                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0571n.06
                               Filed: July 7, 2005

                                          No. 04-1244

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JILL BEAVER,                                    )
                                                )
         Plaintiff-Appellant,                   )
                                                )
v.                                              )
                                                )    ON APPEAL FROM THE UNITED
RGIS INVENTORY SPECIALISTS, INC.,               )    STATES DISTRICT COURT FOR THE
                                                )    EASTERN DISTRICT OF MICHIGAN
         Defendant-Appellee.                    )
                                                )
                                                )
                                                )

Before: GUY, DAUGHTREY, and GIBBONS, Circuit Judges.

         JULIA SMITH GIBBONS, Circuit Judge.                Defendant-appellee RGIS Inventory

Specialists, Inc. (“RGIS”) terminated plaintiff-appellant Jill Beaver’s employment for failure to

return to work in a timely manner following a vacation. Beaver contacted RGIS one day prior to

her expected return to inform her supervisor that she was unable to return to work as scheduled

because she was ill and a doctor had advised her not to fly or return to work “for a few days.”

Beaver brought this action alleging that the termination of her employment violated the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. The district court granted RGIS’s motion

for summary judgment.1 The court also ruled that, even if Beaver had been suffering from a


     1
   Briefs of both parties state that the district court granted RGIS’s motion for summary judgment
because Beaver was not suffering from a serious health condition, and this is consistent with the

                                                1
“serious health condition,” she did not provide RGIS with sufficient notice to trigger FMLA

protection.

       For the following reasons, we affirm the district court’s grant of summary judgment in favor

of RGIS.

                                                  I.

       RGIS provides inventory-counting services to retail stores such as K-Mart, Wal-Mart, and

Home Depot. Beaver was employed by RGIS for fifteen years. Beaver began an approved vacation

on March 22, 2002, and was due back at work on April 3, 2002. While on vacation, Beaver became

ill and contacted her supervisor, Joseph Kowalewski, on April 2 to inform him that she “didn’t feel

good” and that she “needed a couple of days to get better, a few days.” Beaver faxed a doctor’s note

to Kowalewski stating that she should not fly or return to work “for a few days.” The note did not

include the diagnostic information; nor did Beaver inform Kowalewski of her diagnoses. She

merely described her condition as “not feel[ing] good.” Beaver testified in her deposition that she

was diagnosed with acute sinusitis, bronchitis, and an ear infection, was prescribed antibiotics, and

ordered to postpone her flight home due to danger of damage to her ear drum. Beaver’s patient

treatment record from April 2 appears to state that her final diagnosis was sinusitis and diarrhea.




court’s brief oral ruling. However, the order included in the joint appendix states only that the
motion is granted and does not provide any reasoning. While the proper disposition of this case is
so patently obvious that the lack of a reasoned opinion does not hinder our review, typically it is
helpful to the parties and the appellate court for the district court to provide a detailed explanation
of the basis for disposition. See Peck v. Bridgeport Machs., Inc., 237 F.3d 614, 617 (6th Cir. 2001)
(“This reviewing court, and more importantly, the parties, are much better served when, as is the
custom in this circuit, the district court prepares a written opinion explaining its ruling and the
reasoning, factual and legal, in support, especially when the ruling disposes of the case in a final
judgment.”).

                                                  2
The diagnoses of acute sinusitis, acute bronchitis, and acute otitis media (middle ear infection) are

listed on a note from a doctor dated April 10.

        When Beaver attempted to change her flight, she was told that there were no available flights

from her location in Oregon until April 8, 2002. Beaver called Kowalewski to inform him of the

flight complication, but was not truthful about her actual location, instead telling him that she was

in New Orleans, Louisiana. Kowalewski checked flight availability from New Orleans and

challenged Beaver about her location. She admitted that she had not been honest about her location

because she was worried that she had violated company policy by visiting another RGIS employee

in Oregon.2 At this point Kowalewski informed Beaver that he could not approve a return to work

on April 8 and was referring the matter to the personnel department.

        Pamela Rigel, the personnel director for RGIS, informed Beaver that she was not approved

to return a week late and that if she wanted to keep her job she needed to make arrangements for an

earlier flight. Beaver purchased a new airline ticket for $1800.00 and flew back on Sunday night,

April 7. Beaver reported to work on Monday morning, April 8. RGIS personnel department

manager Susan Kingman interviewed Beaver upon her return to RGIS. Beaver stated that she did

not feel well on the day of her return but admits that she would have worked that day had she been

allowed to do so.3 Beaver was discharged following the interview due to her failure to return from

vacation. Beaver’s co-worker, Sarah Harek, who was traveling with her, was also discharged for




    2
   According to appellee’s brief, Beaver’s visit to another company employee did not violate
company rules.
   3
   Beaver’s brief states that she “was not physically able to work starting on Tuesday, April 9,
2002, the day following her forced return.”

                                                 3
failing to return as originally scheduled. Harek was not sick and did not have a medical excuse for

her late return.

        RGIS claims that it had no knowledge of Beaver’s ongoing struggle with a variety of

illnesses until the commencement of the litigation. Beaver testified in her deposition that she had

not recovered from the illnesses two months after her return, had continued going to the doctor, was

continually on medication throughout that time, and was not physically able to work from April 2,

2002, until June 2002. Beaver did not begin a serious job search until March 2003, almost a year

after her termination from RGIS, because of her continuing health problems.

        Beaver brought this suit alleging that the termination of her employment with RGIS violated

the FMLA, 29 U.S.C. §§ 2601 et seq. The district court granted RGIS’s motion for summary

judgment.

                                                   II.

        A district court’s grant of summary judgment is reviewed de novo. Little v. BP Exploration

& Oil Co., 265 F.3d 357, 361 (6th Cir. 2001). The court must “view the evidence and draw all

reasonable inferences therefrom in the light most favorable to the non-moving party.” Id. Summary

judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

        Beaver has failed to produce evidence that she was suffering from a serious medical

condition at the time of her termination, and this failure is fatal to her case. The FMLA mandates

that employers of fifty or more employees allow employees up to twelve weeks of leave within a

twelve-month period if the employee suffers from a “serious health condition that makes the


                                                    4
employee unable to perform the functions of the position of such employee.” 29 U.S.C. §

2612(a)(1)(D). “Serious health condition” is defined under the FMLA as “an illness, injury,

impairment, or physical or mental condition that involves . . . inpatient care . . . or . . . continuing

treatment by a health care provider.” 29 C.F.R. § 825.114(a). Continuing treatment by a health care

provider includes a “period of incapacity . . . of more than three consecutive calendar days . . . that

also involves . . . [t]reatment two or more times by a health care provider . . . or . . . 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. The legislative history of the FMLA makes

it clear that routine, commonplace illnesses of short duration are not covered by the statute.4

        Beaver testified that she became ill while on vacation and “was placed on antibiotics with

acute sinusitis, bronchitis, and ear infection and was ordered not to fly to return to work by her

doctor as it may pop her eardrum.” However, Beaver’s patient treatment record dated April 2, 2002,

does not mention an ear infection or bronchitis. The writing under the final diagnosis heading is

unclear but appears to list sinusitis and diarrhea. There is a doctor’s note, also dated April 2, 2002,

advising Beaver not to fly or return to work “for a few days.” The diagnoses of acute otitis, acute

sinusitis, and acute bronchitis are included in a return to work or school note from a physician in



   4
    Specifically, the Senate Report states:

        The term “serious health condition” is not intended to cover short-term conditions
        for which treatment and recovery are very brief. It is expected that such conditions
        will fall within even the most modest sick leave policies. Conditions or medical
        procedures that would not normally be covered by the legislation include minor
        illnesses which last only a few days and surgical procedures which typically do not
        involve hospitalization and require only a brief recovery period.

S. Rep. No. 103-3, at 30 (1993), reprinted in 1993 U.S.C.C.A.N. 3.

                                                   5
Sterling Heights, Michigan, dated April 10, 2002. There is thus a question whether, at the time

Beaver’s employment was terminated, she had been diagnosed with sinusitis, bronchitis, and an ear

ache as she claims.

       Assuming, however, that Beaver was suffering from sinusitis, bronchitis, and an ear infection

at the time of her termination, those illnesses are all routine, short-term illnesses not covered by the

FMLA. The doctor’s note that Beaver would be incapacitated for only a “few days” supports this

conclusion. Other federal courts have held that bronchitis, sinusitis, and ear infections do not qualify

as serious health conditions. See Beal v. Rubbermaid Commercial Prods. Inc., 972 F. Supp. 1216,

1225 (S.D. Iowa 1997) (holding that an employee’s episode of bronchitis was not a serious health

condition triggering protection under the FMLA); Hott v. VDO Yazaki Corp., 922 F. Supp. 1114,

1128 (W.D. Va. 1996) (stating that sinobronchitis is not a serious health condition and granting

summary judgment to the employer); Brannon v. OshKosh B’Gosh, Inc., 897 F. Supp. 1028, 1037

(M.D. Tenn. 1995) (holding that employee’s gastroenteritis and upper respiratory infection were not

serious health conditions even though the employee went to the doctor and was prescribed

medication because there was no proof that the employee was “incapacitated” for more than three

calendar days). The only case that is helpful to Beaver is Caldwell v. Holland of Tex., Inc., 208 F.3d

671, 674 (8th Cir. 2000), which held that an employee presented sufficient evidence to raise a

question of fact as to whether her son's ear infection incapacitated him for more than three days and

whether her son then received subsequent treatment for his condition.              Caldwell is easily

distinguishable, however, because Beaver presented no evidence of incapacity other than a doctor’s

note advising her not to fly for a “few days.” Beaver was not entitled to FMLA protection because

she was not suffering from a “serious medical condition” at the time of her termination.


                                                   6
       Even if Beaver was entitled to FMLA protection, she did not give RGIS adequate notice of

her need for FMLA leave. Employees are required to provide employers with thirty days notice

when the necessity for FMLA leave is foreseeable and “such notice as is practicable” when the need

for FMLA leave is not foreseeable. 29 U.S.C. § 2612(e)(1). Beaver never requested FMLA leave;

however, as she points out in her brief, “an employee need not expressly state that FMLA leave is

being sought ‘or even mention the FMLA . . .’ 29 C.F.R. § [825.302(c)]. It is sufficient that the

employee makes the employer aware that leave is needed for an FMLA purpose.” The relevant

inquiry is “whether the information imparted to the employer is sufficient to reasonably apprise it

of the employee’s request to take time off for a serious health condition.” Manuel v. Westlake

Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). Beaver’s phone conversations with Kowalewski

and Rigel did not provide RGIS with enough information to conclude that she needed FMLA leave.

She used very general terms when describing her health such as she “didn’t feel good,” was “sick,”

and “needed a couple of days to get better, a few days.” Likewise, the note Beaver provided did not

provide sufficient notice because it stated only that Beaver would “need to put off returning home

(& to work) for a few days.” When Beaver returned to work on Monday, April 8, she did not

indicate that she could not work due to illness. The only reference to her health in the April 8

interview with Kingman is Beaver’s response that she felt a “little bit” better than she did when she

was in Oregon when Kingman asked her if she was feeling better. In sum, RGIS had no reason to

question Beaver’s fitness for work upon her return from Oregon and therefore was not given any

notice of FMLA implications.

       Beaver’s breach of contract claim is also without merit. Beaver uses the RGIS Policy and

Procedure Manual to argue that Beaver was “provided a contract right that enured to the benefit of


                                                 7
both employer and employee that her personal sick days . . . would be required to be used as part

of her right to FMLA in the first instance.” RGIS argues that the introductory page to the manual

clearly states that “the contents and information contained in this handbook are provided for

information only; this is not a contract and does not give rise to enforceable rights or obligations.”

RGIS also points out that Beaver’s complaint “identifies by name only a single cause of action,

‘Violations of the Family and Medical Leave Act of 1993.’” Beaver’s contractual rights argument

is not within the scope of her complaint and, in any event, cannot succeed because the manual does

not create contractual rights.

                                                 III.

       For the foregoing reasons, the judgment of the district court is affirmed.




                                                  8
