not say that the
lack of such a written certification is conclusive evidence
that there is no qualifying medical condition or that there
is no other way to prove this point. We conclude, on this
record, that a material issue of fact exists on the question
whether Stevenson did have a “serious health condition.”
It was therefore error to grant summary judgment in
Hyre’s favor.


                             IV
  Stevenson also appeals the denial of her own motion for
summary judgment, claiming that Hyre violated the FMLA
by failing to allow her to cure deficiencies in the certifica-
tion of her serious health condition, failing to allow her
the minimum 15 days it promised to provide that certi-
fication, failing to inform her of her FMLA rights, and
failing to answer questions concerning her FMLA rights
responsively. The district court rejected these claims based
on its conclusion that Stevenson failed to give Hyre
adequate notice. We have concluded only that there are
genuine issues of fact on the notice question, not that
the record establishes as a matter of law that notice
was proper. It would therefore be inappropriate for us
to find that Stevenson is entitled to judgment as a matter
of law, with this critical question still contested. We note,
however, that we agree with the district court that
Stevenson failed to give Hyre notice in her complaint of
her contention that it failed properly to inform her of her
FMLA rights. The district court thus acted within its
discretion when it refused to allow her to raise that
argument for the first time in her summary judgment
motion.
18                                           No. 06-3501

                           V
  Although Stevenson has not demonstrated the absence
of disputed issues of material fact and an entitlement to
judgment as a matter of law, she has presented enough to
survive Hyre’s summary judgment motion on all but one
theory. We therefore AFFIRM the district court’s dismissal
of Stevenson’s claim that Hyre did not inform her of her
FMLA rights, but we REVERSE the district court’s grant of
summary judgment for Hyre and REMAND this case to the
district court for further proceedings on the remaining
claims. Costs on appeal are to be taxed against Hyre.




  EVANS, Circuit Judge, dissenting. Because I am con-
vinced that there are no genuine issues of material fact
in this case, I would affirm the grant of summary judg-
ment that Judge Kendall awarded to Hyre.
  It is, of course, well-understood that in determining
whether a genuine issue of fact exists, courts must view
the evidence and draw all reasonable inferences in favor
of the party opposing the motion, in this case Stevenson.
I part company with the majority, however, as to
whether—by any stretch of the imagination—Stevenson is
entitled to the inferences being granted to her.
  The majority concedes that Stevenson did not properly
provide her employer with direct notice of her need for
FMLA leave. But the majority then proceeds to find that
the employer had constructive notice of Stevenson’s need
for leave, based on an exception to the direct notice
No. 06-3501                                            19

requirement set out in Byrne v. Avon Products, 328 F.3d
379 (7th Cir. 2003). I cannot see how the evidence pre-
sented allows any conceivable inferences that bring
Stevenson’s case within shouting distance of Byrne.
  We said in Byrne that sometimes unusual behavior gives
all the notice that is required to inform an employer that
an employee needs leave. The Byrne case is, in fact, so
dramatic that almost no other conclusion would have been
possible. Byrne, who had previously been a model em-
ployee, began to fall asleep on the job and failed to show
up for work. When his employer telephoned him, his
sister said he was “very sick.” In fact, suffering from
depression, Byrne himself could not speak beyond “mum-
bling several odd phrases.” His relatives took him to a
hospital—after talking him out of a room in which he had
barricaded himself. He began to hallucinate, attempted
suicide, and during a panic attack tried to “flush his
head down a toilet.” To say that Stevenson’s behavior
was comparably unusual to Byrne’s would be to let the
exception swallow the rule. I believe that as a matter of
law, the “Byrne exception” is not applicable, as, by the
way, we found it not to be applicable in Burnett v. LFW,
Inc., 472 F.3d 471 (7th Cir. 2006).
  Although the problem with notice should be con-
sidered dispositive, I am also troubled by the majority’s
conclusion that Stevenson has raised a factual dispute
as to her serious health condition. Stevenson shows that
she visited doctors during the relevant period. One of the
visits, however, was for an unrelated medical test. A
second was to an emergency room where she complained
about a stressful incident at work—presumably the
unwelcome appearance of the dog. The doctors performed
an EKG and a CAT scan, both of which were normal.
She was diagnosed with anxiety and prescribed medica-
tion to calm her nerves. Anxiety comes in all degrees,
however, and Stevenson does not provide information as
20                                              No. 06-3501

to how her anxiety level prevented her from working.
She also visited her own doctor, who later wrote an ex-
cuse for missed work but who never told Stevenson that
her condition required her to stay away from her job.
During this time, Stevenson was able to meet with a
union representative and showed up at Hyre for short
periods of time. It is, of course, possible that Stevenson
was suffering from a qualifying health condition, but my
point here is that she provides no evidence which would
prevent summary judgment on the issue. It is not too
much to expect her to do that.
  Stevenson, who bears the ultimate burden of proof
in this case, was obligated at the summary judgment
stage to come “forward with properly supported argu-
ments or evidence to show the existence of a genuine
issue of material fact.” Treadwell v. Office of Ill. Secretary
of State, 455 F.3d 778, 781 (7th Cir. 2006). This she has
utterly failed to do.
  For these reasons, I respectfully dissent.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-16-07
