Shauna Saenz v. Harlingen Medical Center, L.P., et al

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Shauna Saenz v. Harlingen Medical Center, L.P., et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 2, 2010 N o . 09-40887 Lyle W. Cayce Clerk

S H A U N A J. SAENZ, Plaintiff - Appellant v. H A R L I N G E N MEDICAL CENTER, L.P.; MEDCATH INCORPORATED, D e fe n d a n t s - Appellees

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e DEMOSS, ELROD, and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge: Appellant Shauna Saenz ("Saenz") appeals the district court's grant of s u m m a r y judgment on her Family Medical Leave Act ("FMLA") claims against H a r lin g e n Medical Center ("Harlingen"). Saenz contends that the district court e r r e d when it granted summary judgment on the grounds that Saenz failed to c o m p ly with Harlingen's in-house FMLA notice procedure. Although this is a c l o s e question, we agree that the district court erred when it held Saenz to H a rlin gen 's heightened in-house procedure, and, further, we conclude that Saenz p r o v id e d the minimum required notice under FMLA's default requirements. Accordingly, we REVERSE the judgment of the district court and REMAND.

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No. 09-40887 I . FACTUAL & PROCEDURAL BACKGROUND T h e court must view the facts developed below in the light most favorable t o the non-moving party. United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 2 8 5 (5th Cir. 2006). Saenz was hired by Harlingen on December 31, 2003. In J u n e 2006, Saenz was diagnosed with partial complex epileptic seizures. Saenz's s e iz u r e s cause her to lose consciousness and, hence, become unable to perform h e r duties. In light of her condition, Saenz requested intermittent FMLA leave fo r her seizure condition. Harlingen, by way of its third-party administrator, T h e Hartford, granted Saenz's request in a letter dated August 26, 2006. The letter informed Saenz that she was approved for intermittent leave " fo r a serious medical condition" for the period from July 24, 2006 to July 24, 2 0 0 7 . The letter also stated that Saenz had to contact Harlingen by calling The H a r t fo r d no later than two days after each time she took leave pursuant to her i n t e r m itt e n t leave request. The letter warned that failure to provide the

n e c e s s a r y notice could result in the loss of her protection under the FMLA. Saenz availed herself of this grant of intermittent leave nine times b e tw e e n July 24, 2006 and December 26, 2006. In each instance, she properly s o u g h t and received approval for her leave within the prescribed period and r e c e iv e d an approval notice. All of the correspondence approving her various r e q u e s ts for leave included the following warning: "Please remember that it is y o u r obligation to contact The Hartford no later than 2 days after your leave d a t e to report each date and time that you are absent from work relating to your in t e r m it t e n t [FMLA leave]." Saenz's supervisor, Amy Flores ("Flores"), testified t h a t she personally informed Saenz every time Saenz called-in sick that Saenz n e e d e d to indicate whether her absence was related to her FMLA-qualifying c o n d itio n and that Saenz needed to contact The Hartford. On December 25 and 26, 2006, Saenz missed work due to her seizure c o n d itio n . Saenz promptly contacted The Hartford, reported her FMLA-related 2

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No. 09-40887 a b s e n c e s , and received an approval notice shortly thereafter. Saenz again

m is s e d work on December 29-31 and January 3-4. The circumstances of this b o u t of illness differed significantly from the seizure issues causing Saenz's a b s e n c e only a week before. On December 28, 2006, Rhonda Galloway

(" G a llo w a y " ), Saenz's mother, found Saenz hallucinating and disoriented at her h o u s e . Galloway determined that Saenz could not work that day and contacted S a e n z 's supervisor, Flores. Galloway told Flores about Saenz's symptoms and t h a t she would not be able to work. Flores asked Galloway to call House

S u p e r v is o r Debbie Morturi ("Morturi") and advise her of Saenz's absence. Flores t h e n removed Saenz from the work schedule and informed Saenz's supervisor t h a t Saenz would not be reporting for work. Per Flores's request, Galloway contacted Morturi. Morturi recommended t h a t Galloway take Saenz to Harlingen's emergency room. Galloway then

b r o u g h t Saenz to the hospital and reported her condition to the doctors on duty. Notably, Morturi personally came and visited Saenz while she was in the e m e r g e n c y room. A psychiatrist was brought in to meet with Galloway and Saenz. During t h a t meeting, the psychiatrist recommended that Saenz be transferred to the M c A lle n Behavioral Center for evaluation and treatment. Due to Saenz's

in c a p a c it y , Galloway sought and received a court order permitting the transfer. Saenz testified that she has little recollection of the events of December 28 and 2 9 . After three days, Saenz was released from the McAllen Behavioral Center. She was prescribed several medications and instructed to seek additional e v a lu a tio n and treatment at another facility, Tropical Texas, as soon as she c o u ld arrange an appointment. She went to her mother's home and resided t h e r e in her care until at least January 2.

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No. 09-40887 O n the day of Saenz's discharge, Galloway again contacted Flores.1 G a llo w a y told Flores about Saenz's treatment at the Harlingen emergency room a n d McAllen Behavioral Center.2 Galloway also informed Flores that Saenz n e e d e d to be taken off the schedule for a while, but she could not tell Flores w h e n Saenz would be able to work again. Flores reminded Galloway that Saenz w a s required to contact The Hartford, and she asked Galloway to have Saenz c o n t a c t her as soon as she was able. Flores then removed Saenz from the work s c h e d u le for the time period of December 10, 2006 through January 6, 2007. Flores wrote an "S" on the schedule where Saenz would have been required to w o r k to indicate Saenz was sick. Also on December 31, 2006, Flores received an email sent from Saenz's w o r k email address requesting paid days off for December 25 and 26, 2006. The r e a s o n for the request stated that Saenz had been in the hospital. Saenz's c o u n s e l conceded at oral argument that Saenz was the originator of the D e c e m b e r 31 email. Flores attempted to contact Saenz by telephone following h e r receipt of the email on at least two separate occasions, but she was unable t o reach her.

The testimony conflicts as to whether Galloway contacted Flores or Flores contacted Galloway. The identity of the initiating party is irrelevant to any of the issues before the court. The substance of the information communicated to Flores on December 31 is also disputed. In its briefing, Harlingen claims that Galloway merely told Flores that Saenz would be absent "for some unknown length of time for some unknown reason." Galloway's testimony is ambiguous and could be construed in this way. Nonetheless, Flores affirmatively testified that Galloway told her that Saenz had been hospitalized due to the symptoms she described in their December 28 phone conversation. She also testified that Galloway told her that Saenz "had been sent to another hospital" for additional treatment. As all disputed facts must be resolved in favor of the non-moving party, we are required to assume that Galloway communicated the notice-supporting information described by Flores rather than the less detailed information described by Galloway.
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No. 09-40887 S o m e time between January 7 and January 9, Saenz went to meet with a p s y c h ia t r is t at Tropical Texas.3 She was diagnosed with bipolar disorder and d e p r e s s io n . In total, she was absent from work on December 29, 30, and 31, 2 0 0 6 , as well as January 3 and 4, 2007, due to this second illness. Saenz called The Hartford regarding her absences on January 9, 2007. During that call, she told The Hartford about her diagnosis for bipolar disorder a n d depression and her stay at the McAllen Behavior Center. Saenz then r e q u e s te d approval for intermittent FMLA leave for her newly diagnosed c o n d itio n . By letter dated January 18, 2007, The Hartford began processing a n e w request for intermittent leave on Saenz's behalf and requested the s u b m i s s i o n of medical certification documents. The Hartford processed her r e q u e s t in the same way it had addressed her seizure-related request six months e a rlie r . Saenz also received a letter from Harlingen dated January 18, 2007. In it , Harlingen informed Saenz she was "being involuntarily terminated from H a rlin gen Medical Center effective immediately" due to her non-FMLA approved a b s e n c e s . The letter explained that Saenz had been required to contact The H a r t fo r d on January 2, 2007--two days following her release. After her

t e r m in a t io n , Saenz made no effort to furnish the medical certification d o c u m e n t a t io n requested by The Hartford in its January 18 letter. Saenz sued Harlingen and Medcath Incorporated ("Medcath") in state c o u r t; the defendants removed the case to federal court and then moved for s u m m a r y judgment. In an order dated July 31, 2009, the district court granted

The exact date of Saenz's follow-up appointment is unclear from the record. Galloway testified that she was uncertain as to the date of Saenz's appointment and that it could have been anywhere from seven to ten days after her release from McAllen Behavioral Center. When asked if the doctor's visit was on January 7, Galloway testified: "I can't be sure on the date." As such, we decline to assume the appointment took place on January 7 as suggested by both Harlingen and the district court.

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No. 09-40887 t h e motion for summary judgment as to Medcath on the grounds that Saenz fa ile d to establish a genuine issue of material fact as to whether Medcath was a covered employer under the FMLA. The July 31 order expressly held over all q u e s t io n s relating to Harlingen to be addressed in a subsequent order after a d d it io n a l briefing. In an order dated August 3, 2009, the district court granted s u m m a r y judgment as to Harlingen on all remaining claims. Saenz timely filed h e r notice of appeal on August 27, 2009.4 I I . STANDARD OF REVIEW A grant of summary judgment is reviewed de novo, applying the same s t a n d a r d as the district court. Bolton v. City of Dallas, 472 F.3d 261, 263 (5th C ir . 2006). The inquiry "is limited to the summary judgment record before the t r ia l court." Martco Ltd. P'ship v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2 0 0 9 ). The Court must view the evidence in the light most favorable to the n o n -m o v in g party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 587 (1986), and the movant has the burden of showing this court that s u m m a r y judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). Summary judgment is appropriate where the competent summary

ju d g m e n t evidence demonstrates that there is no genuine issue of material fact a n d the moving party is entitled to judgment as a matter of law. Bolton, 472 F .3 d at 263; see Fed. R. Civ. P. 56(c). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Anderson v. L ib e r ty Lobby, Inc., 477 U.S. 242, 252 (1986).

We note that Harlingen originally claimed that we lack jurisdiction to hear this appeal on the grounds that Saenz's notice of appeal was substantively deficient. At oral argument, Harlingen's counsel conceded that it was not prejudiced by the technical deficiencies in Saenz's notice of appeal and that its challenge to our jurisdiction based on that notice was not wellgrounded.

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No. 09-40887 I I I . DISCUSSION T h e instant case presents two interrelated issues. First, we must consider w h e t h e r the district court erred when it relied upon our decision in Greenwell v. S ta te Farm Mut. Auto. Ins. Co., 486 F.3d 840 (5th Cir. 2007), to conclude that S a e n z was required to comply with Harlingen's internally-created heightened F M L A notice requirements. Second, dependent upon the outcome of that

in q u ir y , we must decide whether Saenz provided adequate notice in keeping w it h Harligen's procedures or the more relaxed default FMLA standard. We a d d r e s s each issue in turn.5 A . Whether the district court erred in its conclusion that Saenz was required to c o m p ly with Harlingen's in-house FMLA procedures C it in g Saenz's nine prior uses of FMLA leave, the district court concluded t h a t Saenz knew she was required to contact The Hartford within two days of h e r absence and, hence, her failure to do so forfeited her protections under the F M L A . The district court concluded that this outcome was required by our d e c is io n in Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840 (5th Cir. 2 0 0 7 ). Greenwell addressed a different situation than our case and, thus, is fa c t u a lly distinguishable. We conclude that the district court erred in strictly e n fo r c in g Harlingen's FMLA procedures on the facts of this case. T h e district court found that Saenz had extensive knowledge of H a r lin g e n 's FMLA procedures by way of her earlier absences. Relying on this u n d is p u t e d knowledge and Saenz's history of unexcused absenteeism (p r e s u m a b ly absences other than the FMLA-approved absences), the district c o u r t cited Greenwell for the proposition that "Saenz can be held to her

In its briefing, Harlingen also alleged that Saenz's failure to submit medical certification for her absences following her termination constituted an alternative grounds for affirming the district court's grant of summary judgment. Harlingen's counsel conceded that this argument was without merit during oral argument before the panel. Accordingly, we do not address it.

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No. 09-40887 e m p lo y e r 's protocol before she will be found to have provided sufficient, timely n o tic e of an FMLA-qualifying condition." Greewell does not paint with so broad a brush. In Greenwell, an employee with a history of both FMLA and unexcused a b s e n t e e is m contacted her employer when she was required to miss work due t o an injury to her child. 486 F.3d at 841. As the injury was not foreseeable, the e m p lo y e e had not been able to give advance notice of her absence. Id. The e m p lo y e e received verbal approval for her absence when she called into work. Id. When she returned to work, the employee refused to complete the necessary F M L A paperwork, and the employer subsequently terminated her. Id. The c o u r t, faced with Greenwell's affirmative refusal to comply, enforced the e m p lo y e r 's policy because Greenwell had actual knowledge of the policy and o ffe r e d no persuasive reason to justify setting it aside. The instant case is different from Greenwell for three reasons. First, the G r e e n w e ll court took exception to Greenwell's failure to provide enough in fo r m a t io n for the employer to realize she was requesting FMLA leave.6 As t h a t court noted, "[Greenwell] never mention[ed] a FMLA-qualifying [medical c o n d itio n ] or [made] a request for FMLA leave" when she contacted her employer t o say she would need to miss work. Greenwell, 486 F.3d at 842. In the instant c a s e , Harlingen had an abundance of information. Saenz's mother contacted H a r lin g e n on three separate occasions ­ two calls to Flores and one to Morturi. She conveyed enough information to Morturi to cause Morturi to suggest Saenz b e taken to the emergency room. Morturi visited Saenz in the hospital and saw h e r condition first hand. Flores conceded in her deposition that she was told

The Sixth Circuit recently distinguished Greenwell along these lines and refused to impose a heightened employer procedure where, as here, the employer had actual notice that an employee was suffering from a "serious health condition." Barrett v. Detroit Heading, LLC, 311 F. App'x 779, 794 (6th Cir. 2009) (unpublished); see also Slanaker v. Accesspoint Employment Alternatives, LLC, No. 07-11024, 2008 U.S. Dist. LEXIS 10525, at *10-11 ( E.D. Mich. Feb. 13, 2008) (same).

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No. 09-40887 a b o u t the transfer to McAllen Behavioral Center for additional medical t r e a t m e n t and the need for post-release treatment. Unlike the employer in G r e e n w e ll, Harlingen was not left to wonder what sort of medical problem c a u s e d Saenz's absence or whether that problem qualified for FMLA leave. Harlingen's extensive involvement in Saenz's treatment provided information fa r in excess of the minimums demanded by the Greenwell court. Second, unlike in Greenwell, we cannot conclude on this record that Saenz a ffir m a t iv e ly refused to comply with her employer's procedure. The Greenwell c o u r t was extremely concerned with Greenwell's affirmative refusal to comply w it h her employer's post-notice requirements.7 The Greenwell court noted that " G r e e n w e ll's decision to not fill out the FMLA form also deprived [her employer] o f the opportunity to `determine that the leave qualifies under [FMLA].'" Id. at 8 4 3 (emphasis added) (second alteration in original). In fact, the "sharing of the

Notably, the Greenwell court addressed the notice requirement in conjunction with its analysis of the post-notice certification. Implicit in the case is the suggestion that Greenwell's defective notice would have been excusable had she provided follow-up certification as requested. In the instant case, Harlingen's counsel conceded at oral argument that Saenz could not have been required to certify an absence after she was terminated. In fact, termination during the mandatory 15-day compliance period could itself be deemed a FMLA violation. See Lubke v. City of Arlington, 455 F.3d 489, 496-97 (5th Cir. 2006) (stating that 29 C.F.R. § 825.305(b) "requires" that the employer allow the employee at least 15 days to respond to the medical certification request); see also Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 554-55 (6th Cir. 2006) (termination of employee six days into 15-day compliance period "was clearly a violation of the FMLA"); Cooper v. Fulton County, 458 F.3d 1282, 1286 (11th Cir. 2006) (termination of employee before the lapse of the15-day compliance period deemed impermissible under FMLA); Muhammad v. Ind. Bell Tel. Co., 182 F. App'x 551, 553 (7th Cir. 2006) (unpublished) (describing the 15-day compliance period as a prerequisite to adverse employment action); Rhoads v. FDIC, 257 F.3d 373, 383 (4th Cir. 2001) ("[T]he employer must allow the employee at least fifteen calendar days to submit [certification]." (emphasis added)); but see Young v. Russell Corp., No. 2:08-CV-148, 2008 WL 5412782, *2 (M.D. Ala. Dec. 29, 2008) (noting that "[i]f the employee never produces the certification, the leave is not FMLA leave" where employee was afforded full 15-day period and failed to comply (quoting 29 C.F.R. § 825.311(b) (2003) (alteration in original)); Tippens v. Airnet Sys., Inc., No. 2:05-CV-421, 2007 WL 1026954, *5 (S.D. Ohio Mar. 30, 2007) (finding that failure to submit medical certification was "fatal to a claim of FMLA interference" where employer granted temporary approval until lapse of 15-day period).

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No. 09-40887 in fo r m a t io n a l burden" discussed at that point by Greenwell and raised by H a r l i n g e n 's counsel at oral argument actually cuts against Harlingen. Here, t h e r e is evidence in the record that Saenz made three efforts to contact H a r lin g e n through her mother and then complied with the heightened company p o lic y nine days later before missing any work other than the days taken off the c a le n d a r by Flores on December 31. Finally, Saenz's knowledge alone of her employer's FMLA procedures does n o t justify holding her to a heightened standard. The Greenwell court justified im p o s in g the employer's special heightened standards for two reasons. First, G r e e n w e ll admitted to consciously refusing to follow her employer's procedures. Greenwell, 486 F.3d at 843. On this limited summary judgment record, we have n o such pre-termination refusal. Second, in Greenwell "no persuasive reasons fo r straying from [the employer's] FMLA procedures [existed]. . . ." Id. at 844. The court noted that Greenwell conceded her son's condition had not been s e v e r e , the family physician had no record of the incident because it was not a m a jo r incident, and, more generally, Greenwell never conveyed sufficient in fo r m a t io n for the employer to make an initial determination of FMLA q u a lific a t io n . Id. Saenz has made no similar concessions and there is at least s o m e evidence in the record to support her argument that she was suffering from a severe psychiatric episode. She was hospitalized. She was placed under a ju d ic ia lly created guardianship for several days. She was released into her m o t h e r 's care until January 2.8 Much of this information was conveyed

c o n t e m p o r a n e o u s ly by way of her mother and Morturi's personal visit to allow H a r lin g e n to make an initial FMLA qualification determination.

Saenz also argues that she was prescribed Dilantin, Klonopin, and Trileptal. The summary judgment record, however, is utterly devoid of any medical evidence as to what effect these drugs had on her mental state during the relevant time period.

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No. 09-40887 A s such, Greenwell does not support holding Saenz to her employer's s p e c ific in-house procedures on the record here presented. We recognize that the s u m m a r y judgment record is thin, and Harlingen may yet find evidence s u p p o r t iv e of applying a heightened notice requirement. At the very least, h o w e v e r , Saenz has raised a fact issue as to whether the facts of this case s u p p o r t application of a heightened standard. This conclusion does not end our inquiry, however, because if she failed to c o m p ly with the FMLA itself in giving notice, Harlingen may still have been e n tit le d to summary judgment. Thus, we examine whether Saenz contacted H a r lin g e n as soon as practicable herself or by way of an agent to provide enough in fo r m a t io n to allow Harlingen to recognize she was taking FMLA leave as r e q u ir e d by the FMLA regulations. 29 C.F.R. § 825.303 (2008).9 B . Whether Saenz adequately provided FMLA notice under 29 C.F.R. § 825.303 T h e FMLA's more relaxed notice requirements are codified within the F M L A and § 825.303. In light of the requirements set forth in the applicable r e g u la tio n s and viewing the facts in the light most favorable to Saenz as the nonm o v in g party, we find that Saenz provided satisfactory notice by way of G a llo w a y 's calls to Flores and Morturi on December 28, Morturi's presence in the e m e r g e n c y room, and Galloway's call to Flores on December 31.

We agree with the district court's conclusion that the 2009 revisions to the FMLA regulations governing notice should not apply to the instant case. As the district court explained, "[r]etroactive application is permissible if it does not `impair the rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.'" Saenz v. Harlingen Med. Ctr., No. B-08-101, at 3 n.1 (S.D. Tex. Aug. 03, 2009) (citing Blaz v. Belfer, 368 F.3d 501, 503 (5th Cir. 2004)). As aptly noted by the district court, the most salient regulatory change--the revisions to 29 C.F.R. § 825.303--arguably increases the duties imposed upon employees seeking FMLA leave. Were we to apply the new regulations, Harlingen might very well be entitled to summary judgment. As such, per Blaz, we decline to retroactively apply the new regulations, and all citations to the governing FMLA regulations refer to the pre-2009 Code of Federal Regulations edition.

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No. 09-40887 T h e FMLA requires only that an employee contact her employer and state t h a t leave is needed as soon as practicable under the facts and circumstances of t h e particular case. 29 C.F.R. § 825.303(a)-(b) (2008). An employee need not e x p r e s s ly assert rights under the FMLA or even mention the FMLA. Id. Once a n employee meets this low threshold, she is merely required to respond to r e a s o n a b le employer inquiries for additional information. On December 28, Galloway contacted Flores to inform her that Saenz w o u ld not be able to work due to a severe medical condition involving h a llu c in a t io n s and disorientation. Galloway then contacted Morturi and

p r o v id e d the same information. Morturi was sufficiently alarmed by Galloway's d e s c r ip t io n to encourage her to bring Saenz to Harlingen's own emergency room. Morturi then personally observed Saenz receiving treatment in the hospital w h e r e Saenz and Morturi worked. Galloway again called Flores on December 3 1 and informed her that Saenz had missed work on December 29-31 because " [S a e n z ] had been in the emergency room and that she had been sent to another h o s p it a l" due to the condition Galloway had described to her on December 28. She also informed Flores that she needed to remove Saenz from the schedule b e c a u s e Saenz was still suffering from the same condition and required a d d it io n a l treatment. Galloway did not provide an anticipated duration because s h e did not know how long Saenz would be incapacitated. Harlingen cites two cases to suggest that, even under the more relaxed n o tic e standards, Saenz loses. First, Harlingen cites Seaman v. CSPH, Inc., 179 F .3 d 297 (5th Cir. 1999). In Seaman, unlike here, the employee asked in

a d v a n c e for time off to seek treatment. Seaman, 179 F.3d at 302. The employee d i d not suffer any sort of medical emergency nor was he ever required to u n e x p e c t e d ly miss work due to his condition. Id. Moreover, he did not ever a c t u a lly seek the treatment for which he requested time off. In fact, his request f o r time off was described by the court as little more than an abstract inquiry 12

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No. 09-40887 d u r in g a casual conversation with his employer. Id. The employee also conceded t h a t he never told his employer that he needed the time to seek treatment for a s e r io u s medical condition in his subsequent requests. Id. In this case, Saenz w a s not prospectively seeking treatment when she required FMLA leave. Instead, she was so incapacitated that her mother had to request time off on her b e h a lf and obtain a guardianship to transfer her to a psychiatric hospital. Additionally, Galloway's descriptions to Flores and Morturi were not, as the S e a m a n Court rejected, a mere "reference to [a] mental condition." Id. Instead, G a llo w a y 's various communications over the course of the December 28 and 31 c o n v e r s a t io n s as well as Morturi's observations were sufficient to inform H a r lin g e n that Saenz was suffering from a serious psychiatric condition. S e c o n d , Harlingen points to this court's decision in Satterfield v. Wal-Mart S to r e s , Inc., 135 F.3d 973 (5th Cir. 1998), as another example of analogous in s u ffic ie n t notice. In Satterfield, the court determined that a note from the e m p lo y e e stating that she "was having a lot of pain in her side, and would not b e able to work that day" was not sufficient to allow her employer to determine if she was suffering from a serious medical condition. Satterfield, 135 F.3d at 9 8 0 -8 1 (quotation omitted). In the instant case, Galloway told Flores and

M o r t u r i that Saenz had been hospitalized and then transferred to an inpatient c a r e facility for three days. As such, Galloway's calls, which described both S a e n z 's symptoms and the significant treatment she was receiving, cannot be e q u a t e d to an off-hand note describing a single symptom without any additional c o n t e x t . The information provided by Galloway did not, in the Satterfield court's w o r d s , require her employer to be "clairvoyant" to ascertain whether FMLA m ig h t apply. Id. at 980. In the end, Harlingen has not adduced any similar a u t h o r it y suggesting communications like Galloway's should not be deemed to h a v e sufficiently "[apprised] the employer of the request for time off for a serious h e a lt h condition." Seaman, 179 F.3d at 302. 13

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No. 09-40887 I V . CONCLUSION T o conclude, we hold that the district court erred by applying the h e ig h t e n e d requirements of Greenwell on the summary judgment record before it and that Saenz appears to have provided the minimum required notice under F M L A 's default provisions. Accordingly, we REVERSE the district court's grant o f summary judgment and REMAND for proceedings consistent with this o p in io n .

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