Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP01-0788-C T/K-John Daniel Tinder, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before POSNER, ROVNER and SYKES, Circuit Judges.
Krzysztof Chalimoniuk*fn1 worked for Interstate Brands Corporation ("IBC"), a manufac- turer of baked goods, for fifteen years before he was terminated for excessive absenteeism. Chalimoniuk is an alcoholic and he sought treatment for that condition in his final days at IBC. He requested leave under the Family and Medical Leave Act ("FMLA") for an absence extending from July 29, 2000 to August 14, 2000.*fn2 From August 4 through August 11, he was hospitalized for treatment for alcohol dependence and acute withdrawal syndrome. On August 15, when he returned to work, he was terminated for absenteeism. The district court agreed with IBC that Chalimoniuk could not show he was entitled to FMLA leave for July 31, August 2 and August 3, all days that he was scheduled to work. His absences for those three days, combined with absences he had accumulated earlier, put him over the limit for absenteeism under IBC's attendance policy. Because he lacks evidence establishing his entitlement to FMLA leave for those three days, we affirm.
IBC has a points-based system for tracking and disciplining employees for absenteeism. A certain number of points are assessed to the employee based on the nature of the infraction. For example, an employee who is absent with an advanced call to IBC earns three points for each day of absence. An employee who is absent without calling in nets four points per day. On one end of the spectrum, a late return from lunch merits one point; on the other end, a failure to complete a shift with no note from a doctor results in a six-point assessment. The accumulation of twelve points leads to a written warning. Eighteen points warrant a written reprimand. Normally, twenty-four or more points result in discharge. For Chalimoniuk, for reasons that are not relevant here, the cut-off for discharge was thirty-two points. No points are accumulated under IBC's policy for an absence covered by FMLA. Prior to July 29, Chalimoniuk had accumulated twenty-three points.
Late in the evening of Friday, July 28, Chalimoniuk, who had been wrestling with alcoholism for some time, stopped on his way home from work and purchased a large quantity of alcohol. By his own account, on Friday night, Saturday and for part of Sunday, he drank enough alcohol to lose his memory for two or three days.*fn3 Chalimoniuk was scheduled to work in the Muffins Department at IBC on July 31 (Monday), August 2 (Wednesday), and August 3 (Thursday). On July 29, when his wife realized he had relapsed, she called Fairbanks Hospital to see if she could bring her husband in for treatment. Construing the evidence in favor of Chalimoniuk as we must on summary judgment, on that same day, Chalimoniuk signed a consent for disclosure, authorizing the hospital and his insurance company to share with each other medical information regarding his condition. On Tuesday, August 1, Chalimoniuk called his physician's office but the office was closed that day. On Wednesday, August 2, he called his doctor's office again, this time speaking to a nurse or receptionist who spoke to the doctor and referred Chalimoniuk to Fairbanks Hospital. On that same day, Chalimoniuk called Fairbanks Hospital and his insurance company to arrange his admission to the hospital. Chalimoniuk described the call to Fairbanks as a five to ten minute conversation to "[g]et some information, set [an] appointment." R. 51, Ex. A, at 146. A scheduled August 3 admission was moved to August 4 because of delays in obtaining insurance approval. On August 4, Chalimoniuk was admitted to Fairbanks for inpatient treatment of his alcoholism. He remained there through August 10, completing his treatment.
At some point in that process, Chalimoniuk requested FMLA forms from IBC. The company gave the "Certification of Health Care Provider" form to his wife on August 7, and he returned the completed form (hereafter "Certification") to IBC's assistant human resources manager, Tonia Gordon, on August 11. IBC's three-page form closely tracks form WH-380, a sample form provided by the Department of Labor that meets the minimum requirements under the applicable FMLA regulations. The physician who treated Chalimoniuk at Fairbanks Hospital, Dr. Stephen Pfeifer, completed the Certification. In particular, Dr. Pfeifer indicated that Chalimoniuk's "Serious Health Condition" involved "Absence Plus Treatment."*fn4 Absence Plus Treatment is defined, in relevant part, as a period of incapacity of more than three consecutive calendar days (including any subsequent treatment or incapacity relating to the same condition), that also involves (1) Treatment two or more times by a health care provider; or (2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider. 29 C.F.R. § 825.306; 29 C.F.R. pt. 825, App. B; U.S. Dept. of Labor Form WH-380, Rev'd December 1999. In another area of the Certification, where Dr. Pfeifer was asked to list the medical facts which supported the Certification, including a brief statement as to how those medical facts meet the criteria of the category he selected, he wrote, "Alcohol Dependence and Acute Withdrawal Syndrome. Hospitalized for W/D symptoms and treated successfully. Now sober and involved in counseling [and] AA." On the line asking for the "approximate date the condition commenced, and the probable duration of the condition (and also the probable duration of the patient's present incapacity, if different)," Dr. Pfeifer wrote "7/29 - 8/11. Return 8/14."
Also on August 11, Chalimoniuk submitted a Health Insurance Claim form to Gordon. This Mutual of Omaha form was required for an employee to be paid for an absence due to disability. Part of the required information on this form was the "Attending Physician's Statement." This part of the form was completed by Dr. Timothy Kelly, another physician affiliated with Fairbanks Hospital, who listed the disability as "Alcoholism 303.90" and stated that the "Dates of services" were "7.29.00 to 8.10.00."*fn5 Because a different physician had completed this form and because the dates of services varied slightly from the dates given on the Certification, Gordon contacted the patient records department at Fairbanks Hospital to clarify the dates that Chalimoniuk was at Fairbanks. A clerk at Fairbanks told her that Chalimoniuk had been admitted to the hospital on August 4. Gordon then contacted the Department of Labor to determine what part of Chalimoniuk's absence was covered by the FMLA. The Department of Labor referred her to the regulation on substance abuse. Subsection (d) of the relevant regulation provides:
Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.
29 C.F.R. § 825.114(d). Based on her discussion with the Department of Labor, her call to the records clerk and her reading of the regulation, Gordon concluded that Chalimoniuk's absences on July 29, August 2 and August 3 were not covered by the FMLA because those absences were not for treatment as that term is defined by the FMLA. Under company policy, Chalimoniuk accrued ten points for his absences on those days, resulting in thirty-three total points.
When Chalimoniuk returned to IBC on August 15, he met with defendant Tonia Gordon, a union representative, the head of the Cake Department (the Muffins Department was part of the Cake Department), and an assistant production manager. At this meeting, Chalimoniuk confirmed that he entered the hospital on August 4, and Gordon told him that the company was discharging him for exceeding the allowable number of points under its absenteeism policy. The parties dispute whether Chalimoniuk was intoxicated on July 29, August 2, and August 3, but there is no disagreement over two operative facts: Chalimoniuk was absent from work on those days and he did not commence inpatient treatment for alcoholism at Fairbanks Hospital until August 4. Chalimoniuk sued IBC and Gordon, alleging that his termination constituted a wrongful denial of FMLA benefits in violation of 29 U.S.C. § 2615(a)(1).*fn6 The district court found that Chalimoniuk lacked evidence that he was in treatment for alcoholism on July 29, August 2 and August 3, and therefore granted summary judgment in favor of the defendants. Chalimoniuk appeals.
On appeal, Chalimoniuk argues that the defendants should be estopped from challenging the sufficiency of his medical Certification because they did not do so at the time he submitted it. He contends that the defendants also should not be permitted to contest the validity of his Certification after ignoring the procedures set forth in 29 U.S.C. §§ 2613(c)-(d). Chalimoniuk asserts that summary judgment was entered improperly because there are disputed issues of material fact regarding whether he received treatment on July 31, August 2 or August 3. Our review is de novo. Global Relief Found., Inc. v. New York Times Co., 390 F.3d 973, 981 (7th Cir. 2004); Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002); Smith v. Severn, 129 F.3d 419, 425 (7th Cir. 1997). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We view the record in the light most favorable to the non-moving party ...