The full case caption appears at the
end of this opinion. The Family and MedicalLeave Act entitles an eligible employee to up to12 weeks of leave during any 12 month periodbecause of “a serious health condition.” 29U.S.C. sec. 2612(a)(1)(D). The employer mayrequire certification from the employee’sphysician (or other health care provider) thatthe employee indeed has such a condition, 29U.S.C. sec. 2613(a), but if he does so he must(if the health condition was unforeseeable) givethe employee at least 15 calendar days in whichto submit it. 29 C.F.R. sec. 825.305. (Theemployer can fix a more generous deadline if hewants, 29 U.S.C. sec. 2613; 29 C.F.R. sec.825.305(b)–can, indeed, if he wants, dispensewith the requirement altogether. See Thorson v.Gemini, Inc., No. 99-1656, 2000 WL 236404, at *7(8th Cir. Mar. 3, 2000).) Although theregulations contain a sample certification form,29 C.F.R. sec. 825 app. B, they do not requirethe employer to use it; but the employer isrequired to notify the employee promptly and inwriting of the 15 day deadline and theconsequences of not complying with it. sec.sec.825.301, .305. This suit alleges a violation ofthe 15 day rule. The district judge grantedsummary judgment for the defendant, and so wemust construe the facts as favorably to theplaintiff as the record permits. On December 15, 1997, Julie Rager, an FMLA-eligible employee of Dade Behring, becamescheduled to have surgery a week later to excisean infected gland. She reported her impendingabsence for the surgery to her immediatesupervisor the same day, and three days laterdiscussed the matter with both her supervisor anda member of the company’s human resources staff.She was told she’d be eligible for regular sickleave, or for paid short-term disability leaveonce she had 15 continuous days of absence, andshe was given a form to complete if she thoughtshe would qualify for the disability leave. Theform required medical documentation. It was alsoexplained to her that she might be eligible forlonger, though unpaid, leave under the Family andMedical Leave Act, and so she was given a”Request for Family Leave” form as well and toldthat if she decided to seek family leave shewould have to fill out still another form, namelya “Certification of Health Care Provider” form.She was not given that form, though it was madeclear to her that she couldn’t receive eithershort-term disability leave or family leavewithout medical documentation. She dropped off her completed “Request forFamily Leave” form on December 20 but didn’tprovide any medical documentation. The surgerywas performed as scheduled on December 22, andthe following day, still not having received anymedical documentation from Rager, Dade Behringsent her a certified letter repeating therequirement of medical documentation and pointingout that the documentation required by the short-term disability form would suffice. The December23 letter further informed her that unless shesubmitted the required documentation by January12 she would be fired because of the number ofunexcused absences from work that she would haveaccrued by then. On December 29 the company sent her the”Certification of Health Care Provider” formbecause she was “requesting a medical leave underthe Family and Medical Leave Act.” A letter senther two days later reiterated that she mustsubmit any required medical documentation byJanuary 12. The deadline passed without herresponding, and so she was fired. Rager argues that the 15 day period of notice towhich the Act entitled her began to run onDecember 31 because that’s when she received the”Certification of Health Provider” form; and shewas terminated fewer than 15 days later. Thecompany argues that the 15 day period began whenRager requested family leave on December 19, andso ended well before January 12. Neither iscorrect. Remember that the Act does not requirethe employer to request medical documentation ona particular form. All that is required is thatthe employee be informed in writing that he orshe has 15 days in which to submit proof of aserious health condition, and of the consequencesif it is not submitted within the deadline, whichin this case was termination because in theabsence of an entitlement under the Family andMedical Leave Act the plaintiff had no excuse forbeing absent from work from December 22 on. She was never told in writing in so many wordsthat she had 15 days to submit the medicaldocumentation required for family leave, and itis disputed whether she requested family leave onDecember 19. But the December 23 letter, bygiving her a deadline of January 12 forsubmission of all required medical documentationwhatever form of leave she was seeking, gave herall the information that the regulations requiredher to have, as well as more time to submit thedocumentation than the law requires. She had beentold that the medical documentation required forshort-term disability leave would suffice forfamily leave as well and had been given more than15 days to furnish that documentation. She kneweverything that the Act required that theemployer tell her. No doubt, however, like most other limitationsperiods, the 15 day deadline for submittingmedical documentation, or whatever longerdeadline the employer fixes, can be tolled, forexample by conduct by the employer that is deemedto equitably estop him to plead the expiration ofthe deadline as a defense to liability under theAct. Had Dade Behring told Rager to forget aboutthe January 12 deadline it had set–told her thatshe didn’t have to submit her medicaldocumentation until January 13–it could not havefired her for failing to submit it by January 12.Rager mentions equitable estoppel on one page ofher brief, but has made no effort to establishits elements, and it is unlikely that she coulddo so. It had been made clear to her at theoutset that she had to furnish medicaldocumentation by January 12 or lose her job. Andwhen it sent her the “Certification of HealthCare Provider” form, Dade Behring did not say orhint that she had additional time to complete andsubmit it. She doesn’t even argue that she reliedon her (mis)understanding of the law as givingher 15 days from the receipt of the form, or thatshe even knew of such an entitlement. Yet withoutreliance both actual and reasonable, there can beno finding of equitable estoppel. Level 3Communications, Inc. v. Federal Ins. Co., 168F.3d 956, 959 (7th Cir. 1999); Hentosh v. HermanM. Finch University of Health Sciences/TheChicago Medical School, 167 F.3d 1170, 1174 (7thCir. 1999); Athmer v. C.E.I. Equipment Co., 121F.3d 294, 296-97 (7th Cir. 1997); ParamountAviation Corp. v. Agusta, 178 F.3d 132, 147 n. 12(3d Cir. 1999). Another tolling provision that might come intoplay, equitable tolling, does not require anymisleading conduct by the defendant, only thatthe circumstances be such that the plaintiffcould not reasonably have been expected to actwithin the deadline. E.g., Taliani v. Chrans, 189F.3d 597 (7th Cir. 1999); Athmer v. C.E.I.Equipment Co., supra, 121 F.3d at 297; SantaMaria v. Pacific Bell, 202 F.3d 1170, 1178 (9thCir. 2000); Smith-Haynie v. District of Columbia,155 F.3d 575, 579 (D.C. Cir. 1998). This tollingprovision is actually in the regulations, 29 CFRsec. 825.305(b), and so by implication equitableestoppel is as well, which is merely anaggravated form of equitable tolling. Butequitable tolling is not argued and would notavail Rager if it were. She has given no reasonwhy she could not have submitted the requiredmedical documentation by January 12, or for thatmatter on the day of the surgery, December 22,when the surgeon told her she couldn’t return towork for four weeks. There is no suggestion thatduring the period of her convalescence followingthe operation she was physically or mentallydisabled in the slightest from attending to thepaperwork requirements incidental to theoperation. Even so, the form in which DadeBehring communicated to her the 15 day deadlinewas clumsy and potentially confusing; but shedoes not argue that she didn’t understand, wellbefore the 15 day period of required notice beganto run, that she had to get the medicaldocumentation to Dade Behring by January 12 inorder to be eligible for family leave. Affirmed.
FOOTNOTES
Rader v. Dade Behring, Inc. United States Court of Appeals For the Seventh Circuit No. 99-1400 Julie A. Rager Plaintiff-Appellant, v. Dade Behring, Inc., Defendant-Appellee. Appeal From: United States District Court for the Eastern District of Wisconsin Argued: December 9, 1999 Decided: April 10, 2000 Before: Posner, Coffey, and Manion
