Jeffrey Perry v. Jagua Rof Troy, assumed name for Somerset Auto Collection, Inc.

*The Hono rable Danny C. Reeves, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0459P (6th Cir.)
File Name: 03a0459p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JEFFREY PERRY,
Plaintiff-Appellant,
v.
JAGUA R OF TROY, assumed
name for Somerset Auto
Collection, Inc.,
Defendant-Appellee.
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No. 02-1816
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-74015—Anna Diggs Taylor, District Judge.
Argued: December 2, 2003
Decided and Filed: December 30, 2003
Before: GUY and GILMAN, Circuit Judges; REEVES,
District Judge.*
2 Perry v. Jaguar of Troy No. 02-1816
_________________
COUNSEL
ARGUED: William S. Stern, Southfield, Michigan, for
Appellant. Patrice S. Arend, JAFFE, RAITT, HEUER &
WEISS, Detroit, Michigan, for Appellee. ON BRIEF:
William S. Stern, Southfield, Michigan, for Appellant.
Patrice S. Arend, Melanie T. LaFave, JAFFE, RAITT,
HEUER & WEISS, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Plaintiff, Jeffrey
Perry, appeals from the grant of summary judgment in favor
of defendant, Jaguar of Troy, in this case brought under the
Family Medical Leave Act (FMLA). 29 U.S.C. §§ 2601-
2654. Perry claims that defendant violated the FMLA by
refusing to allow him to return to his employment after taking
leave to care for his son who has learning disabilities.
Specifically, Perry argues that the district court erred when it
held that he had not given sufficient notice and that his son
did not have a serious health condition. After review of the
arguments, the record, and the applicable law, we affirm.
I.
Perry was employed by defendant as an auto parts counter-
person when he sought leave in the summer of 2001 to care
for his 13-year-old son, Victor Perry. Victor had been
diagnosed with learning disabilities, attention deficit disorder
(ADD), and attention deficit hyperactivity disorder (ADHD).
Victor took medication to treat his impulse control problems.
He visited a doctor every six months to check his physical
condition and the effect of the drugs.

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No. 02-1816 Perry v. Jaguar of Troy 3
Victor was certified as “Educable Mentally Impaired.” A
school evaluation noted that he needed to “curb impulsive
behavior.” Victor functioned at a third-grade level in reading
and a second-grade level in written language skills. Perry
testified that Victor could brush his teeth and feed and dress
himself. Victor rode the bus to and from school and attended
a class for emotionally and mentally impaired students during
the school year. When not in school, Victor played video
games, watched television, and played with neighborhood
kids. He also rode his bike and swam. After school, he
stayed with a neighbor or went to the after-school day care
program.
Prior to 2001, Victor was either watched by his mother or
other family members during the summer months. Victor’s
mother was unable to watch him in the summer of 2001
because of her work schedule, and the family was forced to
consider other arrangements. In his affidavit, Perry stated that
Victor must be constantly monitored for safety reasons and to
ensure that his behavior is socially acceptable. He also stated
that they were unable to find affordable day care that would
meet Victor’s need for full-time attention from a child care
provider in a “very controlled environment.”
The defendant’s employee handbook required medical
certification for FMLA leave:
Employees taking a leave under this policy are required
to provide a medical certification of the condition and the
need for the leave from the health care provider.
Certification forms should be obtained from the Office
Manager.
Perry testified in his deposition that he told his supervisor,
Doug Manarv, at least two months before he wanted the leave
that he needed to take time off to watch Victor. On April 4,
2001, Perry submitted an Employee Requested Time Off
Form. Perry gave notice that he would not work from
June 13 until August 27, 2001, for the stated reason of “child
4 Perry v. Jaguar of Troy No. 02-1816
care.” There was no reference to the FMLA or Victor’s
special needs, and no medical certification was provided.
Perry testified in his deposition, however, that he orally told
Manarv that he was asking for leave under the FMLA, which
he had read about in the employee handbook. Manarv
“basically said okay,” and there was no discussion about
whether his position would be available at the end of the
leave.
On June 29, 2001, approximately two weeks after Perry’s
leave began, defendant’s office manager sent a letter to Perry
that stated:
This letter is to inform you that your leave of absence is
not considered under The Family and Medical Leave act
of 1993, please see attached for the eligibility
requirements.
You currently have benefits through AFLAC, we are
informing them that you are on a leave of absence, and
that they should bill you at your home. This became
effective on June 18, 2001.
Please call if you have any questions.
At the end of the summer, Perry contacted his supervisor
about returning to work. He was informed that his position
had been filled, and that no other positions were available.
Perry thereafter brought this action seeking reinstatement and
damages under the FMLA. The district court granted
defendant’s motion for summary judgment. This appeal
followed.
II.
We review the grant of summary judgment de novo. Smith
v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary
judgment is appropriate when there are no issues of material
fact in dispute, and the moving party is entitled to judgment

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No. 02-1816 Perry v. Jaguar of Troy 5
as a matter of law. FED. R. CIV. P. 56(c). The moving party
bears the initial burden of showing the absence of a genuine
issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The burden then shifts to the nonmoving
party to come forward with evidence showing that there is a
genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986). There is no genuine issue for trial
unless the nonmoving party has produced enough evidence to
enable a jury to return a verdict for that party. Id. at 249. In
deciding a motion for summary judgment, the court must
draw all reasonable inferences in favor of the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
Under the FMLA, an eligible employee is entitled to
receive 12 workweeks of leave during any 12-month period
to, among other things, care for a spouse, son, daughter, or
parent if the spouse, son, daughter, or parent has a serious
health condition. 29 U.S.C. § 2612(a)(1). Upon return from
an FMLA leave, the employee is entitled to reinstatement to
the same or an equivalent position without the loss of benefits
(with some limited exceptions not applicable here). 29
U.S.C. § 2614. It is “unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under” the FMLA. 29 U.S.C.
§ 2615(a)(1).
A. Notice
The defendant argues that summary judgment was proper
because Perry did not provide sufficient notice since the
written form did not reference the FMLA or Victor’s health
condition. To qualify for FMLA leave, the employee must
give not less than 30-days’ notice if the necessity for the leave
is foreseeable. 29 U.S.C. § 2612(e). An employee is not
required to expressly assert his right to take leave under the
FMLA. 29 C.F.R. § 825.302(c) (2002). We have recognized
that an employee gives sufficient notice when he provides
enough information for the employer to reasonably conclude
6 Perry v. Jaguar of Troy No. 02-1816
1“Except as pro vided in subp aragraph (ii), if the emp loyer is
requiring medical certification . . . , written no tice of the requirement shall
be given with respe ct to each em ployee notice of a need for leave.”
29 C.F.R . § 82 5.30 1(c)(2)(i). Subsequent written notifications are not
required if notice is given after the employee first requests leave and the
employee handboo k clearly provides that certification is required.
29 C.F.R. § 82 5.301(c)(2)(ii).
that an event described in § 2613(a)(1) has occurred. See
Brohm, M.D. v. JH Props., Inc., 149 F.3d 517, 523 (6th
Cir.1998).
Perry argues that his employer was aware of his son’s
health condition because he discussed it often at work and
because his son had visited the dealership in the past. Perry
also testified in his deposition that he specifically mentioned
the FMLA when he discussed the intended leave with his
supervisor. On this record, it appears that defendant was
given enough information reasonably to conclude that Perry
was asking for leave under the FMLA. In any event, it is
clear that at some point defendant knew, or at the very least
presumed, that Perry was requesting leave that might qualify
under the FMLA because it responded by denying FMLA
leave. Thus, defendant is not entitled to summary judgment
because of deficiencies in Perry’s notice.
B. Medical Certification
Defendant also argues that it properly denied FMLA leave
because Perry did not provide medical certification as
required under the employee handbook. If the employee fails
to provide requested medical certification, the leave does not
qualify as FMLA leave. 29 C.F.R. § 825.311(b). The
regulations, however, state that when an employee first asks
for FMLA leave, the employer must give specific written
notice of the employee's obligations, including the duty to
provide medical certification and the consequences for failing
to do so. 29 C.F.R. § 825.301(c)(2).1 In addition, certification

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No. 02-1816 Perry v. Jaguar of Troy 7
2“An employer m ust give notic e of a requirement for medical
certification each time a certification is required; such notice must be
written notice whenever required by § 825.301. An employer’s oral
request to an employee to furnish any subsequent medical certification is
sufficient.” 29 C.F.R. § 825.305(a).
must be requested each time it is required. 29 C.F.R.
§ 825.305(a).2
Even though the need for medical certification was stated
in defendant’s employee handbook, the regulations required
defendant again to ask for certification after Perry told his
supervisor he wanted leave to watch his son over the summer.
It is unclear on this record whether defendant requested
certification after receiving Perry’s notice and before denying
FMLA leave. Because there is no evidence that defendant
requested medical certification pursuant to the requirements
of the FMLA, Perry’s failure to provide medical certification
does not support summary judgment for defendant.
C. Serious Health Condition
Perry has a cause of action under FMLA only if Victor had
a serious health condition that required Perry’s care. See
Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1111-
12 (6th Cir. 1997). The FMLA defines a serious health
condition as an illness, injury, impairment, or physical or
mental condition that involves (1) inpatient care in a hospital,
hospice, or residential medical care facility; or (2) continuing
treatment by a health care provider. 29 U.S.C. § 2611(11).
The regulations go on to define a serious health condition as
an illness, injury, impairment, or physical or mental condition
that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital,
hospice, or residential medical care facility, including
any period of incapacity (for purposes of this section,
defined to mean inability to work, attend school or
perform other regular daily activities due to the serious
8 Perry v. Jaguar of Troy No. 02-1816
health condition, treatment therefor, or recovery
therefrom), or any subsequent treatment in connection
with such inpatient care; or
(2) Continuing treatment by a health care provider . . . .
29 C.F.R. § 825.114(a) (emphasis in original).
“Continuing treatment by a health care provider” includes,
in pertinent part:
(i) A period of incapacity (i.e., inability to work, attend
school or perform other regular daily activities 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 assistant under direct
supervision of a health care provider, or by a provider of
health care services (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.
. . . .
(iii) Any period of incapacity or treatment for such
incapacity due to a chronic serious health condition. A
chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health
care provider, or by a nurse or physician’s assistant under
direct supervision of a health care provider;

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No. 02-1816 Perry v. Jaguar of Troy 9
(B) Continues over an extended period of time
(including recurring episodes of a single underlying
condition); and
(C) May cause episodic rather than a continuing period
of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-
term due to a condition for which treatment may not be
effective. The employee or family member must be
under the continuing supervision of, but need not be
receiving active treatment by, a health care provider.
Examples include Alzheimer’s, a severe stroke, or the
terminal stages of a disease.
29 C.F.R. § 825.114(a)(2) (emphasis in original).
Perry argues that Victor had a chronic or permanent serious
health condition because he was under the periodic treatment
of a physician. Perry offered evidence that Victor was seeing
a doctor every six months to check his physical condition and
the effect of the medications. Defendant argues that Victor
was not receiving treatment because he did not see a doctor in
the summer of 2001. Treatment “includes (but is not limited
to) examinations to determine if a serious health condition
exists and evaluations of the condition.” 29 C.F.R.
§ 825.114(b). Absences attributable to a chronic serious
health condition under 29 C.F.R. § 825.114(a)(2)(iii) qualify
for FMLA leave even if the employee or family member does
not receive treatment from a health care provider during the
absence. 29 C.F.R. § 825.114(e).
Even if Victor’s biannual doctor visits constitute treatment,
however, Perry must also present evidence that Victor was
incapacitated in the summer of 2001. In order to have had a
serious health condition, whether chronic or permanent,
Victor must have been unable to work, attend school, or
perform other regular daily activities during the period of
Perry’s leave.
10 Perry v. Jaguar of Troy No. 02-1816
3Defendant objected to the documents attached to Pe rry’s response
to the mo tion for summ ary judgment. After defendant filed its reply brief,
Perry filed a Supplemental Affidavit which stated that the documents
were copies of records from Victor’s school and medical files. Federal
Rule of Civil Procedure 56 requires the plaintiff to present evidence of
evidentiary quality that demonstrates the existence of a genuine issue of
material fact. Examp les of such evidence include ad missible documents
or attested testimony, such as that found in affidavits or depositions. The
proffered evidence need not be in admissible form, but its content must
be admissible. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135 , 145
(6th Cir. 1997). Defendant argues that the affidavit was untimely and was
not sufficient to authenticate the documents. M ost of the documents are
far removed in date from 2001 and, therefore, are not relevant to Victor’s
health cond ition in the summer of 2001. Two school reports are dated
2000 and 2001. They note that the clarity of Victor’s speech decreases
during spontaneous speech because of his rapid delivery, but note that one
of Victor’s strengths is his ability to communicate thoughts and engage
in conversations with peers and adults. The 2000 repo rt notes “d ifficulty”
in gross motor and fine motor coordination, but the 2002 report notes that
Victor participates in regular physical education classes. Thus, regardless
of whether these documents can b e con sidered on summ ary judgment,
they do not address the question in this case: Did Victo r’s health
condition render him unable to work, attend school, or perform regular
daily activities?
In support of its motion for summary judgment, defendant
presented evidence that Victor was able to attend school and
engaged in the same daily activities in which most children
engage: riding the bus to and from school, riding bikes,
swimming, playing video games, watching television, and
playing with neighborhood friends. The burden then shifted
to Perry to come forward with evidence showing that Victor
was in fact incapacitated.
Perry argues that Victor was incapacitated because he could
not perform regular daily activities when compared to other
children without ADD and ADHD. Perry, however, points to
no evidence to support this conclusory claim that Victor could
not perform regular daily activities.3 The fact that a child
with learning disabilities does not function at the same level
as a child of the same age without learning disabilities sheds

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No. 02-1816 Perry v. Jaguar of Troy 11
no light on whether that child can perform regular daily
activities.
Perry also argues that Victor was incapacitated because he
could not attend a regular day camp. Perry claims that Victor
needed extraordinary supervision. A younger child with no
learning disabilities, however, may also require more
supervision. The comparative amount of supervision a child
needs standing alone does not address the child’s ability to
engage in regular daily activities. The examples of behavior
requiring extra monitoring given by Perry in his affidavit, if
anything, refute Perry’s claim that Victor could not engage in
regular daily activities. Victor was found peeking into the
windows of neighbors, biking on the service drive of a
freeway, and making numerous telephone calls to video game
companies. Even viewing the facts in a light most favorable
to Perry, we cannot find that there is enough evidence in this
record to enable a jury to reasonably conclude that Victor was
incapacitated in the summer of 2001 and, thus, had a serious
health condition qualifying Perry for an FMLA leave.
AFFIRMED.

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