*3 HEYBURN, Chief Judge.* District BATCHELDER, J„ delivered the opinion MERRITT, of the court. (pp. J. 583-84), separate delivered a opinion in all concurring except sections for HEYBURN, Section II.A.2. 584), D.J. (p. separate delivered concurring in analysis and result. OPINION BATCHELDER, ALICE M. Circuit Judge. (“Novak”)
Plaintiff Donna Novak ap- peals the district court’s of summary * II, Heyburn Honorable John G. Kentucky, Chief District sitting by designation. Judge United States District the Western period, Novak— During March Metro- Defendant favor of judgment Metro- (“MetroHealth”) company policy pursuant Center Health Medical —called provide absent day she was under Health each brought claims employment 22, report- (“FMLA”), she March explanation. On Act an Leave Family Medical baby. argues having seq. daughter § 2601 et that her ed U.S.C. request late to work 23, arrived denied illegally March On MetroHealth leave, claiming that she On explanation. providing without back leave because that she could she stated entitled March condi- Similarly, a serious injury pain.” amounted “back work because alternatively, Act, that her “back reported tion March to care FMLA leave was entitled Saturday March On was out.” *4 suffering from child who was adult her explaining: supervisor, emailed her we con- Because depression. postpartum emergency on a[n] I need to be off will not meritori- are these claims clude that [ljeave til Thurs- Monday 3/29/04 court’s the district ous, AFFIRM we suffering daughter is My day 4/1/04. of Novak’s claim summary judgment and Depression, [sic] Partum from Post because we con- But FMLA interference. only 5 who is my grandchild her son should have district court that the clude to Metro been readmitted days old has dismissed, Novak’s remanded, than rather my help in need of and both are [HJealth claims, and RE- we VACATE law state myself I am expertise and NOW. the district court claims to MAND those back well[;] having I have been doing to the them to remand instructions any in- apologize I for again. problems they were removed. from which court state may cause. this [sic] conviences 29, alleging that she May called on Background I. 31, claim- “sick,” and on March was counselor a financial as Novak worked were grandson daughter her ing that periods relevant For all MetroHealth. for ill. main- MetroHealth employment, of her exceeded had Realizing that she policy a attendance tained no-fault attendance under MetroHealth’s points based on employees points to assigned her FMLA leave sought policy, of unexcused number hours employee’s 30, absences, March and on March 2004 such Approved absences absence. (“Dr. Patil 2004, Dr. Ashok in the visited included were FMLA leave injury.1 Patil”) back points her lower regarding calculated MetroHealth point total. time, treated period, and had been 12-month time Prior this a rolling (“Dr. Wloszek”), progressive who policy. mandated attendance Dr. Wloszek Monica discharge when culminating in Metro- discipline, record with physician was during points accrued 112 that MetroHealth’s Novak claims Health. period. 12-month told Whitney (“Whitney”) Manager Janet form must FMLA certification she accrued after terminated Novak was record, physician by the completed 16, between points April Patil; Wloszek, by Dr. rather than Dr. 16, absences result- final April testimony and however, deposition in late occurred discharged ing in her back, which lower injury previous diagnosis her treat- 1. Novak used events These by the Bureau. granted pursue a workers’ Dr. Patil to ment with law state claim basis of Novak's form July she filed compensation claim. In compensation retaliation. aggravation workers' compensation claim workers' entirely affidavit are unclear regarding ek on her specifically recounting Whitney or when told her that Dr. Wlosz- what Dr. Patil had told her during her ek complete must the form. examination, March 30 and Dr. Wloszek completed the form based on this second-
In early April Novak sent an hand information. This was the third cer- FMLA certification form to Dr. Wloszek’s tification form submitted by office. Dr. Dr. Wloszek Wloszek. filled the form out The next day Dr. MetroHealth, faxed it to Wloszek contacted but because Whit- Dr. ney to Wloszek inform her had not provided examined Novak had since October required she omitted secondhand infor- information used to com- mation, plete as a description such of the medi- third certification form. cal facts likely and the duration of Novak’s During suspension “pre-dis- condition. learning After that the certifi- charge” meeting, Novak submitted addi- incomplete, Novak contacted tional certification forms. One of these assistant, Dr. Boda, Wloszek’s Erika and forms, completed by Schubeck, Dr. Dianne insisted complete that she the remainder stated that Novak’s eighteen-year-old of the form and fax it to MetroHealth. daughter, (“Victoria”), Victoria Novak had Novak told Boda what to write in the given birth 22, 2004, on March suffered *5 empty spaces, and Boda complied with No- from postpartum depression, and was un- requests vak’s without obtaining Dr. able to child, care for her newborn Rafael. Wloszek’s permission. This was the sec- Dr. Schubeck also noted that Victoria’s ond FMLA certification form submitted by condition would last for a period, one-week Dr. Wloszek. and Novak needed to assist Victoria in 9, April 2004, On MetroHealth held a caring for Rafael during this time. Novak “pre-discharge” meeting with Novak and also a submitted certification form com- her union representative to discuss wheth- pleted by Mary Dr. Massie-Story, stating er her March 2004 qualified absences un- that Rafael sick and Novak needed to der the FMLA. Because MetroHealth assist with his care. questioned the of Dr. authenticity Wlosz- When MetroHealth reconvened “pre- its forms, ek’s certification it asked Novak to discharge” meeting 16, on April 2004, it execute a authorizing release MetroHealth determined that Novak’s March 2004 ab- to Wloszek, contact Dr. and Novak com- sences qualify did not for FMLA leave and plied with request. a After brief dis- noted that provided she had “contradictory cussion parties, between the MetroHealth information” that did not qualify for leave decided suspend meeting April until any under policy. Because Novak’s ab- 16, allowing Novak another week to submit sences were not authorized under additional certification forms. Whitney FMLA, she was points assessed for all the then contacted Dr. Wloszek to authenticate hours, missed work points because the the previously submitted certification 124, now totaled MetroHealth terminated forms. Dr. Wloszek informed Whitney her under the attendance policy. that she had treated Novak since Octo- 2003, ber personal lacked knowledge of 6, On August 2004, Novak filed suit Novak’s problems, March 2004 back and against MetroHealth in the Cuyahoga did not complete the entire certification County Court of Common Pleas alleging form. three employment counts of discrimination
A few days later, 12, under April Ohio law. Shortly thereafter, No- asked Dr. Wloszek submit another certi- vak her complaint, amended adding federal fication form. Novak updated Dr. claims, Wlosz- FMLA and MetroHealth removed
577
v.
Indus.
Elec.
Co.
Matsushita
ing party.
The amended
court.
to federal
the case
587,
574,
Corp., 475 U.S.
un- Zenith Radio
race discrimination
alleged
complaint
(1986). “To
1348,
L.Ed.2d 538
retal-
compensation
S.Ct.
law, workers’
Ohio
der
the non-
interference,
summary judgment,
law, FMLA
withstand
Ohio
iation
evidence
MetroHealth
sufficient
show
must
FMLA retaliation.
movant
No-
fact.”
on all
of material
judgment
summary
genuine issue
a
create
moved for
Co.,
granted
Entm’t
Gaylord
court
claims,
the district
v.
vak’s
Prebilich-Holland
(citing
no basis
Finding
the motion.
297 F.3d
337,
them
Bank,
claims,
dismissed
court
916 F.2d
First Am.
Klepper v.
declined
the court
(6th Cir.1990)).
A mere scintilla
prejudice,
over
jurisdiction
supplemental
insufficient; “there must
exercise
evidence
dismissing them without
claims,
could reason-
jury
state law
on which
evidence
timely
notice
filed
prejudice.
Anderson
ably
[non-movant].”
find for
appeal.
Inc., 477 U.S.
Lobby,
Liberty
(1986).
L.Ed.2d
106 S.Ct.
Analysis
II.
appropri-
judgment
summary
Entry of
arguments.
raises two
appeal
On
to make
who fails
party
“against
ate
court
district
that the
First,
contends
exis-
to establish
showing sufficient
summary judgment
granting
erred
par-
essential
element
of an
tence
inter-
claim of
MetroHealth
will bear
case,
party
which
and on
ty’s
the dis-
Second,
challenges
ference.
Celotex
at
trial.”
proof
the burden
law
her state
dismissal
trict court’s
317, 322, 106
Catrett, 477 U.S.
Corp.
have
should
the court
claims,
arguing
(1986).
2548, 91 L.Ed.2d
S.Ct.
court.2
to state
those claims
remanded
*6
shall
“[i]t
that
states
The FMLA
to interfere
employer
any
unlawful
Claim
Interference
A. FMLA
of or
the exercise
restrain,
deny
with,
the district
argues
any right provided
exercise
attempt to
the
judg
summary
granting
by
court erred
2615(a)(1).
§
U.S.C.
29
Act].”
this
[by
claim.
interference
FMLA
ment on
prohibits
FMLA
the
specifically,
More
court’s
a district
novo
de
review
counting FMLA
employer
using
same
the
summary judgment,
“no fault”
its
employee
against an
court.
district
by the
applied
standard
v. Med-
Brenneman
policy.
attendance
(6th
Mehra,
689
F.3d
186
Williams
412, 422
366 F.3d
Sys.,
Health
Central
banc).
judgment
Cir.1999) (en
Summary
825.220(c)).
§
29 C.F.R.
(citing
depositions,
pleadings,
if “the
proper
de
been
they have
believing
Employees
and admissions
interrogatories,
answers
may assert
rights
FMLA
their
nied
affidavits,
any,
file,
with the
together
interference.
action
cause
as to
issue
genuine
no
there
show
Tenn., Inc., 454
Auto.
Yorozu
Killian v.
moving par
and that
fact
any material
Cir.2006).
prevail
To
F.3d
a matter
as
judgment
ato
ty is entitled
claim,
plaintiff
interference
an FMLA
56(c).
reviewing a
In
Fed.R.Civ.P.
law.”
(1)
eligible
anwas
must establish
view
judgment, we
summary
motion
(2)
FMLA;
under the
as defined
facts,
any inferences
evidence,
all
employer
a covered
employer
the nonmov-
favorable
most
light
in the
state law claims.
of her
retaliation
raise the
does
2. Novak
merits
raise
appeal, nor does she
claim on
(3)
FMLA;
defined under the
she was
ee is unable to perform
job
duties.
(4)
entitled to
FMLA;
leave under the
she Brenneman,
579 During certifications. additional obtain to condi- current Novak’s knowledge sonal extension, submitted Novak the one-week its burden satisfied tion, MetroHealth certifications&emdash;one Dr. from more three unrelia- was certification the showing that post- daughter’s her regarding Schubeck to refusing in reasonably acted ble, it and Dr. Massie- from one depression, partum basis. on that FMLA illness, grandson’s her regarding Story MetroHealth argues that Novak regarding Wloszek Dr. another and deficiencies of the advised should have regulations Although the injury. her back allowed and certification Dr. Wloszek’s in a “reason- what constitutes define do to correct opportunity a reasonable defi- certification to cure opportunity” able an that recognized have indeed them. We that to hold hesitate ciencies, we do certifi employee’s an finds who employer seeking duty its satisfied MetroHealth duty has “incomplete” submit- previously to authenticate and deficiency the employee the inform by permitting forms certification ted oppor “reasonable employee provide forms. additional three to submit Mate v. Rinker it. Sorrell to cure tunity” if Metro- that argues next (6th Cir. 337 F.3d 395 Corp., rials the certifica satisfied was not Health 825.305(d)); § 2005) C.F.R. (citing 29 Wloszek, it should by Dr. provided tion Team, 394 Med v. Professional Hoffman deny before opinion second sought a have 29 (citing 414, 418 F.3d so, do leave, having failed ing Moreover, have 825.305(d)). we § C.F.R. challenging from thereafter precluded was courts that other recognized previously that states her certification. employers when duty on this impose will doubt has reason [who] “employer an merely “inade is certification certification [employee’s] validity of See “incomplete.” than rather quate,” expense at may require, ... Strickland (citing at Sorrell, F.3d obtain eligible that employer, Bd., F.3d Sewer &Works v. Water provid a second opinion Cir.2001); Baldwin- n. 12 2613(c)(1) (emphasis U.S.C. ent.]” Corp., 307 Sys. Data Elec. Love recognized added). previously have (M.D.Ala.2004)). F.Supp.2d 2613(c)(1) 29 U.S.C. language that the deciding Assuming without “im does not “merely permissive” here, find we triggered employ on an “duty” duty this an affirmative pose[] duty its clearly satisfied Other at 337. Sorrell, MetroHealth er.” See certification have similar that her issue addressing inform this circuits a reason its foregoes her with employer to provide ly deficient found deficiency. not thereafter to cure opportunity a second right able validity Me- meeting, contesting the “pre-discharge” the first precluded At *8 health condition. Wloszek’s Dr. serious employee’s told Novak an troHealth FDIC, and ob “insufficient” See Rhoads certification lan plain Cir.2001) Dr. that “the (noting contact permission tained suggest does it. See [FMLA] guage to authenticate order Wloszek second [a pursue (“[A] must 825.307(a) employer care health an § C.F.R. foreclosed be forever may or opinion] employer representing provider suffered an whether challenging provid health employee’s contact condition”); serious from a Stekloff permission, employee’s er, with 218 F.3d Sys., Health Mercy authenticity v. St. John’s of clarification purposes “read (refusing to certification.”). Metro- the medical employer 2613(c)(1) requiring an as week extra an granted Novak also Health obtain second any else waive already submitted two certification forms future opportunity to validity contest the on her behalf. Realizing the problematic certification”). But see Sims timing date, of this attempted Alameda-Contra Dist., Costa Transit 2 retreat ultimately but failed give F.Supp.2d 1253,1255 (N.D.Cal.1998) (hold explanation. alternative We therefore ing that “where the employer did not seek conclude that her deposition testimony a subsequent medical opinion within a rea failed to genuine raise a issue as to this period sonable time after the employee (cid:127)fact. submitted his initial certification of a seri any event, In this fact is not material to ous health the employer may not our resolution of this case. Novak never challenge now validity ... of the initial attempted to submit a certification form medical certification submitted the em completed by Patil, Dr. nor does she indi- ployee”). We continue to view the lan cate that Dr. Patil willing provide guage 2613(c)(1) of U.S.C. merely such certification. troubling More is the permissive; therefore an employer’s fail fact that Novak had never visited Dr. Patil ure to require a second certification does before March but she sought certifica- preclude the employer from contesting tion for FMLA leave beginning on March the employee’s certification. We find No 22. Because March 30 the first time Dr. vak’s argument to the contrary meritless. Patil Novak, examined it is doubtful that Finally, Novak contends that the he could have attested to her back condi- district court erred in granting summary tion on March 22. Furthermore, Novak judgment to MetroHealth because there is did not complain to MetroHealth of back dispute factual as to whether Metro- problems on March 30 31; or March in- Health’s Manager Whitney told Novak stead her stated reason for not reporting that she must submit a certification form to work days on those was that she needed Wloszek, Dr. rather than her new to care for her daughter grandson. doctor, Dr. Patil. She further argues that Therefore, even assuming that Metro- it is fundamentally unfair for MetroHealth Health refused accept certification from to insist that she obtain certification from Patil, Dr. that fact is immaterial because Wlosezek, Dr. who was no longer her Novak provided neither certification from treating physician, and then reject that Dr. Patil nor indicated that he was willing certification because Dr. Wloszek lacked to provide certification, given the tim- personal knowledge of her recent back ing of Dr. Patil’s treatment her and problems. We conclude Novak has contradictory reasons missing work, it not created a genuine issue of material is doubtful that he would have been able to fact. In Novak’s deposition, Metro- provide adequate certification. Health’s counsel repeatedly asked her We find no error in the district court’s about Whitney’s statement that the certifi conclusion that Novak was not entitled to form must come from Dr. Wloszek. FMLA leave because of a Novak’s responses serious health to these inquiries were condition. wholly inadequate to create a genuine is sue of fact. She nearly evaded every 2. Care for an Adult Child as an question, and in those few instances where FMLA-qualifying Reason to Miss she was responsive, her answers were vir *9 Work tually unintelligble and utterly contradicto ry. She first stated Whitney that told her Novak alternatively sought of the requirement certification April 9, FMLA leave to care for 18-year-old her but this date was after Dr. Wloszek had daughter, Victoria, who was suffering from are terms individual,” these as an ties of de- postpartum with struggle a short-term the Ameri for regulations the defined employ- an permits FMLA pression.3 (“ADA”). 29 Act Disabilities with cans for a care to work leave to take ee words, an 825.113(c)(2). In other § a C.F.R. suffering child or spouse, parent, care to leave FMLA may take employee 29 U.S.C. condition. health serious is child only if that child an adult for authorizes 2612(a)(1)(C). The § We the ADA. of purposes or for age of “disabled” years child a care for to leave child’s the adult evaluate from a therefore suffering must is the child only older if statute, regula ADA the of under “incapable condition and condition serious of whether The issue tions, case law. physical or and a mental because self-care her 2611(12)(B). turns whether No- disabled § Victoria is 29 U.S.C. disability.” depression— postpartum any evidence provide impairment i.e., not did tably, Novak — life major in her a was in substantially limited that Victoria certification or medical provide rather, herself; regulations The ADA activity.4 for to care unable fact lim “substantially all testimony is an individual and Victoria’s that certification activity for she caring life difficulty in major a in it[ed]” to Victoria’s related restrict (i.e., grand- significantly or Novak’s perform child unable newborn manner, an or duration not entitle child). FMLA does to the But ed as activity. a major life to care order a performs in to leave in she which “sub contends term 1630.2(j)(l). The § nevertheless 29 C.F.R. grandchild. or bout temporary a “considerable” daughter’s suggests that stantial” Mfg., amounted depression Toyota Motor limitation. postpartum “large” thus 184, 196, and disability,” Williams, physical 534 U.S. or “mental Inc. v. Ky., to care (2002). leave entitled L.Ed.2d was she 122 S.Ct. postpar- Victoria’s that conclude an individual We determining her. whether When a “dis- constitute did not depression performing in tum limited substantially is defined term ability,” as that consider should courts activity, major life did not the FMLA FMLA, severity and therefore (1) the nature factors: three for her. (2) or authorize the duration impairment; impairment, duration expected regula the FMLA According to impact long-term or (3) permanent Labor, Secretary of by the forth set tions 1630.2(j)(2); § 29 C.F.R. impairment. in as used disability,” or mental “physical Coving City Inc. Group, also MX see 2611(12)(B), “physical means 29 U.S.C. (not Cir.2002) ton, 293 F.3d substantially that impairment mental im- of “substantial evaluation ing activi- major life or more one limits was stating she lived, expressly short affidavit, was that her states In Victoria's weeks.” couple of “a within ''better” par- preceded depression postpartum syn- stress post-traumatic by the tially caused life "major allege which held-up at does not being 4. Novak after experienced drome by Victo- substantially limited activity” was of her eighth month during the gunpoint will assume depression. postpartum certifi- ria's Dr. Schubeck’s Because pregnancy. in- analysis our purposes of depres- postpartum only to form attests substantially argue Victoria syndrome, tends stress sion, post-traumatic caring for activity of major life accordingly. limited inquiry our confine we will Health Baptist Mem.'l See Moorer post- Victoria’s consider .herself. were if we Even Sys., Care affect would syndrome, it stress traumatic include major activities life (noting that Victoria case because of this the outcome oneself”) (quot- caring for such "functions stress post-traumatic acknowledged that her 1630.2(i)). ing 29 C.F.R. depression, postpartum syndrome, like *10 pairment” requires “an assessment of the “a couple weeks.” Such a short-term re- severity long-term impact of the im- striction on major life activity generally pairment”). The EEOC’s interpretive does not constitute a Hein, disability. See guidance for the provides ADA that “tem- 232 F.3d at Third, Novak not has porary, non-chronic impairments of short produced any evidence indicating that Vic- duration, with little or long no term or postpartum toria’s depression any inflicted permanent impact, are usually not disabili- permanent long-term or impact on her ties.” 29 1630, Pt. C.F.R. App 1630.2(3). fact, In health. the record evidence is to Similarly, Supreme Court and this cir- the contrary, demonstrating that Victoria cuit have recognized that an impairment recovered in a period short time, generally must “permanent be long- no giving indication that she any endured term” to qualify as substantially limiting long-term adverse effects. Because See, under the ADA. e.g., Toyota Motor, has not established that her adult daugh- 198,122 534 U.S. at S.Ct. 681 (holding that ter suffered from a disability, the FMLA an impairment in performing manual tasks does not authorize Novak’s leave to care must be “permanent or long term” in or- for her. qualify der to as a substantial limitation); argues that we should follow the
Hein v. All Am. Plywood Co.,
First Circuit’s
in
decision Navarro v. Pfiz
(6th Cir.2000)
(noting that “short-
er Corp.,
(1st
261 F.3d
Cir.2001).
term temporary
major
restrictions on
life Without expressing
on the First
activities
generally
are
not disabilities un- Circuit’s decision in
case,
we note that
ADA”).
der the
even if we were to adopt the First Circuit’s
position in
case,
conclude,
it
would
based
our
evalua
alter our
tion of all
conclusions
here. The
factors,
relevant
court in
that No-
Navarro
vak’s
declared
daughter, Victoria,
was not
EEOC’s interpretive
substan
tially
guidance
major
limited
any
life
ADA&emdash;stating
activities-
tem
such as the
porary,
activity of caring for
non-chronic impairments
oneself-
of short
and therefore
duration
was not
are usually
disabilities,
disabled for
pur
see 29
poses of the
First,
C.F.R.
FMLA.
Pt.
§App
1630.2(j)-“cannot
has not
presented
sufficient
applied
evidence for
jury
FMLA because it clashes
conclude that
Victoria’s
impairment
underlying purposes
of [that] stat
severe. Other
Navarro,
than Dr.
ute.”
Schubeck’s certifi
583 are dismissed claims federal all “When ruling Novak’s compel would it of considerations trial, balance the before favor. state dismissing the to point will usually when Congress, that short, note we In to state them remanding claims, or law be- FMLA, differentiated enacting the Musson removed.” if the action court of 18 age the under children tween Corp., 89 Express v. Federal Theatrical in defin- or older age of years 18 children Cir.1996). (6th Be 1244, 1254-55 F.3d em- care for whose persons those ing dismissed district the court cause work. from leave take to is entitled ployee properly could claims, the court federal “dis- of in terms is defined That difference jurisdic supplemental exercise to refuse 2611(12) (defin- 29 U.S.C. ability.” See In law claims. state pendant the tion over leave FMLA of purposes for ing “child” federal to removed been have cases (2) a or age” of years 18 (1) “under a child recognized however, we have court, incapa- or older age of years “18 child dis been have claims federal all “when or mental of a because self-care of ble tois trial, best the course missed before 103-8, at S.Rep. No. disability”); physical to state the claims law the state remand U.S.C.C.A.N. (1993), in 1993 reprinted 22 removed.” case was the which court circum- special “in (recognizing Inc., 397 DaimlerChrysler, v. Thurman or mental has a a child stances, where Cir.2004). the Because F.3d for paren- need disability, a child’s physical No- have remanded should court district or he when end may not care tal dismiss claims, than rather law state vak’s Con- Whatever age”). of years reaches of her the dismissal them, vacate we ing leave limiting FMLA for reasons gress’s may claims those so that claims law state to child for one’s caring purposes for court the state to remanded are who children adult children minor (i.e., Cuyahoga the they came whence clear. itself disabled, limitation the Pleas). Common County Court Vic- for sought leave Here, Novak it child—but adult non-disabled toria —her Conclusion III. con- system statutory clear, the reasons, we AFFIRM foregoing For is not Congress, that structed summary judg- court’s the district purposes. for such leave FMLA entitled of MetroHealth in favor ment dis- in the error no we find Accordingly, of Novak’s dismissal corresponding conclusion trict court’s of No- the dismissal VACATE claims. We leave. entitled REMAND claims law state vak’s No- re- Dismissal instructions Court’s with District court B. district Coun- Cuyahoga Law Claims vak’s State claims those mand Pleas. of Common ty Court fed dismissing Novak’s After de court claims, district eral FMLA concurring. Judge, MERRITT, Circuit jurisdiction supplemental to exercise clined Judge sections in all concur I for review claims. law state over II. for Section except opinion, Batchelder’s refusal a district court’s of discretion abuse eligibility plaintiffs A.2, concerning jurisdiction. supplemental to exercise daughter. caring Inc., 994 medical Hosp., Gen. Marion Landefeld First analysis of the with agree I Cir.1993). A district 1178, Corp., in Navarro Circuit supplemental Pfizer to exercise may decline court Cir.2001). with agree I (1st it has F.3d claims law over state jurisdiction but subject, on this Circuit’s First orig it had over which claims all dismissed that, even Judge Batchelder 1367(c)(3). agree I 28 U.S.C. jurisdiction. inal *12 so, plaintiff in the instant case does not
meet the First Circuit standard. There is
no showing that the depression of the
plaintiffs daughter ofwas such duration or
severity that it would allow the plaintiff
medical for caring for her. The
plaintiff made haphazard out a sort of case
that does not show a serious medical emer-
gency.
HEYBURN, Chief District Judge,
concurring.
I concur in the analysis and result
Judge opinion, Batchelder’s except that I
do not express an opinion concerning the
standard adopted in Section II.A.2. of that
opinion. Judge Batchelder adopts a stan-
dard whereby short-term restrictions on
major life activities generally do not con-
stitute a disability under the FMLA.
Judge Merritt adopt would the standard set forth in Navarro Corp., 261 Pfizer (1st Cir.2001).
F.3d 90 I find it unneces-
sary to take either side in order to resolve case,
this because I conclude, as my have
two fellow judges, that Novak has met
neither standard. KELLY,
Michael as Administrator
the Estate Kelly, Everett deceased Kelly, Patti Plaintiffs-Appellants,
MARTIN & BAYLEY, INC., d/b/a
Huck’s Convenience Store and Philip Inc.,
Morris Defendants-Appellees.
No. 06-1756. David C. Frederick (argued), Kellog, United Huber, States Court Hansen, of Appeals, Evans, Todd & Washing- ton,
Seventh DC, Circuit. Donald Flack, M. Tillery, Korein Belleville, IL, for Plaintiffs-Appellants. Argued Sept. 2007. Decided Sept. Jeffrey M. Wagner (argued), Winston &
Strawn, Chicago, IL, for Defendants-Ap- pellees.