                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0433p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                    X
                              Plaintiff-Appellant, -
 LINDA K. BRUMBALOUGH,
                                                     -
                                                     -
                                                     -
                                                         No. 04-5543
         v.
                                                     ,
                                                      >
 CAMELOT CARE CENTERS, INC.,                         -
                             Defendant-Appellee. -
                                                    N
                     Appeal from the United States District Court
                  for the Eastern District of Tennessee at Knoxville.
                   No. 03-00206—R. Leon Jordan, District Judge.
                                           Argued: July 29, 2005
                                 Decided and Filed: November 2, 2005
             Before: MOORE and COLE, Circuit Judges; WISEMAN, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Carol S. Nickle, NICKLE & LaFEVOR, Knoxville, Tennessee, for Appellant. Robert
L. Bowman, KRAMER, RAYSON, LEAKE, RODGERS & MORGAN, Knoxville, Tennessee, for
Appellee. ON BRIEF: Carol S. Nickle, James R. LaFevor, NICKLE & LaFEVOR, Knoxville,
Tennessee, William O. Bush, LAW OFFICES OF WILLIAM BUSH, Cookeville, Tennessee, for
Appellant. Robert L. Bowman, KRAMER, RAYSON, LEAKE, RODGERS & MORGAN,
Knoxville, Tennessee, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        THOMAS A. WISEMAN, JR., District Judge. Linda K. Brumbalough (“Brumbalough”),
Plaintiff-Appellant, was employed as the State Clinical Director by Camelot Care Centers, Inc.
(“Camelot”). When she was terminated from her employment after taking a leave under the Family
and Medical Leave Act (“FMLA”), Brumbalough filed this action against Camelot claiming that her
termination was in violation of the FMLA.
      On the parties’ cross-motions for summary judgment, the district court granted summary
judgment to Camelot, finding that Brumbalough was not on FMLA leave at the time she was

        *
           The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee,
sitting by designation.


                                                        1
No. 04-5543           Brumbalough v. Camelot Care Centers, Inc.                              Page 2


terminated and that Brumbalough had failed to submit a proper “fitness-for-duty” certification,
which was needed before she could return to work. The district court alternatively concluded that
even if Brumbalough had submitted a proper certification, Camelot had no obligation under the
FMLA to reinstate her because she was unable to perform the essential functions of the State
Clinical Director position. Later, Brumbalough also attempted to amend her complaint to add
emotional distress damages. The district court denied Brumbalough’s motion to amend.
        For the reasons set forth below, we AFFIRM the district court’s denial of Brumbalough’s
motion for partial summary judgment and REVERSE grant of summary judgment to Camelot. We
AFFIRM the district court’s denial of Brumbalough’s motion to amend and REMAND the case for
further proceedings.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Camelot provides treatment, care, and placement for abused and neglected children in the
custody of state Department of Children Services. It also provides counseling to non-custodial
children and to troubled families. Camelot has five local offices in Tennessee and also operated one
residential treatment center during Brumbalough’s employment. Each local office has a Clinical
Director, who is responsible for the treatment needs of the children assigned to the office.
        Brumbalough was hired as a Clinical Director in October 1997 and was assigned to the local
office in Oak Ridge, Tennessee. Her responsibilities included admission of children into the
program, treatment evaluations, recruiting and training of foster parents, monitoring the movement
of children in the program, supervision of staff and the clinical program, chart auditing, and event
planning.
        In July 2000, Brumbalough was promoted to the position of State Clinical Director. As the
State Clinical Director, Brumbalough supervised Clinical Directors of the five Tennessee offices and
the residential treatment center. This entailed answering questions from the local Clinical Directors
regarding admissions, evaluations, and placement of children. Brumbalough also filled in as the
Clinical Director for the local offices during temporary vacancies. In 2001, Brumbalough was
traveling almost every day and worked on paperwork on the weekends. Consequently,
Brumbalough worked over sixty hours a week. As the State Clinical Director, Brumbalough was
responsible for training new employees and was also responsible for handling emergencies involving
children under Camelot’s care. Because of such responsibilities, Brumbalough was required to be
on call twenty-four hours a day, seven days a week.
        On June 11, 2001, Brumbalough sent an email to Julie Tesore, the Program Director of the
Brentwood Office, informing her that she was having some health problems and she needed to cut
back on her hours down to 40-45 hours per week. Following her appointment with her doctor, Ted
Stallings, Brumbalough told Camelot that she was recommended to take the rest of the week off.
On June 17, 2001, Brumbalough informed Camelot of her intent to have her doctor sign the FMLA
certification forms, since she was having more health problems and would need to take more time
off. Gretchen Jolly, Director of Human Resources, sent an FMLA Certification form to
Brumbalough. The Certification from Dr. Stallings provided that Brumbalough was presently
incapacitated and that she would need about two to three months to recover. Brumbalough’s FMLA
leave was approved as of June 11, 2001. The twelve-week period of FMLA leave, if taken in full,
was to expire on September 11, 2001.
       Camelot sent Brumbalough an “Employer Response Form for FMLA leave” after her leave
request, which stated that Brumbalough was to inform Camelot of her status every thirty days, that
Brumbalough was required to present a fitness-for duty certification prior to being restored to
No. 04-5543           Brumbalough v. Camelot Care Centers, Inc.                                  Page 3


employment and that she would need recertification from her physician after two months in order
to get approval for further FMLA leave because her doctor was vague on her return to work date.
        On July 27, 2001, Brumbalough sent an email to Michele DiSorbo, Camelot’s National
Clinical Director, informing her that she felt ready to come back to work in “the next week or so.”
Ms. Jolly sent Brumbalough a letter on July 31, 2001, acknowledging Brumbalough’s request to
return to work and requesting that she provide a fitness-for-duty certification no later than August 7,
2001. The letter said, “we required that you provide us with a date certain for your return. We also
require a certification letter from your physician that you are indeed fit for duty to return to your old
job. I have enclosed a letter for your doctor to review and sign so that we can adequately assess
your planned return to full-time employment.” (J.A. at 102.) The letter also included a copy of
Brumbalough’s job description and procedures. Dr. Stallings was asked to read the statement
contained in the letter, put a date that Brumbalough could return to work, sign it and send it back
to Camelot. Brumbalough received the letter on August 4, 2001.
       On August 3, 2001, Brumbalough had an appointment with Dr. Stallings and he provided
her with a handwritten note on a prescription pad stating, “She may return to work on 8/13/01. She
should only work a 40-45 hour week and limit her out-of-town travel to 1 day per week.” (J.A. at
109.) Brumbalough claims that she faxed this note to Camelot; Camelot denies receiving it.
        On August 8, 2001, Ms. Jolly mailed another letter stating that Camelot had not received a
response to its request for a fitness-for-duty. The letter set a new deadline of August 10, 2001, and
stated that if Camelot did not get the certification by August 10, 2001, it would consider
Brumbalough’s employment with Camelot terminated and would proceed to fill her position. This
letter was delivered on August 9, 2001.
       Brumbalough sought the assistance of attorney Kevin Shepherd in an attempt to get an
extension of time for submitting the paperwork from Dr. Stallings. Upon Mr. Shepherd’s request,
Ms. Jolly extended the deadline for Brumbalough to August 15, 2001. On August 10, 2001,
Brumbalough received another overnight letter from Ms. Jolly, which confirmed the extended
deadline of August 15, 2001 and stated if Brumbalough was unable to report for duty on or before
Wednesday, August 15, 2001 with the fitness-for-duty certification, Camelot would consider her
employment terminated. Brumbalough failed to submit the certification by this new deadline and
was informed of her termination by a letter dated August 17, 2001.
         On August 18, 2001, Dr. Stallings prepared a letter which stated that Brumbalough may now
return to work with certain modifications such as limiting her out-of-town travel to once a week and
not working more than 45 hours a week. The letter indicated that the restrictions were expected to
last for the next two months, at which time she would be reevaluated. Brumbalough was provided
with this letter on August 22, 2001. Ms. Jolly testified that Camelot never received it and
Brumbalough testified that she could not say for sure if anyone sent the letter to Camelot.
         On June 29, 2001, which was during Brumbalough’s absence, Camelot placed an ad for the
Clinical Director position for the Brentwood office in the Tennessean, a local newspaper. Kristi
Buckley, the Tennessee State Director of Programs, testified that the advertisement in the paper was
for a local Clinical Director position but Camelot kept in mind the prospect that Brumbalough might
not be able to return as State Clinical Director as applicants were interviewed. Donna Fisher was
interviewed for the local Clinical Director position and was ultimately offered the dual position of
Clinical Director for the Brentwood office and State Clinical Director on August 16, 2001. Ms.
Buckley testified that due to an upcoming corporate merger, Ms. Fisher was hired to fill both
positions until Camelot’s new corporate structure was settled. Ms. Fisher started at Camelot on
September 10, 2001.
No. 04-5543           Brumbalough v. Camelot Care Centers, Inc.                                Page 4


        Ms. Buckley testified that Camelot classified the State Clinical Director as “salaried exempt”
because that person must be on call 24/7 and usually the position required a workweek of 50-60
hours. Ms. Buckley also confirmed that the same is true for the Clinical Director’s position because
they are also on call 24/7, subject to call out and are expected to be in the office during the day to
handle the nine-to-five functions. Ms. Jolly did state, however, that the State Clinical Director
would not need to work sixty plus hour workweeks on a regular basis if Camelot was staffed
properly and did not have the vacancies in the Clinical Director positions for the local offices.
However, she testified that she could not guarantee that Brumbalough was not going to work over
forty-five hours a week due to Camelot’s staffing problems. At the time Brumbalough was
terminated, there were vacant clinical director positions in a couple of local Camelot offices.
        On April 11, 2003, Brumbalough filed suit against Camelot, alleging that Camelot had
interfered with her rights under the FMLA by terminating her while she was on FMLA leave and
refusing to reinstate her. On December 19, 2003, Camelot filed a motion for summary judgment
and, on December 31, 2003, Brumbalough filed a motion for partial summary judgment on the issue
of liability. On January 23, 2004, Brumbalough filed a motion to amend her complaint to add a
claim for emotional distress under the FMLA. The district court denied Brumbalough’s summary
judgment motion, granted Camelot’s motion and subsequently denied Brumbalough’s motion to
amend her complaint dismissing this action. This timely appeal on the district court’s decision on
all motions ensued.
                                  II. STANDARD OF REVIEW
A. Motion for Summary Judgment
       We review a district court’s order granting summary judgment de novo. Smith v. Ameritech,
129 F.3d 857, 863 (6th Cir.1997).
       Summary judgment is proper where 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 the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c). The court must view the evidence and draw all reasonable inferences therefrom in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S.
574, 587-88 (1986).
        However, the nonmoving party is not entitled to a trial merely on the basis of allegations.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmoving party must come forward with
some significant probative evidence to support its claim. Id. If the nonmoving party fails to make
a sufficient showing on an essential element, which it has the burden of proof, the moving party is
entitled to summary judgment. Id. at 323.
        After reviewing the evidence, the court must determine whether sufficient evidence has been
presented to make the issue of fact a proper jury question. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The facts must be such that if they were proven at trial, a reasonable jury
could return a verdict for the non-moving party. Id. at 248. If the court concludes that a reasonable
jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it
may enter a summary judgment.
B. Motion to Amend Complaint
        Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a complaint
shall be freely given when justice so requires. Fed. R. Civ. P 15(a). In deciding whether to grant
a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party,
bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue
No. 04-5543           Brumbalough v. Camelot Care Centers, Inc.                                Page 5


prejudice to the opposing party, and futility of amendment. See Coe v. Bell, 161 F.3d 320, 341-42
(6th Cir. 1998) (citing Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.1994) (citations omitted)).
       We review the district court’s decision to deny the plaintiff’s motion to amend the pleadings
for abuse of discretion. Dubuc v. Green Oak Township, 312 F.3d 736, 743 (6th Cir. 2002).
However, when the district court bases such a denial on the fact that the amendment would be futile,
we review the decision de novo. Id. at 744.
                                          III. ANALYSIS
A. The FMLA
        The FMLA requires certain employers to provide their employees with up to twelve weeks
of unpaid leave in the event that the employee has a serious medical condition. 29 U.S.C.
§ 2612(a)(1)(D). However, this entitlement is not without restrictions. The employer may require
the employee to submit a medical certification of the employee’s condition prior to the leave, or as
soon as possible, if the leave was taken suddenly. 29 U.S.C. § 2613; 29 C.F.R. § 825.305(b). As
long as the employee is taking FMLA leave, the employer may require the employee to submit a
“recertification” of the medical condition as often as every thirty days. 29 C.F.R. § 825.308.
        Furthermore, upon proper notification, the employer may require the employee to submit a
“fitness-for-duty” certification by her health care provider as a condition of returning to work. 29
C.F.R. § 825.310. If the employee has not submitted a required “fitness-for-duty” certification by
the time the employee’s FMLA leave has ended, then the employee may be terminated. 29 C.F.R.
§ 825.311(c). The FMLA also does not require the employer to reinstate an employee after her leave
has ceased if the employee is unable to fulfill the essential functions of her job. 29 C.F.R.
§ 825.214(b).
B. Brumbalough’s Motion for Partial Summary Judgment
        Brumbalough appeals the district court’s denial of her motion for partial summary judgment
on the issue of Camelot’s liability. On appeal, Brumbalough argues that the district court erred in
denying her motion because she was still on FMLA leave when she was terminated.
        According to Brumbalough, Camelot improperly required her to submit a fitness-for-duty
certification under the threat of termination because the FMLA only permits such an ultimatum to
be made when the employee’s FMLA leave has concluded. 29 C.F.R. § 825.311(c) (“[U]nless the
employee provides either a fitness-for-duty certification or a new medical certification for a serious
health condition at the time FMLA leave is concluded, the employee may be terminated.”) (emphasis
added).
        In denying Brumbalough’s motion, the district court found that Brumbalough ended her
leave when she notified Camelot of her intent to return to work on July 27, 2001. Brumbalough
asserts that her FMLA leave did not conclude either until she was able to obtain the medical
certification required by Camelot for her to return to work or, in the alternative, until September 11,
2001. Therefore, Brumbalough argues, Camelot had no authority to terminate her on August 15,
2001.
        While the FMLA grants up to twelve weeks of leave, the FMLA also permits the employer
to require certain documentation before the leave may be covered under the Act. As previously
mentioned, employers may require an employee to submit a recertification every thirty days in
order to continue taking FMLA leave. 29 C.F.R. § 825.308(c). The employer must give the
employee at least fifteen days to submit such recertification. See 29 C.F.R. § 825.308(d). If the
No. 04-5543              Brumbalough v. Camelot Care Centers, Inc.                                         Page 6


employee fails to provide the recertification and continues to take leave, her leave is no longer
covered under the FMLA. 29 C.F.R. § 825.311(b).
        In the present case, at the inception of Brumbalough’s leave, Camelot requested that she
submit a medical recertification form if she was still unable to return to work after two months of
leave. (J.A. at 97-98.) Brumbalough’s leave began on June 11, 2001, and Camelot indicated to her
that her leave would continue until “on or about 8/11 - 9/11/01.” (Id.) Camelot therefore, providing
proper notification, required that Brumbalough submit a recertification   by August 11, 2001—two
months into her leave. Brumbalough failed to do so.1 Accordingly, by August 11, 2001,
Brumbalough was no longer covered under the FMLA. Consequently, our analysis must proceed
to whether Camelot violated Brumbalough’s right to reinstatement under the FMLA, not whether
Brumbalough was unlawfully terminated during FMLA coverage.2 The district court’s denial of
Brumbalough’s motion for partial summary judgment is affirmed.
C. Camelot’s Motion for Summary Judgment
       Upon Camelot’s motion for summary judgment, the district court granted the motion, finding
that Camelot was entitled to terminate Brumbalough because she did not submit a proper fitness-
for-duty certification at the conclusion of her FMLA leave, and alternatively, because she would
have been unable to perform the essential functions of her employment had she been reinstated.
       Brumbalough challenges the district court’s decision arguing that summary judgment for
Camelot was improper because: (1) Camelot had no authority to terminate Brumbalough for failure
to submit a fitness-for-duty certification under 29 C.F.R. § 311(c) as her FMLA leave had not yet
ended; (2) Dr. Stalling’s note of August 3, 2001 qualified as a fitness-for-duty certification and
whether Camelot received the August 3, 2001 fitness-for-duty certification is a question for the jury;
and (3) there is a genuine issue of material fact regarding  whether she would have been able to
perform the essential functions of her employment.3 Brumbalough also argues that Camelot should
have provided her with an alternative position or a reduced leave schedule.
        1. The Fitness-For-Duty Certification
        Camelot required Brumbalough to submit a fitness-for-duty certification by August 15, 2001
in order to be reinstated. Brumbalough claims that she sent a note from her doctor to Camelot on
August 3, 2001, indicating that she was fit for duty. Brumbalough also claims that she spoke to Ms.
Jolly, who told Brumbalough that the note was insufficient and that Camelot would require further
documentation before reinstatement. Although Ms. Jolly testified that she never received this note,
for the purposes of Camelot’s motion for summary judgment, the district court properly assumed
that Brumbalough had sent the note to Camelot.
       The doctor’s note, in its entirety, states, “[Linda Brumbalough] may return to work on
8/13/01[.] She should only work a 40-45 hour work week and limit her out of town travel to 1 day

        1
          This is probably because, at this point, Brumbalough felt she was able to return to work and was pursuing
reinstatement.
        2
           If Brumbalough had continued to take leave without submitting a recertification and without attempting to
return to work, Camelot arguably would not have been able to immediately terminate Brumbalough, because the FMLA
requires that the employer inform the employee in writing of the consequences of failing to recertify her illness.
29 C.F.R. § 825.305(a) and (d). This is not the situation here, however, because Brumbalough attempted to return to
work before her leave time had even ended.
        3
          As discussed in Part B, Brumbalough was no longer on FMLA leave when she was terminated. As such, the
Court finds Brumbalough’s first argument meritless.
No. 04-5543           Brumbalough v. Camelot Care Centers, Inc.                                 Page 7


per week.” (J.A. at 109.) The district court concluded that this note “did not meet defendant’s
requirements for a fitness-for-duty certification,” because it did not specify whether Brumbalough
could perform the essential functions of her job. (J.A. at 31.) The district court therefore found that
termination was proper because Brumbalough failed to provide a specific certification to her
employer.
        Although the FMLA permits employers to require a fitness-for-duty certification prior to
reinstatement, the relevant regulation states the following:
       An employer may seek fitness-for-duty certification only with regard to the particular
       health condition that caused the employee’s need for FMLA leave. The certification
       itself need only be a simple statement of an employee’s ability to return to work. A
       health care provider employed by the employer may contact the employee’s health
       care provider with the employee’s permission, for purposes of clarification of the
       employee’s fitness to return to work. No additional information may be acquired,
       and clarification may be requested only for the serious health condition for which
       FMLA leave was taken. The employer may not delay the employee’s return to work
       while contact with the health care provider is being made.
29 C.F.R. § 825.310(c) (emphasis added). There is no controlling case law on what a “simple
statement of an employee’s ability to return to work” must include to be sufficient under the
regulations. However, a plain reading of this regulation indicates that the fitness-for-duty
certification need only state that the employee can return to work. While the employer may require
more information, the regulation clearly states that the employer cannot delay reinstating the
employee simply because the employer is obtaining further information or clarification from the
employee’s health care provider. Id. Moreover, an employer may not impose requirements that
conflict with the FMLA and its regulations. Cavin v. Honda, 346 F.3d 713, 723 (6th Cir. 2003).
        This view is bolstered by the fact that the FMLA and accompanying regulations lay out in
specific detail what must be included in an initial medical certification, whereas the regulations
expressly state that only a simple statement is needed in a fitness-for-duty certification. Compare
29 U.S.C. § 2613(b) (stating that medical certification of a serious health problem will be
“sufficient” when it includes the date that the problems began, the probable duration of the ailment,
all other appropriate medical facts regarding the condition, a statement that the employee is unable
to perform work functions, as well as any requirements regarding intermittent leave”), with 29
C.F.R. § 825.310(c) (requiring only a “simple statement” of the employee’s ability to return to
work). See also Cooper v. Olin Corp., 246 F.3d. 1083, 1090 (8th Cir. 2001) (observing that there
are more stringent requirements for medical certification than for the fitness-for-duty certification);
Mathews v. Fairview Health Servs., No. 01-2151, 2003 WL 1842471, at *1, 4 (D. Minn. 2003)
(finding that a return-to-work slip by a doctor which stated only that the employee could return to
work and should not work more than 40 hours in a two-week period, was a sufficient fitness-for-duty
certification which required immediate reinstatement); Underhill v. Willamina Lumber Co., No. 98-
630-AS, 1999 WL 421596, at *7 (D. Or. 1999) (finding that a letter from the employee’s doctor
stating that the employee can return to work is specific enough to constitute a fitness-for-duty
certification and require reinstatement “regardless of whether Defendant had concerns about
plaintiff’s ability to do his job”).
       Accordingly, we hold that once an employee submits a statement from her health care
provider which indicates that she may return to work, the employer’s duty to reinstate her has been
No. 04-5543             Brumbalough v. Camelot Care Centers, Inc.                                         Page 8


triggered under the FMLA.4 Therefore, we reverse the district court’s conclusion that
Brumbalough’s fitness-for-duty certification was inadequate and conclude that Camelot was
required to reinstate Brumbalough upon receipt of Dr. Stalling’s August 3, 2001 note. If Camelot
decided that the same note was insufficient as a fitness-for-duty certification, it should have sought
clarification from Brumbalough’s doctor. Since, in this case, there is a genuine issue as to the
material fact of whether Camelot received the August 3, 2001 note, we remand the case for further
fact-finding.
        2. Essential Functions of Employment
        In granting Camelot’s motion for summary judgment, the district court alternatively
concluded that regardless of the timely submission of a fitness-for-duty certification, Camelot was
entitled to terminate Brumbalough because Brumbalough would have been unable to perform the
“essential functions” of her job upon her return. See 29 C.F.R. § 825.214(b) (“If the employee is
unable to perform an essential function of the position because of a physical or mental condition,
including the continuation of a serious health condition, the employee has no right to restoration to
another position under the FMLA.”).
        Determining what functions are “essential” to a particular position is a question of fact. See
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314-15 (6th Cir. 2001) (stating that whether
the employee could have returned to his old job upon the conclusion of his FMLA leave is a
question of fact); see also Hall v. United States Postal Serv., 857 F.2d 1073, 1079 (6th Cir. 1988)
(holding that determination of whether qualifications are essential functions of a job requires the
court to engage in a highly fact-specific inquiry and that such a determination should be based on
more than statements in a job description and should reflect the actual functioning and circumstances
of the particular enterprise involved); FEDERAL AND STATE GUIDE TO EMPLOYEE MEDICAL LEAVE
BENEFITS AND DISABILITIES LAW 5-120 (2005) (stating that under the ADA—which also uses the
term “essential functions”—determining “whether or not a particular job function is essential
requires a factual determination made on a case-by-case basis”) (citing 29 C.F.R. pt.1630 App.
§ 1630.2(n)).
       The parties presented the following evidence regarding whether Brumbalough could perform
the essential functions of the State Clinical Director if she had been reinstated after her leave
concluded.
        In a letter that Camelot sent to Brumbalough’s doctor, the company stated:
        In considering your decision to so certify [that Brumbalough is fit for duty], we ask
        that you review Linda’s job description and a related document entitled ‘Procedure
        For Supervision of Clinical Managers and Other Clinical Supervisors.’ . . . We also
        ask that you consider that Linda’s job as involved in the past, and will likely involve
        in the future, the requirement that Linda be ‘on-call’ twenty-four hours a day, seven
        days a week. In addition, during crisis situations or whenever she is required to act
        as a substitute clinical director when a vacancy occurs in one of the facilities she
        supervises, she may be working beyond a typical forty (40) hour workweek. Finally,
        her travel schedule of one visit per month to all of the facilities she supervises will
        remain intact, as will the requirement that she conduct quarterly reviews of her
        facilities.


        4
          The employer may, of course, determine that the doctor’s work restrictions render the employee unable to
perform the essential functions of her job. See infra Part C2. However, this is a separate issue from whether the
employee initially complied with her regulatory obligation to submit the fitness-for-duty form in a timely manner.
No. 04-5543             Brumbalough v. Camelot Care Centers, Inc.                                         Page 9


(J.A. at 103.) A review of Camelot’s Job Description Form for the State Clinical Director programs
reveals nothing helpful because it fails to quantify the number of hours the State Clinical Director
may have to work. (J.A. at 105-107.) The Form, in a section entitled “Essential Duties and
Responsibilities,” only lists, in a qualitative fashion, the people that State Clinical Director will
oversee, the programs that the State Clinical Director will supervise, etc. (J.A. at 105.) The second
document that was sent to Brumbalough’s doctor describes the procedures for supervision of clinical
managers, and its only relevance here is that it lists “individual case consultations and emergency
on-call, as needed” as one of the State Clinical Director’s supervisory duties. (J.A. at 108.)
       Brumbalough’s initial fitness-for-duty certification stated that she should only work a 40-45
hour workweek and limit her out-of-town travel to one day per week. A second letter written by
Brumbalough’s doctor on August 18, 2001 stated that Brumbalough may “return to work with some
modifications of duties while she continues to improve. She should not drive more than 1 day per
week as far as going out of town on business and she should not work more than a 45 hour work
week. This restriction will last for the next 2 months. She will be reevaluated then.” (J.A. at 437.)
        Brumbalough also submitted an affidavit in which she stated that, given her familiarity with
what the State Clinical Director position entails, she would have been able to perform the essential
functions as set out in the job description with Dr. Stallings’ restrictions. (J.A. at 397.)
Brumbalough also stated that she would be able to travel to each facility once a month by traveling
one day a week. (Id.) However, Camelot points out that in her deposition testimony, Brumbalough
admitted that she had, on occasion, previously worked 60 hours a week, and that during those times
she felt the job required her to do so. (J.A. at 190-91.)
         Ultimately, the district court found that there was no genuine issue of material fact regarding
what the essential functions of the State Clinical Director position are and whether Brumbalough
could perform them. The court held that Brumbalough’s work restrictions would render her unable
to perform the essential functions of the State Clinical Director position because the position
requires her to be on-call twenty-four hours per day, seven days a week. In so holding, the court
reasoned that even if Brumbalough were able to complete a forty-five hour workweek, she would
not be able to work more hours if “a crisis arose requiring her attention and additional travel . . . .”
(J.A. at 35.)
        There is some ambiguity regarding the number of hours the State Clinical Director is
required to work in order to fulfill all the required responsibilities. Although Camelot’s letter
asserted that Brumbalough may have to work over forty hours a week occasionally, nothing in
Camelot’s Job Description or letter states with precision the amount of time Brumbalough may need
to work over forty hours. Furthermore, although Brumbalough admitted that she had previously
worked sometimes fifty to sixty hours   a week, such admission is not proof that working these types
of hours is “essential” to the job.5
         Accordingly, the Court finds that Brumbalough has shown a genuine issue of material fact
by: (1) testifying that, given her knowledge of what the position entails as well as the written job
description, she could fulfill her responsibilities over the next two months by working forty-five
hours a week and traveling one day a week, as she has done in the past; (2) presenting Camelot’s
letter to her doctor which does not state that Brumbalough would need to work 60-70 hours; and
(3) presenting the written job description. Although it may be the case that Brumbalough could not
fulfill all her obligations given her medical restrictions, we conclude that further findings by the fact-



        5
          It may have been, for example, that Brumbalough was doing more than was necessary during those times, or
that she was inefficient.
No. 04-5543               Brumbalough v. Camelot Care Centers, Inc.                                          Page 10


finder are necessary to determine what constitutes the essential functions of the job and whether
Brumbalough was able to perform such functions.
         3. Alternative Reinstatement Options
      Because we reverse and remand on other grounds, we need not consider Brumbalough’s
argument that she was entitled to alternative reinstatement options.
D. Brumbalough’s Motion to Amend the Complaint
       On January 23, 2004, approximately nine months after filing the original complaint, and
approximately three months before trial was set to begin,   Brumbalough attempted to amend her
complaint to include damages for emotional distress.6 The district court denied the amendment,
finding that it would be both futile and prejudicial to Camelot.
         1. Futility of Amendment
        Whether a plaintiff is able to recover compensatory damages for emotional distress is an
issue of first impression before this Court. However, several other circuits have held that the FMLA
does not allow for such recovery.7 See Montgomery v. Maryland, No. 02-1998, 2003 WL 21752919,
at *2 (4th Cir. July 30, 2003) (unpublished) (discussing emotional distress damages); Walker v.
United Parcel Serv., Inc., 240 F.3d 1268, 1277 (10th Cir. 2001) (same); Nero v. Indus. Molding
Corp., 167 F.3d 921 (5th Cir. 1999) (discussing consequential damages); Graham v. State Farm
Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999) (discussing emotional damages distress); Cianci
v. Pettibone Corp., 152 F.3d 723, 728 (7th Cir. 1998) (finding no damage claim under the FMLA
when plaintiff suffered no actual monetary losses such as wages, salary, benefits, etc.). The
underlying logic to these courts’ conclusion is this: Because the FMLA specifically lists the types
of damages that an employer may be liable for, and it includes damages only insofar as they are the
actual monetary losses of the employee such as salary and benefits and certain liquidated damages,
the FMLA does not permit recovery for emotional distress. See 29 U.S.C. § 2617(a)(1); Walker, 240
F.3d at 1277.
       On appeal, Brumbalough argues that under Arban v. West Publishing Corp, 345 F.3d 390
(6th Cir. 2003), an FMLA case decided by this Court, she is entitled to recover compensatory
damages for mental and emotional injuries. This Court in Arban, in relevant part, stated as follows:
         If the employer is found to have retaliated against the employee for using FMLA
         leave, the employer is subject to a claim for compensatory damages and, unless the
         court finds the violation occurred in good faith, additional liquidated damages. 29
         U.S.C. § 2617(a)(1)(A).
345 F.3d at 403.
         29 U.S.C. § 2617(a)(1)(A) provides that:



         6
           Although the amendment makes mention of compensatory and liquidated damages in general, these were part
of the original complaint. Therefore, the only claim that is new to the amended complaint is one for emotional distress
damages.
         7
          The only circuit, among the ones that have reached this issue, that has allowed recovery of compensatory
damages under the FMLA for compensation for “mental anguish, loss of dignity, and other intangible injuries” is the
Eighth Circuit. See Duty v. Norton-Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002).
No. 04-5543           Brumbalough v. Camelot Care Centers, Inc.                               Page 11


       Any employer who violates § 2615 of this title shall be liable to any eligible
       employee affected for damages equal to the amount of (I) any wages, salary,
       employment benefits, or other compensation denied or lost to such employee by
       reason of the violation; or in a case in which wages, salary, employment benefits, or
       other compensation have not been denied or lost to the employee, any actual
       monetary losses sustained by the employee as a direct result of the violation; (ii) the
       interest on the amount described in clause (I); and (iii) an additional amount as
       liquidated damages equal to the sum of the amount described in clause (I) and the
       interest described in clause (ii) when the employer acted in bad faith.
The fact that the Arban court cites to § 2617 demonstrates that the words “compensatory damages”
as used in Arban referred to the damages enumerated in 29 U.S.C. § 2617(a)(1)(A). This conclusion
is consistent with the underlying logic of the cases from the other circuits disallowing damages for
emotional distress under the FMLA. Therefore, we find that Brumbalough’s reliance on Arban in
claiming that this Circuit allows recovery of damages for emotional distress and injuries under the
FMLA is misplaced.
       Brumbalough also argues that she is entitled to recover damages for emotional distress
because this Court has allowed such recovery for retaliation in violation of the Fair Labor Standard
Act (“FLSA”), whose remedial provision Congress intended the FMLA to mirror. See Moore v.
Freeman, 355 F.3d 558, 563 (6th Cir. 2004); see also Frizzell v. Southwest Motor Freight, 154 F.3d
641, 644 (6th Cir. 1998). We do not find Brumbalough’s argument persuasive.
          Retaliation damages under the FLSA are controlled by 29 U.S.C. § 216(b) which provides,
“any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such
legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this
title, including without limitation employment, reinstatement, promotion, and the payment of wages
lost and an additional equal amount as liquidated damages.” (emphasis added). Such language is
not found in the FMLA, and therefore a retaliation claim in violation of the FMLA does not warrant
damages for emotional distress.
       For the reasons stated above, we hold that damages for emotional distress are not allowed
under the FMLA and affirm the district court’s denial of Brumbalough’s motion to amend
complaint.
       2. Prejudice to Camelot
         As this Court’s holding that damages for emotional distress are not allowed under the FMLA
renders the amendment to Brumbalough’s complaint futile, the Court needs not review whether the
district court abused its discretion in finding that the amendment would have been prejudicial to
Camelot.
                                        IV. CONCLUSION
        For the reasons set forth above, the district court’s denial of Brumbalough’s motion for
partial summary judgment is AFFIRMED and grant of Camelot’s motion for summary judgment
is REVERSED. The district court’s denial of Brumbalough’s motion to amend her complaint is
AFFIRMED. We REMAND the case for further proceedings not inconsistent with this opinion.
