208 F.3d 671 | 8th Cir. | 2000
Lead Opinion
Juanita Caldwell (“Caldwell”) appeals the district court’s grant of summary judgment to her former employer, Holland of Texas, Inc. (“Holland”), on her claim that Holland terminated her employment in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2611-2612. The district court determined as a legal matter that Caldwell’s son did not suffer a “serious health condition” under the FMLA, and therefore, the FMLA does not give her any benefits. We determine that Caldwell’s evidence showing that her three-year-old son sustained a sudden onset of an ear infection — a condition that required immediate attention by a physician, a series of antibiotic treatments, and surgery — is sufficient to present a fact question regarding whether Caldwell’s son’s illness and disability qualifies as a
I. BACKGROUND
Caldwell is a single mother, working to support herself and her three-year-old son, Kejuan. Before she was summarily fired, Caldwell worked for Holland, which owns and operates several Kentucky Fried Chicken restaurants in Texarkana, Arkansas. Caldwell worked for Holland for three years, and during that time, she developed an excellent record working at the Kentucky Fried Chicken on Hickory Street.
On Saturday, June 7, 1997,
Later that Saturday night, upon the request of an assistant manager, Caldwell worked an evening shift at one of Holland’s other restaurant locations. While Caldwell was working, her elderly mother cared for her son and administered his medications. Caldwell did not have any shifts on Sunday. When Caldwell returned to her regular work on Monday morning, June 9, 1997, Mark Monholland, a manager at the Hickory Street restaurant, abruptly fired Caldwell without discussing her absence of June 7,1997.
The supplemental affidavit of Ms. Caldwell, Kejuan’s mother, asserts that Kejuan suffered “incapacity” for more than three consecutive days following his trip to the clinic and recites that Kejuan did not participate in his “normal activities,” remained inside the house, and was kept in bed as much as possible. He remained under the care of either his mother or grandmother who administered prescribed medications during “this entire time.” During a followup visit on July 1, 1997, Dr. Wright prescribed a second ten-day course of antibiotics for Kejuan in an attempt to treat his “persistent ear infection.” On July 17, 1997, Kejuan had surgery to remove his adenoids and tonsils and to place tubes in his ears. Following surgery, Kejuan received another course of antibiotics and orders to remain in bed for one week. His mother and grandmother kept him inside following the operation and restricted him from engaging in normal activities.
Caldwell sued and argued that her termination violated the FMLA. On Holland’s motion for summary judgment, the district court dismissed the suit because it concluded that, although the Act generally protects employees when their immediate family members have a “serious health condition,” Kejuan’s condition did not qualify. Caldwell appeals. We reverse and remand.
II. DISCUSSION
The FMLA allows eligible employees to take up to a total of twelve work
A “serious health condition” occurs, under the regulations, when the family member suffers an “illness, injury, impairment, or physical or mental condition” that requires “inpatient care” or “continuing treatment” by a health care provider. See 29 C.F.R. § 825.114(a). Here, the parties agree that Kejuan never received inpatient care. The pertinent issue -is whether Ke-juan received continuing treatment. A family member receives continuing treatment if the person experiences “[a] period of incapacity ... of more than three consecutive calendar days” and then receives subsequent treatment, or experiences further incapacity relating to, the same condition. 29 C.F.R. § 825.114(a)(2)(i). The subsequent treatment must include, either “[tjreatment two or more times by a health care provider ...,” or “[tjreatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” 29 C.F.R. § 825.114(a)(2)(i)(A)-(B).
The applicability of the FMLA, here, -turns on whether Caldwell can prove a two-pronged inquiry: first, she must show that Kejuan suffered “a period of incapacity of more than three consecutive calendar days”; second, she must show that Kejuan subsequently received continued, supervised treatment relating to the same condition. See Thorson v. Gemini, Inc., 205 F.3d 370, 376 (8th Cir.2000). The district court, found, when applying the regulations, that Caldwell “has not provided any proof whatsoever of Kejuan’s incapacity for the three, days following his June 7 examination.” J.A. at 95. Therefore, the district court determined that Caldwell failed to raise a material issue of fact regarding the first prong of her case, namely that Kejuan was not incapacitated for three consecutive days following Caldwell’s absence from work on June 7, 1997. Caldwell argues that this finding was error, and we agree. Caldwell has presented sufficient evidence to raise a question of fact as to whether Kejuan’s ear infection incapacitated him for more than three days and whether Kejuan then received subsequent treatment for his condition.
In assessing the first prong of Caldwell’s case, we note at the outset that the question of what constitutes incapacity of a three-year-old raises an issue not directly addressed by the regulations. The regulations state that incapacity may be determined based on an individual’s “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” See 29
Caldwell avers that Kejuan’s ear infection, which was severe enough to warrant emergency treatment, required constant care for a period of more than three days. She states in her supplemental affidavit that Kejuan was incapacitated beginning Saturday, June 7, 1997, for more than three consecutive days. She further states:
He [Kejuan] remained inside the house and was kept in bed as much as possible. He did not participate in any of his normal activities. He was under the constant care of me (his mother) and his grandmother, and both the prescribed medications and a fever reducer were administered to him during this entire time.
J.A. at 89.
In addition to Caldwell’s affidavit, the medical records show that Kejuan’s ear infection was a continuing, persistent condition that could only be treated by surgery. Kejuan’s period of incapacity, therefore, may be measured over the entire time during which he was suffering from this illness and being treated for it. We note that Kejuan was treated for his condition for ten days following his first visit to the emergency clinic.
The ten-day period beginning on June 7, 1997 could constitute Kejuan’s period of incapacity. As we have noted, his mother’s supplemental affidavit refers to constant care and administration of prescribed medications during “this entire time.”
Even if Kejuan did not sustain “incapacity” under the regulations prior to his surgery, the record clearly shows that the inflammation and infection in his ears resulted in a period of incapacity that lasted
[T]he doctor stated that [after the operation] Kejuan was to be kept in bed for one (1) week. Kejuan stayed in bed two or three days but was kept inside the house and did not participate in his normal activities for a week following his surgery. During this period of time, he was prescribed his third round of antibiotics;
J.A. at 90. This surgery was the necessary and only treatment for Kejuan’s condition. Although Kejuan’s condition did not require immediate surgery, after the first round of antibiotics, the doctors determined that the condition could be cured only by surgical operation.
Both the First and the Seventh Circuits have recognized that medical diseases do not afflict people in methodical and predictable ways; certain serious diseases can elhde diagnosis, change in severity, and have cumulative effects on the body over time. See, e.g., Hodgens v. General Dynamics Corp., 144 F.3d 151, 163 (1st Cir.1998); Price v. City of Fort Wayne, 117 F.3d 1022, 1024-25 (7th Cir.1997). These unpredictable characteristics of illness can result in an individual’s inability to care for himself and perform his daily tasks, after experiencing a series of less debilitating symptoms. In Hodgens, the First Circuit recognized the possibility of FMLA coverage for “intermittent leave”:
[0]ne reason for taking “intermittent leave” under the FMLA would be to visit the doctor for purposes of diagnosis and treatment, even if the employee does not take leave for the periods in between such visits. It would seem that Congress intended to include visits to a doctor when the employee has symptoms that are eventually diagnosed as constituting a serious health condition, even if, at the time of the initial medical appointments, the illness has not yet been diagnosed nor its degree of seriousness determined.... Thus, as long as Hodgens satisfied, at some point in time, the “more than three consecutive days” requirement for establishing a serious health condition, his intermittent absences for less than four days ... were protected under the FMLA if they were necessary “to determine if a serious health condition exists,” ... or to treat such a condition. This is true even if the intermittent absences occurred before the consecutive absences.
Hodgens, 144 F.3d at 163 (citation omitted). This passage reflects the importance of looking at the disease’s effects on the body over the entire period of illness. The Seventh Circuit has even recognized that multiple illnesses, when temporally linked, can result in a serious health condition protected by the FMLA. See Price, 117 F.3d at 1025 (“how can one’s ability to perform at work be seriously impaired by a single serious illness but not by multiple illnesses having a serious impact? The answer, of course, is that it cannot; the disability is related to the cumulative impacts of illness on one’s body and mind.”).
FMLA’s purpose is to help working men and women balance the conflicting demands of work and personal life. The law requires courts to consider the seriousness of the afflicted individual’s condition because the law was designed to prevent individuals like Juanita Caldwell from having to choose between their livelihood and treatment for their own or their family members’ serious health conditions. Upon examining the seriousness of Kejuan’s ear infection, which required surgery to prevent deafness, we hold that there is at least a question of fact as to whether Kejuan’s condition was “serious” under the regulations.
On the second prong of the threshold inquiry, we believe that Caldwell has generated a genuine issue of fact regarding whether Kejuan received “subsequent treatment.” By regulation, a plaintiff will show subsequent treatment if the patient merely undergoes “[treatment two or more times by a health care provider ...”
An employer does not avoid liability by discharging an employee who takes leave in order to seek treatment for a condition that is later held to be covered by the FMLA. The employer who precipitously fires an employee, when the latter claims the benefits of leave under FMLA, bears the risk that the health condition in question later develops into a serious health condition within the meaning of 29 C.F.R. § 825.114(a).
In our view, a fact finder could determine that Kejuan suffered a serious health condition: his infection caused an acute phase, followed by a course of continuing treatment and disability, requiring further treatment and eventual surgery. While the record does not clearly delineate the nature of the incapacity at all times during this extensive period, the evidence does support a fact finding of incapacity extending more than three consecutive calendar days starting on June 7, 1997.
III. CONCLUSION
For the reasons stated above, the district court erred in granting a summary judgment of dismissal. Accordingly, we reverse and remand for further proceedings.
. There is a slight discrepancy in the record regarding the date of Kejuan's first visit to treat his ear infection: the medical record of his first visit shows a date of June 6, 1997 instead of June 7, 1997, the date presented by appellant. We nevertheless rely on the affidavit of the plaintiff for purposes of summary judgment. See Pace v. City of Des Moines, 201 F.3d 1050, 1052 (8th Cir.2000) ("Summary judgment is proper when the record, viewed in the light most favorable to the non-moving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”).
. The relevant portion of 29 C.F.R. § 825.114(a)(2) reads in its entirety:
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity (i.einability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor,. or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
.Dr. Deskin was the treating physician during this first emergency visit. His medical notes from this first visit state:
IMPRESSION:
Adenoidal hypertrophy and bilateral otitis media [inflammation of the middle ear]. PLAN:
Treat with Neo-Synephrine nose drops q.i.d. for 2 days to try to shrink the adenoidal tissue. Cefzil 250 b.i.d. [two times per day] for 10 days. Recheck with Dr. Wright his P.C.P. doctor in about 3 weeks for recheck of his ears and further adenoid evaluation.
J.A. at 59-60.
. Dr. Wright’s notes on July 1, 1997 state: "IMPRESSION: Persistent serous otitis, probably due to adenoid hypertrophy.... PLAN: Amoxil 250 mg. t.i.d. [three times per day] for ten days for persistent ear infection and refer to Dr. Troné for probable T & A.” J.A. at 60.
. The phrase “this entire time” relates to the mother's claim that Kejuan was incapacitated "for more than three (3) consecutive days."
. The dissent argues that Caldwell does not satisfy the regulatory requirement of incapacity for more than three days. It rests its argument, in part, on a statement during oral argument in which Caldwell's counsel appeared to acknowledge that Caldwell's supplemental affidavit mistakenly characterized Kejuan’s incapacity as lasting for "more than three days," when, in fact, Kejuan was only incapacitated for "at least three days.” Juanita Caldwell’s supplemental affidavit does state in the third paragraph that Kejuan was incapacitated for “more than three (3) consecutive days.” J.A. at 89. A narrow interpretation of counsel’s statement is not consistent with the record. Furthermore, the lawyer's last statement during the interchange discussed by the dissent shows that he intended to show that Kejuan was incapacitated for more than three days, in conformity with the regulations: "I think the rule is more than three days, in any event he was incapacitated.”
Dissenting Opinion
dissenting.
I respectfully dissent.
The district court correctly concluded that Kejuan did not have a “serious health condition” as defined by the Family and Medical Leave Act (FMLA). In this case involving continuing treatment by a health care provider, rather than inpatient care, Kejuan’s ear infection would qualify as a “serious health condition” only if it resulted in “[a] period of incapacity ... of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition.... ” 29 C.F.R. § 825.114(a)(2)(i) (emphasis added). In order to qualify as continuing treatment, the regulations specifically require an incapacity of more than three consecutive calendar days at the onset of the condition plus subsequent treatment or incapacity.
The record does not support Ms. Caldwell’s contention that Kejuan was incapacitated for more than three consecutive days at the time of the onset of the condition. Ms. Caldwell’s complaint listed no periods of incapacity. (JA at 1-3). Ms. Caldwell’s sworn response to interrogatory number 4, which asked her to list the dates of incapacitation, stated, “June 7, 8, and 9.” (JA at 27). Ms. Caldwell’s brief in response to
At oral argument, I asked counsel for Ms. Caldwell about the dates of Kejuan’s incapacity. The following exchange occurred:
Judge Hansen: In your response to interrogatory number 4, which is in the appendix at page 27, you state that this boy was incapacitated on June 7, 8, and 9, but in the supplemental affidavit from your client she states that he was incapacitated beginning on June 7 for more than three days, that’s appendix at 89, how do you explain that inconsistency?
Counsel: I guess I should have said at least three days, that’s what I was saying, it’s at least three days, 7, 8, and 9.
Judge Hansen: Is that what the rule is, at least three days?
Counsel: I think the rule is more than three days, in any event he was incapacitated. .Let me move on.
I respectfully disagree with the court’s characterization in footnote 6 of the exchange at oral argument. Clearly, the statement by counsel for Ms. Caldwell was an acknowledgment that the assertion in the supplemental affidavit was incorrect and that it should have stated “at least three days.” Counsel’s last statement was not an attempt to show conformity with the regulations, as footnote 6 suggests. Counsel’s last statement before changing the subject away from the dates of incapacity was an acknowledgment that “at least three days” of incapacity does not meet the FMLA requirement of more than three days of incapacity. Additionally, my interpretation of counsel’s concession at oral argument is consistent with the record. Nowhere in the record did Ms. Caldwell ever allege more than three days of incapacity during the time period of the June 7 absence until she was ordered by the district court to offer such evidence. If anything is inconsistent with or in the record, it is Ms. Caldwell’s supplemental affidavit. Kejuan’s ear infection did not, according to counsel’s own concession, incapacitate him for more than three days at the onset of the condition on June 7. The supplemental affidavit in response to Holland’s motion for summary judgment, as qualified by counsel at argument, does not present evidence sufficient to show a genuine dispute of material fact such that a reasonable jury could return a verdict in favor of Ms. Caldwell. See Davis v. Fleming Cos., Inc., 55 F.3d 1369, 1371 (8th Cir.1995).
The court would like to add together Kejuan’s incapacity on June 7, 8, and 9, along with his one-week period of incapacity following his July 17 surgery to remove his adenoids and tonsils and to place tubes in his ears, in order to meet the “more than three consecutive calendar days” requirement. Such an interpretation is inconsistent with the language of the regulation. Section 825.114(a)(2)(i) requires a period of more than three days incapacity and subsequent treatment or incapacity. As the court’s opinion explains, the applicability of the FMLA relies on a two-pronged inquiry. First, Kejuan must have been incapacitated for a period of “more than three consecutive calendar days;” second, Kejuan must have been subsequently treated or incapacitated. Although Ke-juan’s one-week recovery from his July 17 surgery met the second-prong “subsequent treatment or period of incapacity relating to the same condition” requirement of § 825.114(a)(2)®, Kejuan’s initial condition did not meet the first-prong requirement of a period “of more than three consecutive calendar” days of incapacity.
The court relies on Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir.1998), to support its contention that the time period following Kejuan’s surgery on July 17 meets the first prong requirement of more than three days of incapacity. However, Hodgens is distinguishable. In Hodgens, the plaintiff suffered from atrial fibrillation, a serious and potentially life-threatening heart condition. Id. at 157. Unfortunately, the doctor was unable to initially diagnose his condition. The plaintiffs first visit to the doctor was on August 4, 1993, but he was not correctly diagnosed until September 21, 1993. Id. During that time period, the plaintiff had numerous doctor’s appointments and medical tests to evaluate his condition. Once the plaintiff was correctly diagnosed, the doctor excused the plaintiff from work during the period of September 22 to September 27, 1993. Id. The First Circuit determined that the four-consecutive-day period of September 22 to September 27 met the three-day requirement of § 825.114(a)(2). Id. at 163. Thus, the First Circuit concluded that even the plaintiffs intermittent absences before the diagnosis were protected under the FMLA if the absences “were necessary to determine if a serious health condition exist[ed] or to treat such a condition.” Id. (internal citations and quotations omitted). However, only the absences that were actually necessary for the plaintiff to attend medical appointments related to his atrial fibrillation were protected under the FMLA. Id. at 172 (“[Ajpart from the period from September 22-27, while [the plaintiffs] medical condition clearly did require him to be absent from work ... for his medical visits, it did not require the vast majority of his absences during August and September.”).
Assuming Hodgens is a correct interpretation of the FMLA regulations pertaining to intermittent leave, its conclusion is not applicable to this case. The doctor for Ms. Caldwell’s son did not have any difficulty in correctly diagnosing Kejuan’s condition. At the initial June 7 visit, the doctor in
In contrast, the plaintiff in Hodgens suffered from a serious condition at the time of his initial doctor’s appointment, even though the doctor did not know exactly what that condition was. The doctor did, however, recognize that the plaintiff might be suffering from a serious condition, and therefore, the doctor ordered the plaintiff to undergo a series of tests. Hodgens, 144 F.3d at 157. In fact, the doctor initially suspected that the plaintiff might be suffering from angina, “which could be extremely serious or even fatal.” Id. The doctor testified that it was reasonable for the plaintiff to stay home from work until he got the results of his stress test. Id. This situation is completely different from Ms. Caldwell’s situation as evidenced by the fact that the doctor correctly diagnosed Kejuan’s condition, did not order any tests, recommended surgery in the future to correct the problem, and did not suggest that Kejuan should stay in bed or not participate in his normal activities. Certainly there is a distinction between an undiagnosed, potentially life-threatening heart condition and a properly diagnosed and promptly treated ear infection.
Unlike the First Circuit, this court today has greatly expanded the definition of incapacity to include periods of time when a patient is taking antibiotics or if the illness disrupts basic daily routines. The court suggests that Kejuan may have been incapacitated for at least the ten-day period following the onset of the illness during which time Kejuan was taking antibiotics and that he may have been incapacitated for the entire period from June 7 to July 17, an assertion never made even by Ms. Caldwell. The court has supplanted the express guidance provided by the FMLA regulations with its own view of what constitutes an incapacity. See 29 C.F.R. § 825.114(a)(2)(i) (Incapacity is an “inability to work, attend school or perform other regular daily activities.”). In this respect, I reject the court’s suggestion that “incapacity” under the FMLA may be defined by the sniffle standards imposed by a local daycare center.
The legislative history of the FMLA indicates that Congress intended the FMLA to apply only to serious health conditions. Congress did not include those “minor illnesses which last only a few days and surgical procedures which typically do not require hospitalization and require only a brief recovery period.” Seidle, 871 F.Supp. at 242 (quoting H.R.Rep. No. 103-8, pt. 1, at 29 (1993)). Kejuan’s ear infection, up until the point of his surgery, was a minor illness as shown by his not more than three days of incapacity, his improvement on the onset day which allowed his mother to work on the evening of onset (June 7) and to return to work on June 9, the lack of any restrictions placed on him by his doctor, the length of time between his June 7 initial doctor visit and his next follow-up visit on July 1, and the scheduling of his surgery nearly six weeks after the onset of his illness. Ms. Caldwell’s one-day absence from work on June 7 to take her son to the doctor is not the type of absence that Congress enacted the FMLA to cover. Congress expected absences for these types of minor illnesses to be covered under an employer’s sick leave policy. See id.
Consequently, I would affirm the judgment of the district court because Kejuan did not have a “serious health condition”
