Summary
distinguishing Sims as a case where the original medical certification was facially sufficient to support a finding of a serious medical condition
Summary of this case from Call v. Fresenius Medical Care Holdings, Inc.Opinion
No. 1:03-cv-01410-DFH-TAB.
December 22, 2004
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
Defendant Indiana Heart Physicians, Inc. (IHP) fired plaintiff Regina Dowell after she failed to report for work for more than a week in September 2002. Dowell has sued, claiming that she was entitled to medical leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Both parties have moved for summary judgment. The undisputed evidence shows that even Dowell's treating doctor did not believe she was unable to work or that she had a "serious health condition" within the meaning of the FMLA. Dowell has raised several legal arguments in an effort to avoid and even to suppress the indisputable medical evidence, but those arguments are not persuasive. Because Dowell did not suffer from a serious medical condition, she was not entitled to leave under the FMLA and her firing did not violate the FMLA. IHP's motion for summary judgment is therefore granted, and Dowell's is denied.
Summary Judgment Standard
Summary judgment removes the need for trial where there is no genuine issue of material fact remaining and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). It would be a "gratuitous cruelty to the parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained." Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983). When considering motions for summary judgment, the court will "pierce the pleadings and . . . assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court will grant summary judgment when "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 a motion for summary judgment, the moving party must first identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).Only genuine disputes over material facts will prevent a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is material only if resolving it might change the outcome of the suit under governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A dispute about a material fact is genuine only if the evidence would allow a reasonable jury to return a verdict in favor of the non-moving party. Anderson, 447 U.S. at 248; Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994).
The existence of some doubt does not create a genuine issue of fact. "A party must present more than mere speculation or conjecture to defeat a summary judgment motion." Anderson, 477 U.S. at 252; Packman v. Chicago Tribune Co., 267 F.3d 628, 637 (7th Cir. 2001); Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1255 (7th Cir. 1997). The court must determine whether the evidence presents a disagreement sufficient to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Packman, 267 F.3d at 637. The court must construe all undisputed facts, additional evidence, and all reasonable inferences drawn therefrom, in a light most favorable to the non-moving party as well as view all reasonable inferences in that party's favor. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999); King v. Preferred Tech. Group, 166 F.3d 887, 890 (7th Cir. 1999); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir. 1999). "The court should neither `look the other way' to ignore genuine issues of material fact, nor `strain to find' material factual issues where there are none." Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1363-64 (7th Cir. 1988), quoting Sec'y of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987). The fact that cross-motions for summary judgment are before the court does not change the analysis. Thompson Hardwoods, Inc. v. Transp. Ins. Co., 2002 U.S. Dist. LEXIS 4592, at *4 (S.D. Ind. Mar. 15, 2002), citing Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).
Undisputed Facts
Because the court is granting IHP's motion for summary judgment, the facts set forth here are either undisputed or reflect disputed evidence in the light reasonably most favorable to Dowell. The court has not gone through the parallel exercise of laying out the facts in the light reasonably most favorable to IHP for purposes of Dowell's motion for summary judgment, which must be denied.
IHP is an incorporated physicians group that specializes in cardiac care. Regina Dowell began her full-time employment with IHP on December 4, 2000, performing data entry in the billing department. Dowell Dep. at 7. In April 2002, Dowell was transferred to her front desk clerk position, where she worked until her termination. Dowell Aff. ¶ 5. Dowell worked more than 1250 hours a year as a full-time employee. Dowell Aff. ¶ 6.
The IHP Family Medical Leave Program is contained in the Staff Policy Manual. Def. Ex. 7. The policy requires that all employees provide medical certification to be considered for FMLA leave. Failure to qualify for leave through medical certification results in denial of the request for leave. The Staff Policy Manual also contains IHP's Attendance and Tardiness policy. Def. Ex. 8. According to the policy, "A staff member having two consecutive days of nonscheduled absence who fails to contact his/her Team Leader or Management Team Member personally during that time period will be terminated." Id. Dowell was aware of the program and the attendance and termination policy prior to September 2002, as shown by her signature acknowledging that she read a copy of the policy manual on May 17, 2001. Dowell Dep. at 23; Def. Ex. 9.
In June 2002, Dowell notified IHP that she was pregnant and that she would need medical leave upon delivery. In accord with the IHP policy, on August 12, 2002, she submitted a formal written FMLA medical certification form to IHP to request medical leave after her delivery. In this first certification form ("Certification 1"], Dr. Thomas C. Wisler, Dowell's obstetrician-gynecologist, estimated a period of incapacity from January 17, 2003 to February 28, 2003. Pl. Ex. 1, Certification 1. According to Dr. Wisler, it was not necessary for Dowell to decrease her work schedule or to receive treatment other than prenatal visits until delivery, so she was not incapacitated at the time of Certification 1. On August 16, 2002, IHP relied on Certification 1 and granted Dowell's request for family medical leave due to pregnancy from her due date, January 17, 2003, until released by her physician. Def. Ex 17.
Dowell began experiencing depression related to her pregnancy in September 2002. Dowell Aff. ¶ 10. She had fears about being a mother for the first time and about "what was going to happen with her life after the baby was born." Dowell Dep. at 35-36. Dowell did not see Dr. Wisler or any other health care professional for her depression, and she did not receive any form of treatment for depression. Dowell Dep. at 56-58.
On September 5, 2002, Dowell called Dr. Wisler's office and reported her feelings of depression. She requested that Dr. Wisler recommend her for twelve weeks medical leave beginning on September 9, 2002. Dowell Dep. at 59-60.
Dowell was informed by IHP staff that they would fax an FMLA medical certification form to Dr. Wisler's office. The doctor's office completed the form ("Certification 2") and returned it to IHP on September 10, 2002 at 4:44 p.m. Def. Ex. 10. In Certification 2, Dr. Wisler provided several important pieces of information. He first stated that Dowell had a "serious health condition" that he identified as pregnancy or prenatal care. When asked to describe the medical facts supporting his decision, he wrote: "Patient phoned the office on 9/5/02 with complaints of emotional state depressed. Wants to take 12 weeks FMLA." Asked when the condition commenced, he answered "9/5/02." He answered that Dowell would be incapacitated through December 2, 2002. He also answered that she was then unable to perform work of any kind and unable to perform the essential functions of her own job. Def. Ex. 11. However, he also did not provide any description of any treatment regimen for Dowell. In response to question 7c, "is it necessary for the employee to be absent from work for treatment," the doctor checked the box indicating "no." Def. Ex. 11. Although Dr. Wisler completed Certification 2, Dowell's September 5, 2002 patient flow chart recorded that medical leave was "not the doctor's recommendation. [Patient] informed." Def. Ex 12.
Later on September 10, 2002, IHP contacted Dr. Wisler's office seeking clarification of Certification 2. Rather Aff. ¶ 25-27. After the phone call, Dr. Wisler's office completed an additional certification form ("Certification 3") and returned it to IHP on September 11, 2002 at 12:01 p.m. Def. Ex. 11; Rathers Aff. ¶ 27. In Certification 3, Dr. Wisler stated that Dowell was not currently incapacitated; that it was not necessary for her to be absent from work for treatment; and that she was able to perform the essential functions of her job. Def. Ex. 11. IHP relied on the information provided in Certification 3 and denied Dowell's September 5, 2002 request for medical leave. Rather Aff. ¶ 29.
Dowell's supervisor told her she should qualify for leave as long as she fulfilled her requirement and obtained a doctor's excuse. Dowell Dep. at 36, 48. Dowell's supervisor asked Dowell to remain in contact and to provide updates on her progress. Id. at 36. Dowell did not report to work on September 9, 10, or 11, 2002. Rather Aff. ¶ 22. Although Dowell had not requested Certification 3 and was not informed about it, Dowell Aff. ¶¶ 14, 18, she testified in her deposition that she received a call from her supervisor at IHP on September 11, 2002 informing her that her medical certification form did not qualify her for FMLA leave. Dowell Dep. at 47. Dowell was informed that she could take the remainder of the week off but would be required to return to work on Monday, September 16, 2002. Dowell Dep. at 50. Dowell did not contact IHP or Dr. Wisler during this time. Rather Aff. ¶ 31; Dowell Dep. at 52. When Dowell did not report to work on Monday, September 16, 2002 or Tuesday, September 17, 2002, she was terminated from IHP for violating the attendance policy. Def. Ex. 19; Rather Aff. ¶ 36.
Discussion
I. Dowell's Motion for Protective Order and Motion in Limine
Along with her motion for summary judgment, Dowell requested a protective order pursuant to Federal Rule of Civil Procedure 26(c)(4) to exclude evidence of medical records and Certification 3 pursuant to Federal Rule of Evidence 501, which recognizes evidentiary privileges:
Except as otherwise required by the Constitution . . . or provided by Act of Congress . . . the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience.
Fed.R.Evid. 501. In this federal case, the parties have briefed Indiana's law of privilege. At common law, communications between a physician and a patient were not privileged. In re C.P., 563 N.E.2d 1275, 1277 (Ind. 1990). In Indiana, the doctor-patient privilege is codified in Indiana Code § 34-46-3-1. "[B]ecause the physician-patient privilege statute is in derogation of the common law and impedes the search for truth, it is to be strictly construed." Darnell v. State, 674 N.E.2d 19, 21 (Ind.App. 1996)
The doctor-patient privilege "applies only to those communications necessary to treatment or diagnosis." Collins v. Bair, 268 N.E.2d 95, 97 (Ind. 1969); Corder v. State, 467 N.E.2d 409, 415 (Ind. 1984). The purpose is to protect communications between the patient and the doctor for the patient to receive necessary treatment or diagnosis. Thomas v. State, 656 N.E.2d 819, 822 (Ind.App. 1995). The medical record in question is the excerpt from the September 5, 2002 patient flow sheet documenting the phone call Dowell made to Dr. Wisler's office on that day. Def. Ex. 12. Dowell did not make the call for the purpose of treatment or diagnosis. Rather, she called to ask Dr. Wisler to fill out a medical certification form recommending her for medical leave for pregnancy-related depression and to submit it to her employer.
Even if the evidence could be deemed related to diagnosis or treatment, the privilege is waived as "to those matters causally and historically related to the condition put in issue and which have a direct medical relevance to the claim, counterclaim or defense made." Canfield v. Sandock, 563 N.E.2d 526, 529 (Ind. 1990), quoting Collins, 268 N.E.2d at 101. Only medical information unrelated to the condition at issue and irrelevant to the cause of action remains privileged and protected from discovery. Baker v. Whittaker, 182 N.E.2d 442, 445 (Ind.App. 1962). Because both Certification 3 and Dowell's September 5, 2002 patient flow sheet are central to the decisive issue in this case — whether plaintiff actually suffered from a serious health condition — they are not protected from discovery. Accordingly, the motion to suppress Certification 3 and Dowell's medical records related to this case is denied.
II. Family and Medical Leave Act
Congress enacted the FMLA in 1993 "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1). Congress designed the FMLA to accomplish the dual goals of "entitling employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition," and "accommodating the legitimate interests of employers." 29 U.S.C. § 2601(b)(1) (2).
The FMLA entitles an eligible employee with a "serious health condition" up to twelve weeks of medical leave. 29 U.S.C. § 2612(a)(1)(D). To prevail on her claim that her termination violated her rights under the FMLA, Dowell must prove: (1) she was an eligible employee under the FMLA, 29 U.S.C. § 2611(2); (2) defendant was an employer covered by the FMLA, 29 U.S.C. § 2611(4); (3) she was entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1); and (4) the defendant failed to reinstate her after she took leave properly under the FMLA. 29 U.S.C. § 2614(a)(1). For purposes of summary judgment, the parties agree that IHP is a covered employer and that Dowell was an eligible employee. She worked over 1250 hours during the year, and her employment exceeded one year.
An employer may require an employee to provide supporting certification from a health care provider. 29 U.S.C. § 2613(a). For certification to be sufficient, it must include: (1) the date the health condition began; (2) the probable duration of the condition; (3) the appropriate medical facts; and (4) a statement that the employee is unable to perform the functions of her position. 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306(b).
A. Dispute Resolution Mechanism
Under the FMLA, an employer may require the employee to obtain a second and third medical opinion. 29 U.S.C. § 2613(c). Dowell contends that because IHP made no effort to obtain a second or third opinion, it waived its right to challenge her medical entitlement under the FMLA. Dowell relies on district court decisions that have construed 29 U.S.C. § 2613 to require that an employer be bound by an initial certification that sufficiently establishes a serious health condition if the employer failed to challenge the certification by requiring additional medical opinions. Miller v. ATT, 60 F. Supp. 2d 574, 580 (S.D.W. Va. 1999); Sims v. Alameda-Contra Costa Transit Dist., 2 F. Supp. 2d 1253, 1263 (N.D. Cal. 1998); accord, Smith v. University of Chicago Hospitals, 2003 WL 22757754, *8-9 (N.D. Ill. Nov. 20, 2003) (granting employee's motion for summary judgment on issue of entitlement to FMLA leave where employer chose not to use the second and third opinion procedure). In all three of these cases, however, the courts took pains to emphasize that the original medical certifications were sufficient, if taken at face value, to establish a serious medical condition. See Miller, 60 F. Supp. 2d at 579; Sims, 2 F. Supp. 2d at 1263 ("AC Transit waived its right to litigate whether Sims had a serious health condition only if Sims' initial certification was sufficient to establish that he had such a condition."); Smith, 2003 WL 22757754 at *9. In Dowell's case, Certification 2 was insufficient on its face. It failed to provide any "medical facts which support the certification, including a brief statement as to how the medical facts meet the criteria of the definition." 29 C.F.R. § 825.306(b)(1). Also, while Certification 2 stated that Dowell was unable to work, it also failed to show any course of treatment for the supposedly disabling condition. IHP would have been acting within its rights if it had simply rejected Certification 2. Accordingly, the reasoning of Miller, Sims, and Smith does not apply to this case.
The Eighth Circuit and the Fourth Circuit have disagreed with Sims and Miller, though without addressing the detailed and persuasive reasoning of Sims. See Rhoads v. FDIC, 257 F.3d 373, 385 (4th Cir. 2001); Stekloff v. St. John's Mercy Health System, 218 F.3d 858, 860 (8th Cir. 2000). Both appellate courts pointed out that the statutory term "may" is permissive, of course. However, that point does not address the argument in Sims that the permitted procedure for resolving medical disagreements quickly and with doctors (rather than with judges and juries) should be the only procedure for an employer to challenge a facially sufficient medical certification of eligibility for leave. A different approach would, in Judge Lefkow's terms in Smith, render meaningless the statutory term "sufficient" and the law's protection for employee privacy. 2003 WL 22757754, *8.
B. Entitlement to FMLA Leave
Dowell began experiencing emotional problems in September 2002. She contends that her depression was a "serious health condition" that qualified her for leave under the FMLA. In deciding IHP's motion for summary judgment, the court will view the facts in the light most favorable to Dowell. Anderson, 477 U.S. at 255. The undisputed evidence shows that Dowell's depression did not amount to a "serious health condition" pursuant to the FMLA by itself or as related to her pregnancy. Incapacity due to pregnancy or for prenatal care qualifies as a serious health condition. 29 C.F.R. §§ 825.114(a)(2)(ii); 825.800. However, pregnancy per se does not automatically qualify as a serious health condition for purposes of FMLA. Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 952 (7th Cir. 2004). While the language of the statute is expansive, it is still subject to the principle of ejusdem generis. As such, the specific terms used in the statute guide the court in its application. United States v. Baranski, 484 F.2d 556, 566 (7th Cir. 1963).
The FMLA regulations specifically identify "severe morning sickness" as an example of a pregnancy-related ailment that could qualify as a serious health condition, without treatment from a healthcare provider. 29 C.F.R. §§ 825.800(5), 825.112(c), 825.114(a)(2)(ii) (e) ("an employee who is pregnant may be unable to report to work because of severe morning sickness"). The legislative history lists the types of pregnancy-related illnesses that Congress intended the FMLA to cover as "ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth." H.R. Rep. No. 8, pt. 1, at 29 (1993).
Dowell contends that her depression was related to pregnancy because it was rooted in her own feelings of fear about being a mother for the first time and "what was going to happen with [her] life after the baby was born." Dowell Dep. at 35-36. This unsupported claim is not sufficient. The court cannot accept a claim of pregnancy-related depression without diagnosis or treatment by a health care professional. Dowell's own assertion of a relationship between her depression and pregnancy does not automatically create a serious health condition.
To avoid summary judgment on this issue, Dowell must offer evidence from which a reasonable jury could find that her depression kept her from performing the functions of her job. See Haefling v. United Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir. 1999) (to avoid summary judgment, employee must point to evidence in the record showing that his injury fell within statutory and regulatory definitions of a "serious health condition"). Dowell's own opinion is not sufficient under the FMLA. She must offer evidence from a treating health care provider that her pregnancy and related depression qualified as a serious health condition. Haefling, 169 F.3d at 500 (plaintiff's "own self-serving assertions regarding the severity of his medical condition and the treatment it required are insufficient to raise an issue of fact on this point") (affirming summary judgment for employer); Joslin v. Rockwell Intern. Corp., 8 F. Supp. 2d 1158, 1160 (N.D. Iowa 1998) (granting summary judgment for employer).
Department of Labor regulations define a serious health condition as an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care, or (2) continuing treatment by a healthcare provider. 29 C.F.R. § 825.114. Dowell did not receive inpatient care. Dowell Dep. at 56-58. If she had a "serious health condition," it must be because of a condition that involved "continuing treatment by a healthcare provider." 29 U.S.C. § 2611(11)(B).
This "continuing treatment" standard requires Dowell to come forward with evidence that her condition resulted in a period of incapacity of more than three consecutive days that also involved either (a) treatment two or more times by a healthcare provider or (b) treatment by a healthcare provider on at least one occasion which resulted in a regimen of continuing treatment under the healthcare provider's supervision. 29 C.F.R. §§ 825.114(a)(1), (2); 825.800. Treatment includes but is not limited to examinations to determine if a serious health condition exists and evaluations of the condition; it does not include routine physical examinations. 29 C.F.R. § 825.114(b). "A regimen of continuing treatment" under 29 C.F.R. § 825.114(a)(2)(i)(B) includes "a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition." 29 C.F.R. § 825.114(b). Continuing treatment does not include self-treatment such as over the counter medication, bed-rest, or "similar activities that can be initiated without a visit to a healthcare provider." Haefling, 169 F.3d at 499; 29 C.F.R. § 825.114(b).
The relevant rule, 29 C.F.R. § 825.114, provides:
(a) For purposes of FMLA, "serious health condition" entitling an employee to FMLA leave means 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 health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a healthcare provider. A serious health condition involving continuing treatment by a healthcare provider includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily 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 healthcare provider, by a nurse or physician's assistant under direct supervision of a healthcare provider, or by a provider of healthcare services (e.g., physical therapist) under orders of, or on referral by, a healthcare provider; or
(B) Treatment by a healthcare provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the healthcare provider.
(ii) Any period of incapacity due to pregnancy, or for prenatal care. (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 healthcare provider, or by a nurse or physician's assistant under direct supervision of a healthcare provider;
(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.).
The undisputed evidence shows that Dowell did not receive treatment, inpatient care, medication, therapy, or other services on any occasion by any health care provider or other person for her depression either before or after her termination from IHP. Dowell Dep. at 56-57. Dowell never sought or received diagnosis of her depression and was not examined to determine whether a serous health condition existed. Dowell Dep., at 56-58. No doctor or other health care provider concluded that she was unable to work, apart from portions of the incomplete Certification 2, which Dr. Wisler effectively repudiated the next day when he submitted Certification 3.
Certification 2 does not present a genuine issue of material fact. In Dowell's September 5, 2002 patient flow sheet, Dr. Wisler's staff recorded that Dowell "called [complaining of] feelings of depression — wants to take 12 wks FMLA now. Informed [Dowell] that if she takes leave now her employer does not have to give her time off after delivery. Per Dr. Wisler — we can fill out the paper work that [patient] requests time off, that it's not the doctor's recommendation." Def. Ex. 12. Certification 2 was completed without any examination of the patient for a "serious health condition." Dr. Wisler never recommended that Dowell take FMLA leave for her complaint of pregnancy-related depression. Def. Ex. 11; Dowell Dep. at 62. Dr. Wisler restated that he did not recommend medical leave during the Indiana Department of Workforce Development's investigation into Dowell's unemployment benefit claim. Def. Ex. 14; Dowell Dep. at 61. The indisputable evidence shows that Dowell did not receive treatment from Dr. Wisler for her depression on any occasion.
In Certification 2, Dr. Wisler was asked to include a brief statement on how the medical facts support the definition of a "serious health condition" under the FMLA. Dr. Wisler replied, "Patient phoned the office on 9/5/02 with complaints of emotional state and depressed. Wants to take 12 weeks FMLA." Certification 2, at 1. This was Dowell's only contact with a health care provider regarding her depression. Dowell Dep. at 56-57. This statement by Dowell to her doctor's office was also the only available information that was available to support an opinion that she was incapacitated for twelve weeks by a condition that Dowell raised with the doctor for the first and only time on September 5th. This basis was obviously inadequate to support a finding of incapacity. Nevertheless, in Certification 2, questions 7a, "Is the employee unable to perform work of any kind," and 7b, "If some type of work is permissible, is the employee unable to perform one or more of the essential functions of the employee's job," were answered "yes." However, question 7c, "If neither questions 7a or 7b apply, is it necessary for the employee to be absent from work for treatment," was answered, "no." Certification 2, at 1-2.
Dowell's minimal contact with Dr. Wisler's office and the absence of any medical facts supporting the initial conclusion mean that a reasonable jury could not find on the basis of Certification 2 that she suffered from a serious health condition. Dr. Wisler's Certification 3 definitively resolved the contradiction by stating that Dowell was not incapacitated by her depression. Accordingly, the undisputed evidence shows that Dowell's claimed depression did not amount to a serious health condition entitling her to leave under the FMLA.
C. Opportunity to Correct and Clarify Documents
Dowell also claims that IHP violated the FMLA by failing to give her an opportunity to cure whatever deficiency existed in her medical certification form in violation of 29 C.F.R. § 825.305(d). The regulation provides in relevant part: "The employer shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency."
The undisputed evidence in this case shows that on September 10th, the same day that IHP received Certification 2 with its contradictory answers, IHP staff made a short phone call to Dr. Wisler's office asking for clarification. Rather Aff. ¶¶ 25-27. The next day, IHP received Certification 3 in response, which clearly showed that Dowell did not qualify for FMLA leave. Also on September 11th, IHP called Dowell and told her that the certification did not entitle her to FMLA leave. Dowell Dep. at 47. That contact was sufficient to give Dowell an opportunity to correct the deficiencies. Dowell did not make any further effort to contact IHP or Dr. Wisler or to provide further documentation of the effects of her depression. Nor did she seek any treatment or diagnosis.
"Where an employer requests from the employee and receives a physician's certification that indicates that an employee's serious health condition does not require [her] to miss work, the employer may rely on that certification until the employee provides a contradictory medical opinion." Stoops v. One Call Communications, Inc., 141 F.3d 309, 314 (7th Cir. 1998). Dowell has not attempted, even in this lawsuit, to come forward with medical evidence showing a serious health condition. Accordingly, any procedural error that might have been made in failing to give Dowell more specific information is indisputably harmless.
This point is parallel to the law under the Americans with Disabilities Act, which calls upon employers and employees to work together to identify reasonable accommodations for employees with disabilities. A refusal to engage in an interactive process to discuss reasonable accommodations is not in itself a violation of the ADA; the burden remains on the employee to show that a reasonable accommodation was possible. Rehling v. City of Chicago, 207 F.3d 1009, 1015-16 (7th Cir. 2000); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563-64 (7th Cir. 1996). Similarly here, Dowell has not come forward with any evidence that would allow a jury to find that she was actually incapacitated by a serious health condition; she has instead concentrated all her efforts on convincing the court that it should ignore Certification 3.
D. Direct Contact with the Doctor
Dowell contends, however, that she should still prevail in this case based on a civil version of the exclusionary rule. Her theory is that IHP violated FMLA regulations by contacting Dr. Wisler's office for clarification of Certification 2 without first obtaining Dowell's permission. The applicable regulation, 29 C.F.R. § 825.307(a), provides in relevant part: "If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, 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." Dowell contends that IHP "should not be permitted to gain" from its violation of this regulation. She contends the proper remedy is to exclude Certification 3 from the court's consideration. She has cited no case reaching a similar result.
Even assuming that the short, innocuous, and common-sense phone call on September 10th asking for clarification violated § 825.307(a), that contact alone could not support a claim for damages without a showing that the violation of the regulation interfered with the employee's statutory FMLA rights that support claims for relief. See 29 U.S.C. § 2615(a)(1); Whitney v. Wal-Mart Stores, Inc., 2003 WL 22961210, *10, *12 (D. Maine Dec. 16, 2003) (granting summary judgment for defendant on claim for violation of § 825.307(a); court found no reported case in which the § 825.307 was the basis for a cause of action).
Dowell has not submitted evidence that IHP's phone call for clarification interfered with her statutory FMLA rights, and no other evidence was presented. Alifano v. Merck Co., 175 F. Supp. 2d 792, 794 (E.D. Pa. 2001) ("In order for Plaintiff to state a cause of action for interference with her FMLA rights, she must claim that the alleged interference caused her to forfeit her FMLA protections."). There is no evidence that IHP tried to influence or persuade Dr. Wisler, let alone that he was in fact influenced or persuaded. IHP's action did not prejudice Dowell. IHP would have acted within its rights in rejecting Certification 2 because it failed to provide any medical facts supporting a claim of incapacity and because it did not show any course of treatment for the alleged condition (which was described as having begun on September 5th, based only on a phone call that day). If IHP had called Dowell to get her permission to contact Dr. Wisler for clarification and if she had refused, there can be no doubt that her FMLA request would have been rejected. If she had granted permission, IHP would still have received Certification 3. Under any scenario the result is the same: Dowell did not qualify for FMLA leave. A reasonable jury could not find that Dowell's condition met the definition of a serious health condition.
Conclusion
For the foregoing reasons, the court hereby denies Dowell's motion for summary judgment and grants IHP's motion for summary judgment. Final judgment will be entered in favor of defendant IHP.
So ordered.