In the

United States Court of Appeals
                 For the Seventh Circuit

No. 08-2176

T ANUM S MITH,
                                               Plaintiff-Appellant,
                                  v.

T HE H OPE S CHOOL,
                                              Defendant-Appellee.


              Appeal from the United States District Court
                    for the Central District of Illinois.
            No. 06-CV-3244-JES-BGC—Jeanne E. Scott, Judge.



      A RGUED F EBRUARY 19, 2009—D ECIDED M ARCH 30, 2009




  Before F LAUM and W ILLIAMS, Circuit Judges, and
K APALA , District Judge.Œ
  F LAUM, Circuit Judge. Tanum Smith appeals from the
district court’s grant of summary judgment in her suit
against her former employer, The Hope School, for
denying her rights under the Family and Medical Leave
Act. Smith claims that the district court improperly held


Œ
    Of the Northern District of Illinois, sitting by designation.
2                                               No. 08-2176

that her application for leave was fraudulent because
she altered a health care provider’s certification form,
arguing that the alteration is irrelevant because Smith
was entitled to medical leave based on the authentic,
unchanged information. She thus maintains that there
is sufficient evidence to reach the jury on her interference
and retaliation claim.
  For the following reasons, we affirm the district
court’s grant of summary judgment.


                      I. Background
  From May 5, 2005 until September 19, 2006, Tanum
Smith worked for the Hope School, a residential facility
for children with developmental disabilities. Smith
began as an individual instruction aide, assigned to work
one-on-one with students. During the course of 2006,
however, Smith was injured in two separate physical
altercations with students. The first incident occurred on
April 3, 2006. A student pushed Smith to the ground,
struck her, and kicked her. The second incident followed
shortly after the first, on June 9, 2006. That time, a
student struck Smith in the mouth, causing her to suffer
a chipped tooth and neck pain. Smith filed workers’
compensation claims in Illinois after each incident.
  After the June 9 altercation, Smith visited a chiropractor,
Dr. Bryan Taylor, who advised Smith to stay home
from work for two or three weeks. Taylor approved her
return to work on June 21 so long as she was confined
to light duty. Hope School assigned Smith to clerical work
No. 08-2176                                              3

in The Autism Project, a division of the school. After
the two attacks, Smith was apprehensive about working
with students, but had no contact with them in her
new assignment. Attendant to her workers’ compensation
claims, Smith went to a physician, Dr. Dellheimer, for
an independent medical examination. On August 10,
Dellheimer approved Smith’s return to work without
any restrictions. However, just four days later, Dr. Cara
Vasconcelles, Smith’s primary care physician, gave her
a note restricting her to light duty and assignments
that would not require her to be around Hope School
residents.1 Vasconcelles has previously treated Smith
for mild anxiety, a condition that Smith claimed was
triggered when she was around students. Vasconcelles
also referred Smith to a neurologist, Dr. Dave Gelber, for
her neck pain. Ultimately, Dr. Gelber informed Hope
School that Smith did not require any work restrictions.
  In response, Hope School transferred Smith to its
dietary department. The parties dispute whether this
assignment actually kept Smith from interacting with
Hope School students. Smith contends that students
would enter the dietary department in order to get
lunch trays and utensils. Hope School contends that the
area was off limits to students. Regardless, Smith reported
to the school’s human resources department on either
August 22 or August 23 that a student named Tia ap-



1
   The note instructed Hope School to “please excuse from
work [due] to neck pain until cleared by neurologist unless
light duty and not around residents.”
4                                              No. 08-2176

proached her in the kitchen. Smith went to the human
resources department and complained that Hope School
had not provided her with a safe work environment, that
she was leaving work because of that, and that she
would not return until she had a safe job assignment.
Hope School claims that it sent Smith a letter the next
day, telling her that she should not have contact with
students in the dietary area because it was off limits to
them, and that if she needed to be out of the kitchen
someone would be around to accompany her. The letter
continued that Hope School expected Smith to show up
for work on Friday, August 25, and that if she did not
report for work they would consider it an unexcused
absence.
   Smith claims that she never received this letter and saw
it for the first time when she sat for her deposition. On
August 24, Smith left a voicemail message with
Vasconcelles’ office saying that Hope School had not
given her a job assignment that kept her out of contact
with residents. On the message, she asked if she could
receive FMLA leave. Vasconcelles told her nurse to call
Smith back and inform her that “she could try” for FMLA
leave. Nevertheless, on August 25 Smith showed up at
work and clocked in, although she left only a few
minutes later without reporting to anyone. Smith claims
that she did report in at work by leaving a voicemail
message with Melissa Thompson, a Hope School
human resources employee who specialized in workers’
compensation claims.
  The next Monday, August 28, Smith met with Jennifer
Cline, a Hope School human resources employee responsi-
No. 08-2176                                                    5

ble for fielding FMLA claims. The parties dispute
what happened in this meeting. Cline apparently gave
Smith the FMLA paperwork, and told her the forms
needed to be completed by her doctor as soon as possi-
ble. Cline testified that Smith said she was only consider-
ing applying for FMLA leave, while Smith testified that she
told Cline she was too stressed to work and that she was
not coming back, but was going to see her doctor immedi-
ately.2 Smith asserted that after her conversation with Cline
she believed that her request for leave had been approved.
Cline testified that she had the opposite impression, that
Smith was only considering applying for leave. Smith then
left the paperwork from Cline at Vasconcelles’ office.
Vasconcelles completed the paperwork that same day,
although Smith did not pick up the forms until September
6. In the space provided for a health care provider to certify
the patient’s condition, Vasconcelles wrote that Smith was
having “severe recurrent muscle tension [headaches] and
[right] neck & arm pain [secondary] to trauma suffered
at work.”
 Smith did not show up for the next scheduled work day,
August 29, and did not call her supervisor to report her


2
   In her deposition testimony Smith said that in her meeting
with Cline she claimed stress both at work and at home. “[Cline]
showed me the documentation, the paperwork for it, and she
said if this is related to your injuries, this won’t work. I said
I am stressed. I am depressed. I am stressed. You don’t know
what I am going through. She said it can’t be related to work.
I said, okay, fine, I am stressed at home. I have stuff going on
at home too then. I said I can’t do this anymore.”
6                                                    No. 08-2176

absence. In response, the Hope School sent Smith
another letter telling her about security provisions at the
school if she felt unsafe at work, and telling her once
more that failing to show up at work would count as
an unexcused absence.
  On September 6, Smith picked up her FMLA paperwork
from Vasconcelles’ office. Neither party disputes that
upon receiving the form, Smith added to Vasconcelles’
description of her condition on the health care provider’s
certification form: Below Vasconcelles’ narrative,
Smith added the words “plus previous depression.”
Importantly, Vasconcelles had never diagnosed Smith with
depression, nor has any other doctor diagnosed or
treated Smith for that condition. Smith had not consulted
with Vasconcelles before adding that condition to the
form.3
  Smith faxed the altered form to the Hope School. When
Cline and Thompson reviewed her paperwork, they
suspected that the health care provider’s certification
had been altered. Cline then asked another employee
from the human resources department to call Vascon-



3
  This was not the only change that Smith made to the
forms: She also backdated her portion of the signature line of
the FMLA form to August 25, despite the fact that she did not
pick up the forms from the Hope School until August 28.
Finally, she filled out a separate “Attending Physician’s State-
ment” in its entirety, listing diagnoses of muscle tension,
chronic headaches, and depression. Dr. Vasconcelles’ office
later annotated the form to confirm that she had not filled it out.
No. 08-2176                                                         7

celles’ office and ask about the possible alteration. That
office confirmed the alteration.4 Cline then contacted a
representative from the Department of Labor, who ac-
cording to Hope School advised them that they could
deny Smith’s request for leave because she did not give
timely notice and altered FMLA documentation. On
September 11, Cline denied Smith’s request for FMLA
leave and mailed her a formal notice of the denial, citing
Smith’s altered paperwork and failure to provide timely
notice.
  Hope School also began disciplinary proceedings
against Smith because of her absences from work. Hope
School’s employee policy manual, which they gave to
Smith when she began work in 2005, informs employees
that three consecutive unexcused absences is grounds
for termination. According to their records, Smith had
been absent from Hope School for at least three con-


4
   This in itself was a violation of the FMLA, because at the time
an employer’s only recourse in such a circumstance was to
request that the employee seek a second opinion or have their
own health care provider investigate the alleged alteration.
Smith’s complaint does not allege any injury from this breach,
however, and the FMLA provides no remedy for such a viola-
tion unless it interfered with or restrained an employee’s
rights under the act. Darst v. Interstate Brands Corp., 

,
909-10 (7th Cir. 2008). We note that the applicable regulation
has now been amended and an employer is allowed to con-
tact an employee’s health care provider for the limited purpose
of authenticating or clarifying the information contained in
the certification. See 29 C.F.R. 825.307(a) (effective Jan. 16, 2009).
8                                               No. 08-2176

secutive days and was in violation of this policy. On
September 6, Hope School mailed Smith a letter telling
her that they had scheduled her termination hearing for
September 12. The parties dispute whether this pro-
ceeding was scheduled before or after Smith turned in
her FMLA paperwork to Hope School. Smith did not
attend the September 12 meeting, and so Hope
School rescheduled for September 14. Smith attended that
meeting, where she learned that Hope School was con-
templating terminating her because of her absences
from work. She also attended an additional disciplinary
meeting on September 19. At that meeting, Smith asked
about the status of her request for FMLA leave; Hope
School responded that they had denied her request, citing
once again her alteration of the paperwork and her
failure to provide timely notice of her request. As a result
of that meeting, Hope School terminated Smith’s em-
ployment.
  On October 24, 2006, Smith filed a two-count complaint
against Hope School. Count one of her complaint
claimed that Hope School had denied her rights under
the FMLA by denying her leave and terminating her in
retaliation for requesting leave. Count two alleged that
she was terminated in retaliation for filing Illinois work-
ers’ compensation suits. Hope School moved for sum-
mary judgment at the close of discovery, and the district
court granted that motion on April 10, 2008. Smith now
appeals.
No. 08-2176                                                  9

                       II. Discussion
  This court reviews a district court’s grant of summary
judgment de novo. Woodruff v. Mason, 

, 550
(7th Cir. 2008). Summary judgment is appropriate
when the evidence submitted, viewed in the light most
favorable to the non-moving party, shows “no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c); see also Celotex Corp. v. Catrett, 

, 322-
23 (1986). This court construes all facts and draws all
reasonable inferences from the record in favor of the non-
moving party. Bell v. Duperrault, 

, 707 (7th
Cir. 2004). However, “we are not required to draw every
conceivable inference from the record.” 

draw only the reasonable inferences. See McDonald v.
Village of Winnetka, 

, 1001 (7th Cir. 2004).


A. Interference Claim
  The district court’s summary judgment opinion found
that Smith’s alteration of Vasconcelles’ health care
provider certification form invalidated her application
for leave under the FMLA. Thus, Hope School did not
interfere with her rights under the act or retaliate
against her for asserting them. The FMLA entitles an
employee to twelve weeks of leave every twelve-month
period if she is afflicted with “a serious health condition”
which renders her unable to perform her job. 29 U.S.C.
§ 2612(a)(1)(D). The FMLA also forbids employers
from retaliating against employees who claim benefits
10                                             No. 08-2176

under the act. 29 U.S.C. § 2615(a)-(b); see also Burnett v.
LFW, Inc., 

, 477 (7th Cir. 2006).
  To prevail on an FMLA interference claim, an employee
need only demonstrate that her employer has denied
her leave under the act; she need not show discriminatory
intent on the part of the employer. 

. As for the elements of an interference claim, an
employee must demonstrate that: (1) she was eligible
for FMLA protection; (2) her employer was covered by
the FMLA; (3) she was entitled to FMLA leave; (4) she
provided sufficient notice of her intent to take leave; and
(5) her employer denied her benefits to which she was
entitled. 

court issued summary judgment
because Smith was not entitled to FMLA leave. Hope
School argues on appeal that Smith also failed to provide
sufficient notice and does not have a qualifying condition.
   An employee is entitled to FMLA leave if she can demon-
strate that she suffers from a “serious health condition”
that prevents her from fulfilling the functions of her job.
29 U.S.C. § 2612(a)(1)(D). The FMLA defines an employee
with a “serious health condition” as one who has “an
illness, injury, impairment, or physical or mental condi-
tion that involves—(A) inpatient care in a hospital,
hospice, or residential medical care facility; or (B) con-
tinuing treatment by a health care provider.” 29 U.S.C.
§ 2611(11). Applicable regulations state that continuing
treatment by a health care provider includes conditions
that require examinations and evaluations over a period
of time. 29 C.F.R. § 825.115. However, an employer is
allowed to require an employee to document her con-
No. 08-2176                                             11

dition before granting FMLA leave, and can require her
to submit certification of her condition from her health
care provider. 29 C.F.R. § 825.305(a). If an employee fails
to provide such certification in a timely manner, then an
employer is entitled to deny the employee FMLA leave.
29 C.F.R. § 825.313.
  In this case, Smith only made one attempt to submit her
certification paperwork. Consequently, the issue here is
whether Smith’s alteration of her certification form
made her ineligible for FMLA leave. Smith’s arguments
on this point are centered on a federal regulation gov-
erning job restoration and maintenance of health benefits
provision for employees who fraudulently obtain leave.
She concedes, however, that an employer can deny
FMLA leave to an employee who seeks to obtain such
leave fraudulently. She argues, citing the common law
definition of fraud, that because Dr. Vasconcelles recom-
mended that she obtain leave she was entitled to it under
the FMLA and thus could not have fraudulently ob-
tained it. On this theory, an employee only fraudulently
obtains leave if she alters a form that would not other-
wise entitle her to it. In other words, it’s only fraud if
her falsification pushes her case across the finish line.
  This is an imprecise way of framing the issue, because
the question here is not fraud necessarily but whether
Smith provided an adequate certification of her con-
dition such that Hope School was bound to honor her
request for FMLA leave. Smith’s position has some super-
ficial appeal, however, as it protects an employee’s right
to leave based on an actual medical condition, setting
12                                                 No. 08-2176

any falsehood in the document to one side. Smith fails
to explain why an employer should be required to read
the false conditions out of the certification, however. Nor
do we see how such a requirement can be sensibly
applied in cases beyond the present one. As the district
court explained, there is little precedent governing this
issue. Other courts have addressed the far more straight-
forward issue of whether an employer can fire an em-
ployee for fraudulent use of FMLA leave, or for sub-
mitting entirely false paperwork to obtain FMLA leave.
See Kariotis v. Navistar Int’l Transp. Corp., 

, 680-
81 (7th Cir. 1997); Blackburn v. Potter, 

(S.D. Ind. Mar. 31, 2003). The question of whether an
employer can deny an employee FMLA leave to which
she might otherwise be entitled because she submitted
false paperwork presents a slightly different question. A
district court in the Tenth Circuit has come as close as
any court has to ruling on this question. In Yasmeen v.
Hospira, Inc., 

(D. Utah Nov. 2, 2007), an
employee requested FMLA leave to care for her sick
husband. She had her husband’s doctor fill out the
FMLA certification paperwork, but later noticed that the
doctor had not filled in the correct dates for the leave
necessary (at least in her view). She called the doctor’s
office and when he was unavailable, claims that she
had his resident change the dates on the form. She was
ultimately terminated for submitting the altered paper-
work. The district court held that the alteration of the
FMLA form provided the employer with valid grounds
for termination, as the employee’s decision to submit the
altered form was evidence of dishonesty. This was so even
if the unaltered form would have entitled her to leave.
No. 08-2176                                            13

  Of course, losing a job is a foreseeable consequence of
dishonesty. Here, by contrast, Smith was not fired for
being dishonest but for taking leave to which she was
not entitled. The predicate question of whether Hope
School rightly concluded that they did not need to
honor Smith’s request for leave thus presents us with a
slightly different question from those that courts have
previously addressed. Nevertheless, we agree with the
district court’s summary judgment ruling below: In a
case such as this, where an employee adds to a medical
care provider’s certification form a condition that she
has not been diagnosed with, without the knowledge or
approval of her physician, an employer can deny her
request for FMLA leave. We are convinced that Smith’s
proposed rule would have the effect of encouraging
applicants to dress up an application for leave by
adding non-existent conditions. In this case, the phony
diagnosis was confirmed with a single improper phone
call. At the time, however, an employer following the
rules could confirm that an employee had submitted a
false diagnosis only by requesting an expensive and time-
consuming second opinion from a different physician.
Or, perhaps, the falsehood would go undetected alto-
gether, and in the marginal cases an employee whose
actual medical condition did not merit FMLA leave
would receive it.
  Smith claimed in her deposition testimony in this case
that it was not her intention to alter the paperwork: “I
was just trying to be thorough. I was not trying to alter.
If I was trying to alter, I mean look at that. My hand-
writing stands out like a sore thumb, you know.” Smith
14                                                  No. 08-2176

knew, however, that neither Vasconcelles nor any other
doctor had diagnosed her with depression or treated her
for it, and she admitted as much in her deposition.5
She also made the same self-diagnosis of depression,
twice in fact, on the “Attending Physician’s Statement”
that she filled out entirely on her own but submitted
in Vasconcelles’ name. Under these circumstances, where
multiple forms purporting to contain a physician’s diag-
nosis were in fact altered or filled out completely by a
patient who knew that the physician had made no such
diagnosis, we conclude that Smith was presenting false
certification paperwork and thus was not entitled to
FMLA leave.6


5
  The relevant part of the deposition reveals that any depression
in this case was self-diagnosed:
     Q: You have said that you were depressed. Did anybody
     diagnose you with despression?
     A: No. When I went to Dr. Vasconcelles, she had me update
     my history form, you know, those forms they give you
     when you go in, and I put it on there, but she never talked
     to me about it. But I knew I was, I knew I was stressed.
     Q: Did anybody prescribe any treatment, medication, or
     therapy for depression to you before this?
     A: No. She just prescribed medicine for anxiety. But I told
     her in that appointment that I was becoming depressed.
6
  We likewise agree with the district court that an employer
presented with false certification paperwork is not required to
seek a second opinion. The FMLA provides that an employer
who questions the validity of the certification can seek a
                                                 (continued...)
No. 08-2176                                                   15

  We wish to emphasize the limited nature of today’s
ruling, however. The record here presents an especially
strong inference that an employee submitted false paper-
work to her employer. Smith not only altered the FMLA
paperwork she faxed to the Hope School, but she back-
dated the form and submitted a second form that
her physician had never filled out or signed. In these
circumstances, we hold that an employee is not entitled
to FMLA leave on the basis of the falsified paperwork.
We obviously do not reach the question of whether other,
more insignificant alterations, such as correcting a typo-
graphical error or correcting or adding to a portion of
the form with the knowledge and approval of a treating
physician, would result in a similar ruling. Nor, because
there was only a single attempt to submit certification
paperwork in this case, do we need to consider the
result if an employee re-submitted authentic, unaltered
paperwork certifying her request for leave after first
submitting altered, false documentation.




6
   (...continued)
second opinion at the employer’s expense. 29 U.S.C. § 2613(c)(1).
These provisions reference an “opinion of a second health
care provider” and thus presume that what is being ques-
tioned is in fact a health care provider’s opinion. The statute
thus refers to instances where the employer questions whether
a doctor’s diagnosis is correct, rather than instances where
the employer questions whether the doctor even made the
diagnosis in the first place.
16                                                No. 08-2176

B. Retaliation Claim
  Smith’s retaliation claim is very closely linked to her
FMLA interference claim. An employee who alleges
that her employer retaliated against her for exercising her
rights under the FMLA can proceed under the direct or
indirect methods of proof familiar from employment
discrimination litigation. See Buie v. Quad/Graphics, Inc., 

, 503 (7th Cir. 2004). An employee proceeding
under the direct method must demonstrate that her
employer intended to punish her for requesting or
taking FMLA leave. King v. Preferred Technical Group, 

, 891 (7th Cir. 1999). The indirect method, familiar
from Title VII cases, requires the employee to produce
evidence that she was treated differently from similarly
situated employees who did not request FMLA leave,
even though she was performing her job satisfactorily.
Hull v. Stoughton Trailers, LLC, 

, 951 (7th
Cir. 2006). Smith has chosen to proceed under the
direct method in this case, and made no effort to avail
herself of the indirect method.
  Her evidence of retaliation is fairly straightforward:
She was fired for not being at work while she believed
she was on FMLA leave. Hope School asserts that she
was not fired for taking FMLA leave but rather for vio-
lating the school’s policy prohibiting employees from
having three consecutive unexcused absences. If her
request for leave was invalid, as argued above, then
Smith was not engaging in statutorily protected activity
and thus could not have been fired for asserting her
rights under the FMLA. See Gay v. Gilman Paper Co., 125
No. 08-2176                                             

, 1436 (11th Cir. 1997) (“When notice of a
possible serious medical condition is deliberately with-
held and false information is given, it cannot be said that
an employee has been terminated in violation of the
FMLA.”). The Department of Labor regulations gov-
erning job restoration following FMLA leave include a
similar rule: “An employee who fraudulently obtains
FMLA leave from an employer is not protected by
FMLA’s job restoration or maintenance of health benefits
provisions.” 29 C.F.R. § 825.216(d). As we have already
held that Hope School was entitled to deny Smith’s re-
quest for FMLA leave because she submitted false paper-
work, we also hold that they were entitled to terminate
her employment because of her unexcused absences
from work during this period.
  Hope School also argues that this court could affirm
summary judgment because of Smith’s failure to give
adequate notice and because she lacks a qualifying
medical condition. As we have already held that Smith
was neither entitled to FMLA leave nor fired in retali-
ation for asserting her rights under the act, we have no
need to consider these alternative grounds.


                     III. Conclusion
  For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment.



                          3-30-09