In Schuler v. Branch Banking & Trust Co., No. 1:08cv378, 2009 U.S. Dist. LEXIS 94043 (W.D. N.C. Oct. 8, 2009), the court allowed Schuler to rely on evidence of her post-termination diagnosis and treatment for pancreatic cancer to establish a forecast of evidence that she was suffering from an FMLA -covered serious health condition, albeit undiagnosed, at the time of her termination, sufficient to defeat the employer's motion for summary judgment on the issue.
Comment: The post-termination evidence of diagnosis and treatment gave context to the pre-termination symptoms of the disease that Schuler was suffering. Wide adoption of this standard will make it very difficult for employer's to secure summary judgment in cases where undiagnosed symptoms alone may not meet the requirement of one-or-more FMLA-covered serious health conditions. That may mean more expensive settlements and litigation.