                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0026p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                   X
                              Plaintiff-Appellant/ -
 CHARLES S. SORRELL,

                                 Cross-Appellee, -
                                                    -
                                                    -
                                                         Nos. 03-4359/4443

                                                    ,
          v.                                         >
                                                    -
                                                    -
                            Defendant-Appellee/ -
 RINKER MATERIALS CORPORATION,

                                Cross-Appellant. -
                                                    -
                                                   N
                     Appeal from the United States District Court
                     for the Southern District of Ohio at Dayton.
                   No. 02-00207—Thomas M. Rose, District Judge.
                                         Argued: December 7, 2004
                                  Decided and Filed: January 14, 2005
            Before: MARTIN and MOORE, Circuit Judges; BUNNING, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Jill A. May, COOLIDGE, WALL, WOMSLEY & LOMBARD, Dayton, Ohio, for
Appellant. Joseph P. Shelton, FISHER & PHILLIPS, Atlanta, Georgia, for Appellee. ON BRIEF:
James E. Swaim, FLANAGAN, LIEBERMAN, HOFFMAN & SWAIM, Dayton, Ohio, for
Appellant. Joseph P. Shelton, Robert P. Foster, FISHER & PHILLIPS, Atlanta, Georgia, Paul G.
Hallinan, Robin D. Ryan, PORTER, WRIGHT, MORRIS & ARTHUR, Dayton, Ohio, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        BOYCE F. MARTIN, JR., Circuit Judge. In this case brought pursuant to the Family and
Medical Leave Act, 29 U.S.C. § 2601, et seq., plaintiff Charles S. Sorrell appeals, and defendant
Rinker Materials Corporation cross-appeals, the district court’s award of summary judgment in favor
of Rinker. For the reasons that follow, we VACATE the district court’s judgment and REMAND
for further proceedings.


        *
         The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky, sitting
by designation.


                                                        1
Nos. 03-4359/4443 Sorrell v. Rinker Materials Corp.                                              Page 2


                                                   I.
        Charles Sorrell began working for a predecessor of Rinker Materials Corporation in 1977
and, for the last thirteen years or so, held an outside sales position in the company. This position
required Sorrell to sell precast concrete items to customers in the commercial construction industry,
and it necessitated frequent travel. Sorrell was responsible for a sales territory that covered the City
of Cincinnati and its surrounding areas, including north of Cincinnati to Route 73, east into Clermont
County, west to the Indiana border, and south to the northern-most areas of Kentucky. At its furthest
reaches, this territory required approximately one hour of driving time from the Sorrells’ home in
Dayton, Ohio. In addition to visiting customers within his sales territory, Sorrell generally worked
at Rinker’s Dayton facility three days per week.
         In mid-November of 2000, Sorrell informed Randy Yoakum, a supervisor at Rinker’s Dayton
facility, that he had decided to retire. Yoakum indicated that he would accept Sorrell’s decision and
the two men discussed various possibilities whereby Sorrell might return to work in some capacity
for Rinker after the winter. Yoakum made clear, however, that upon his retirement Sorrell would
be permanently replaced by a new person. Sorrell and Rinker agreed that Sorrell’s last day of work
would be around December 21, but that his termination would not become effective until January
16, 2001. From December 21 to January 16, Sorrell would remain on Rinker’s payroll and use his
accrued vacation time. Within a few days after announcing his retirement, Sorrell was informed that
his replacement would be another Rinker employee named Steve Jeffries, who had previously
worked at the company’s Indianapolis facility but wished to move to the Dayton area. During the
month of December, Sorrell assisted in training Jeffries to be his replacement. On December 18,
Rinker officials filled out a personnel form indicating that Sorrell would be retiring. On
December 20, Yoakum signed the form, indicating his approval of the personnel change.
        Sorrell claims that his retirement decision was prompted, at least in part, by his desire to care
for his wife, Sharrie Sorrell, who had recently developed an eye disorder. Mrs. Sorrell’s physician,
Dr. Opremcak, prescribed Prednisone as treatment for this disorder. Although Dr. Opremcak
advised Mrs. Sorrell to take Prednisone daily, she could adjust the dosage to her needs. Because of
Prednisone’s potentially harmful side effects, Dr. Opremcak advised Mrs. Sorrell to keep the dosage
as low as possible. In Mrs. Sorrell’s experience, warmer weather helped her to minimize the dosage.
Therefore, she decided that she wished to spend the winter of 2000-01 in Florida, where the Sorrells
owned a condominium. No doctor advised Mrs. Sorrell that warmer weather could help to treat her
eye condition or to minimize her Prednisone dosage.
        At the time Sorrell announced his retirement decision, he erroneously believed that the
Family and Medical Leave Act provided leave only for new parents. After learning that he may be
entitled to leave pursuant to the Act to care for his wife, Sorrell decided that he would prefer to take
such leave instead of retiring. At some point between announcing his retirement and December 21,
Sorrell orally notified Rinker that he wished to take leave under the Act rather than retire. Sorrell
was advised of the procedures for securing such leave. The first step in the process, he was told, was
to submit a note from his wife’s doctor. Dr. Opremcak provided a note, dated December 21, 2000,
which stated that: “Due to decreasing Prednisone the body increases in stress, and decreases the
immune system. Therefore a 3 month leave would help with the above.” The parties characterize
this note as a “medical certification,” which is a term of art used in the Act. Although, as Sorrell
acknowledges, Dr. Opremcak’s note is mistakenly written as if Mrs. Sorrell herself were applying
for leave, Rinker apparently voiced no specific concerns about the note.
       Rinker next told Sorrell that he would have to complete certain forms. Yoakum informed
him that because it was so close to the holidays, he could submit the leave forms after the first of the
year. The Sorrells left for Florida just after Christmas. In January, after some delays, the necessary
forms were sent to Sorrell in Florida. Sorrell submitted the completed forms to Rinker on January
Nos. 03-4359/4443 Sorrell v. Rinker Materials Corp.                                                 Page 3


22, 2001. Sorrell’s leave was officially approved soon afterward. On or about February 19, Rinker
executed a personnel change notification form, which indicated that Sorrell would not be retiring
and which reinstated him to active employee status, retroactive to his original hire date, so that he
would be entitled to take leave pursuant to the Act.
         Sorrell’s leave was to expire on April 12, 2001. He and his wife returned to Ohio during the
first week of April. On or about April 7, before the leave expired, Sorrell called Yoakum and
informed him that he was back in town and ready to return to work. Yoakum told Sorrell that he had
been informed by Thomas Hartley, another Rinker official, that Rinker was in a “hiring freeze” and
that there were no positions available. Sorrell told Yoakum that a hiring freeze should not affect
someone returning from leave taken pursuant to the Family and Medical Leave Act. Yoakum told
Sorrell that he would talk to Hartley again and call Sorrell back. Two weeks later, Yoakum called
to tell Sorrell that Hartley had “something” for him. Yoakum explained that Rinker was willing to
reinstate Sorrell to an outside sales position, but that he would have to accept a territory covering
the southeast quadrant of Indiana, which was “at least sixty miles from Sorrell’s home” and
“included areas of Indiana over 180 miles away from Sorrell’s home that would take over three
hours of driving time to reach.” Sorrell was told that he would be expected to spend two to three
nights per week on the road, which he never had to do while working in his prior territory.
         Sorrell met with Rinker officials about this proposed arrangement, but explicitly indicated
that this was not the territory that he desired. Hartley explained that his previous position, covering
the Cincinnati territory, was not available because it was occupied by Jeffries. Sorrell suggested the
possibility of working out a part-time arrangement, but Hartley said that such an arrangement
probably would not work because Rinker’s customers expected salesmen to be available five days
per week. Sorrell explained that, in that case, he wanted his old territory back. Hartley immediately
rejected this proposition, but said that he would call Sorrell in a couple of days. No one from Rinker
contacted him, however, and Sorrell subsequently initiated this lawsuit alleging a violation of his
rights under the Family and Medical Leave Act. In particular, Sorrell claims that Rinker violated
his rights by failing to restore him to his prior position, or an equivalent one, upon his return from
leave.
        The district court granted Rinker’s motion for summary judgment on the ground that Sorrell
had relinquished his outside sales position prior to requesting Family and Medical Leave Act leave
and, therefore, was not entitled to that position, or an equivalent one, upon his return from leave.
This timely appeal followed.
                                                  II.
        We review de novo the district court’s award of summary judgment in favor of Rinker and
against Sorrell. See Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). Summary judgment
is proper “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). On appeal, we
consider all facts and inferences drawn therefrom in the light most favorable to Sorrell, as the
nonmoving party. Peltier, 388 F.3d at 987.
        Sorrell’s Family and Medical Leave Act claim is based upon what has been described as an
“interference” theory. Such a theory, we have explained,
       arises from § 2615(a)(1), which states that “[i]t shall be unlawful for any employer
       to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
       provided in this subchapter,” and from § 2614(a)(1), which provides that “any
       eligible employee who takes leave . . . shall be entitled, on return from such leave
Nos. 03-4359/4443 Sorrell v. Rinker Materials Corp.                                               Page 4


        (A) to be restored by the employer to the position of employment held by the
        employee when the leave commenced; or (B) to be restored to an equivalent
        position.”
Arban v. West Publ’g Corp., 345 F.3d 390, 400-01 (6th Cir. 2003). In order to prevail on his claim,
Sorrell must prove by a preponderance of the evidence that: (1) he was an eligible employee as
defined in the Act; (2) Rinker was an employer as defined in the Act; (3) he was entitled to leave
for one of the reasons set forth in the Act; (4) he gave notice of his intention to take leave as required
by the Act; and (5) Rinker improperly denied him benefits under the Act. See Cavin v. Honda of
Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003).
        The sole issue raised in Sorrell’s appeal challenges the district court’s holding that Sorrell
was not entitled to his prior position or an equivalent one upon his return from leave because he had
already relinquished his outside sales position prior to requesting leave. In its cross-appeal, Rinker
argues, among other things, that Sorrell was not entitled to leave because his wife did not have a
“serious health condition” as required by the Act and because Sorrell did not “care for” his wife
within the meaning of the Act. Sorrell responds that principles of waiver or estoppel preclude
Rinker from challenging his entitlement to leave. According to Sorrell, because Rinker granted his
request for leave without informing him that Dr. Opremcak’s medical certification was incomplete,
without seeking to clarify the certification and without seeking a second opinion, “it cannot now
challenge the sufficiency of the grounds for [his] request for leave.” Although Sorrell raised this
argument in his memorandum in opposition to Rinker’s motion for summary judgment, the district
court never explicitly considered or resolved it; instead, the court held as a matter of law that Sorrell
was entitled to leave in order to care for his wife, who had a serious health condition.
         We decline at this point to consider the propriety of the district court’s specific holdings, as
we believe it is first necessary to resolve the issue that the district court ignored—namely, the effect
of Rinker’s unconditional approval of Sorrell’s request for leave on its subsequent ability to contest
his entitlement to leave. The district court should resolve this issue in the first instance, and the case
will be remanded for that particular purpose. On remand, the district court should consider, in
addition to any other matters that it deems appropriate, the following issues:
        First, the district court should consider whether the doctrine of equitable estoppel applies to
bar Rinker from challenging Sorrell’s entitlement to leave under the Act. Although we are unaware
of any cases issued by this Court that are dispositive of this issue, several of our sister circuits have
held that, under the right circumstances, an employer may be equitably estopped from challenging
an employee’s entitlement to such leave. See, e.g., Duty v. Norton-Alcoa Proppants, 293 F.3d 481,
493-94 (8th Cir. 2002) (holding that an employer was equitably estopped from asserting an
affirmative defense that an employee’s leave was confined to the twelve weeks provided by the Act
where the employer explicitly guaranteed longer leave); Kosakow v. New Rochelle Radiology
Assocs., P.C., 274 F.3d 706, 722-27 (2d Cir. 2001) (holding that the district court could conclude
on remand that an employer is equitably estopped from challenging an employee’s eligibility for
leave where the employer allegedly failed to “inform its employees of the protections of the [Act]
and what was required of its employees in order that they qualify for those protections”); Dormeyer
v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000) (holding that “an employer who by his
silence misled an employee concerning the employee’s entitlement to family leave might, if the
employee reasonably relied and was harmed as a result, be estopped to plead the defense of
ineligibility to the employee’s claim of entitlement to family leave”). Whether the doctrine of
equitable estoppel applies in this case to preclude Rinker from challenging Sorrell’s entitlement to
leave is a matter for the district court to consider in the first instance on remand.
       Second, the district court should consider whether, and to what extent, Rinker is precluded
from contesting Sorrell’s eligibility for leave by virtue of its alleged failure to comply with or to
Nos. 03-4359/4443 Sorrell v. Rinker Materials Corp.                                              Page 5


avail itself of certain procedures under the Act. On appeal, Sorrell identifies at least three such
procedures. First, Sorrell argues that Rinker failed to advise him that it found Dr. Opremcak’s
medical certification incomplete or to provide him a reasonable opportunity   to cure any deficiency
in the certification, as it is required to do under 29 C.F.R. § 825.305(d)1 (providing that “[t]he
employer shall advise an employee whenever the employer finds a certification incomplete, and
provide the employee a reasonable opportunity to cure any such deficiency”). Second, Sorrell
argues that Rinker failed to insist that a second medical opinion be submitted, as is its right under
29 U.S.C. § 2613(c)(1) (providing that “[i]n any case in which the employer has reason to doubt the
validity” of a medical certification submitted by an employee, “the employer may require, at the
expense of the employer, that the eligible employee obtain the opinion of a second health care
provider designated or approved by the employer”). Finally, Sorrell argues that Rinker never sought
clarification of Dr. Opremcak’s medical certification, as it is permitted to do under 29 C.F.R.
§ 825.307(a) (providing that “a health care provider representing the employer may contact the
employee’s health care provider, with the employee’s permission, for purposes of clarification and
authenticity of the medical certification”) (emphasis in original). According to Sorrell, the fact that
Rinker approved his leave without complying with or availing itself of any of these procedures
precludes Rinker from now contesting his entitlement to that leave.
        We are primarily concerned with Sorrell’s argument concerning Rinker’s alleged failure to
comply with 29 C.F.R. § 825.305(d) because that provision, unlike the others invoked by Sorrell,
imposes an affirmative duty on an employer that finds a medical certification incomplete; the
language in the other two provisions—i.e., 29 U.S.C. § 2613(c)(1) and 29 C.F.R. § 825.307(a)—is
merely permissive. See Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 386 (4th Cir. 2001)
(holding that “[b]ecause the term ‘may’ is permissive, the plain language of the statute indicates that
an employer who questions the validity of a certification has the option of seeking a second and third
opinion, without being required to do so,” and that “the plain language of the Act does not suggest
that an employer must pursue these procedures or be forever foreclosed from challenging whether
an employee suffered from a serious health condition”); Stekloff v. St. John’s Mercy Health Sys., 218
F.3d 858, 860 (8th Cir. 2000) (holding that “[w]e do not read § 2613(c)(1) as requiring an employer
to obtain a second opinion or else waive any future opportunity to contest the validity of the
certification”).
        Pursuant to 29 C.F.R. § 825.305(d), if Rinker found Dr. Opremcak’s medical certification
incomplete, it had a duty to advise Sorrell of that fact and to provide Sorrell a reasonable opportunity
to cure any such deficiency in the certification. Although we have located no cases from this Court
that provide any guidance with respect to this issue, several district courts in other jurisdictions have
held that an employer may not assert incompleteness of a medical certification as grounds for
disciplining an employee where the employer never notified the employee of the problem or gave
him an opportunity to cure it. See, e.g., Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp.
2d 455, 466 (D.N.J. 2001) (“termination is not an appropriate response for an inadequate
certification” because “[s]ection 825.305(d) provides that where an employer finds a certification
incomplete, it must give the employee a reasonable opportunity to cure any deficiencies”); Sims v.
Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d 1253, 1266-68 (N.D. Cal. 1998) (holding that
although the employee’s medical certification was incomplete because it failed to certify that his
serious health condition lasted the full duration of his absence from work, the employer waived its
right to argue that the employee did not suffer from a serious health condition by failing to notify
the employee of the problem or to afford him the opportunity to cure it).
        It is unclear from the record on appeal whether Rinker found Dr. Opremcak’s medical
certification “incomplete” so as to trigger its duty under 29 C.F.R. § 825.305(d). See Shtab v.


        1
            Sorrell’s brief erroneously identifies this regulation as 29 C.F.R. § 825.305(c).
Nos. 03-4359/4443 Sorrell v. Rinker Materials Corp.                                               Page 6


Greate Bay Hotel & Casino, Inc., 173 F. Supp. 2d 255, 265 (D.N.J. 2001) (holding that “the
predicate question of whether the missing dates in [an employee’s] medical certification rendered
his application complete but unsupportive of [his] leave request or incomplete and capable of
correction is a question of material fact for a jury to decide”). Although there is relatively little case
law interpreting the term “incomplete” as it is used in this regulation, we note that some courts have
equated it with the term “inadequate.” Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1209
n.12 (11th Cir. 2001); see also Baldwin-Love v. Elec. Data Sys. Corp., 307 F. Supp. 2d 1222, 1234
(M.D. Ala. 2004) (holding that “[a]n incomplete certification is akin to an inadequate certification
or a certification that fails to provide the information requested by the employer,” but “is not the
same as a certification that is non-existent or that has not been provided to the employer”).
        Although we offer the foregoing observations as guidance, the applicability and impact of
29 C.F.R. 825.305(d)—along with the other provisions referenced above—is a matter for the district
court to consider in the first instance on remand.
                                                   III.
        In light of the above, we VACATE the judgment of the district court and REMAND for
further proceedings consistent with this opinion.
