467 F. App'x 536
8th Cir.2012Background
- Miller worked for NDED from 1986 until June 2007 and missed substantial work time aiding his ill father.
- Richard Miller was diagnosed with prostate cancer (2005) and stage IV lung cancer (2006), prompting Miller to attend medical appointments through 2005–2006.
- In April 2007, Richard’s doctor predicted 60–90 days life expectancy and hospice was discussed; Miller and Richard later disagreed on care decisions.
- Miller stopped attending Richard’s appointments on April 17, 2007, and by June 15, 2007 had at least 23 unexcused absences, leading to his termination.
- NDED terminated Miller for unexcused absences; Miller claimed FMLA interference/retaliation for caring for Richard.
- The district court granted summary judgment to NDED, concluding no reasonable jury could find Miller needed to care for Richard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Richard was unable to care for his own basic needs in April–May 2007. | Miller asserts Richard needed care based on Miller’s affidavit and Dr. Fiedler’s view. | NDED and evidence show Richard could care for himself when with Lois and during travel. | No genuine issue; Richard cared for himself. |
| Whether Miller provided necessary care to Richard during absences. | Miller contends he assisted with activities and thus provided necessary care. | Affidavits lack specifics; inconsistent with Richards’ observed abilities; self-serving claims rejected. | No genuine issue; insufficient proof of necessary care. |
| Whether Miller’s claim rests on accompanying psychological comfort provided to Richard. | Miller argues psychological support aided Richard’s condition under 29 C.F.R. § 825.124(a). | No evidence of inpatient/home care or ongoing treatment; Scamihorn is distinguishable. | Rejected; insufficient evidence of ongoing care duties. |
| Whether Miller needed to arrange hospice care for Richard. | Dr. Fiedler indicated hospice could have been viable; Miller’s testimony suggests activity. | Richard opposed hospice; no proof Miller devoted substantial time to arranging it. | Rejected; no necessity shown. |
Key Cases Cited
- Roberson v. AFC Enters., Inc., 602 F.3d 931 (8th Cir. 2010) (summary-judgment standard; resolve conflicts in movant/nonmovant favor)
- Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000) (summary judgment standard under Rule 56)
- Davidson & Assocs. v. Jung, 422 F.3d 630 (8th Cir. 2005) (scintilla evidence insufficient for plaintiff; need viable evidence)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1964) (material facts and permissible inferences; evidence standard for summary judgment)
- Doza v. Am. Nat’l Ins. Co., 314 F.2d 230 (8th Cir. 1963) (affidavits must show personal knowledge; cannot rely on speculation)
- Scamihorn v. Gen. Truck Drivers, Office, Food & Warehouse Union, Local 952, 282 F.3d 1078 (9th Cir. 2002) (distinguishable; need inpatient/home care evidence)
- Marchisheck v. San Mateo Cnty., 199 F.3d 1068 (9th Cir. 1999) (ongoing treatment required to qualify for FMLA leave)
- Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005) (absences during travel may preclude psychological-care theory)