Lucinda DALTON, Plaintiff-Appellant v. MANORCARE OF WEST DES MOINES IA, LLC, et al., Defendants-Appellees.
No. 13-3743.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 9, 2014. Filed: April 7, 2015. Corrected: April 8, 2015.
782 F.3d 955
Draper does not dispute that he received notice of the hearing, that a hearing was held, that witnesses testified under oath, that exhibits were admitted, that a record was made, and that a written decision was rendered. Thus, this was a contested case. Had Draper attended the hearing, he could have sought to establish “the triviality of the charges against him,” as they were characterized by his counsel on appeal, by cross-examining the witnesses and by presenting evidence on his behalf.
Draper also argues that the City Council decision was not supported by the evidence and that it was arbitrary and capricious. Judicial review of a contested case is governed by
VII. Conclusion
The district court‘s judgment is affirmed.
George R. Wood, argued, Rhiannon C. Beckendorf, on the brief, Minneapolis, MN, for Defendants-Appellees.
Before LOKEN, BYE, and SMITH, Circuit Judges.
LOKEN, Circuit Judge.
Nurse Lucinda Dalton was terminated from her supervisory position as Director of Care Delivery (DCD) at the ManorCare of West Des Moines skilled nursing facility. Dalton brought this action against ManorCare, various ManorCare affiliates, and three ManorCare managers (collectively, ManorCare), alleging they interfered with her statutory rights under the Family and Medical Leave Act (FMLA),
I.
Dalton served as a ManorCare nurse from May to July of 2009. Rehired in March 2010, she was promoted to DCD in September. That summer and fall, Dalton began experiencing significant weight gain and edema (excess fluid that makes tissues appear doughy). Her primary health care provider, Karen Heffernan, P.A., discontinued a high blood pressure medication, suspecting Dalton‘s edema was a side effect. This did not resolve the problems. In late December, Dalton had gained fourteen pounds and had pitting edema; Heffernan prescribed a fluid retention medication, noting Dalton expressed concern about kidney failure but her kidney functions had been normal in October. At a December 29 appointment, Heffernan noted concern that Dalton had not lost weight and sent her to Penn Avenue Internal Medicine in early January 2011 for a chest x-ray and for testing of her kidney functions and thyroid. The examining physician noted “weight gain of 15 pounds and edema, uncertain etiology,” shortness of breath, and a history of mild persistent asthma. Dalton‘s chest x-ray was normal. He referred Dalton to a kidney specialist, Robert Leisy, D.O., for an evaluation of her edema and excess fluids.
Dalton saw Dr. Leisy on January 25, 2011. He diagnosed Stage One Chronic Kidney Disease (CKD), “secondary to obesity,” not edema,2 and referred Dalton to Iowa Radiology for renal3 testing. On February 4, it reported no abnormal kidney function. To treat Dalton‘s persistent edema, Dr. Leisy replaced the fluid retention medications prescribed by Heffernan because of a possible allergy. Dalton came to a follow-up appointment with Dr. Leisy on February 15. He noted modest improvement in her edema (a five pound weight loss) and no “renal etiology.” In a deposition, Dr. Leisy testified that, on this second visit, he did not identify the cause of Dalton‘s edema. He described a number of possible causes and noted the possibility that no organ would ever be identified as causing the condition. He associated Dalton‘s Stage One CKD with obesity.
In early 2011, ManorCare nurses that Dalton supervised complained about her job performance to Dalton‘s supervisor, Holly Benedict. On February 21, Dalton met with Benedict and the facility‘s Human Resources Director, Memorea Schrader. They issued Dalton a Third/Final Written Warning for violating Major/Type B Work Rules. The Final Warning cited inappropriate negative comments about her work at the nurses’ station, where patients could overhear; failure to notify staff members she had cancelled a meeting; and taking an extended lunch break and failing to attend patient care conferences. A Performance Improvement Plan accompanied the Final Warning, listing actions to correct the deficiencies and stating that Dalton and Benedict “will meet in one week to discuss progress.” Dalton understood that any further
At the February 21 meeting, Dalton also was issued a First Written Warning reciting that she had arrived late, left early, or called in on ten different days between January 18 and February 18, 2011. For this Minor/Type C attendance issue, the employee handbook prescribed progressive disciplines that “normally require four stages” before termination. Dalton testified:
Q. Was there any discussion in that meeting at all about the reasons for your absences?
* * * *
A. There was discussions about it, about my medical condition being the reason ... for some of my absences. And that was the time that I asked about the FMLA. I wanted to know if my job would be protected or if I could be cover[ed for] any of my absences with FMLA. And that‘s when Memorea told me no, I was not eligible.4
On Friday, February 25, Benedict spoke to Dalton about a number of unfinished tasks—completing overdue care plans, investigating and completing a report for two patient call-light responses, conducting skin sweeps on her patients, and completing paperwork for a new patient. Dalton testified that she believed she had until the end of the month on Monday to complete skin sweeps, care plans, and admission paperwork. When Benedict checked on Dalton‘s progress later on Friday, Dalton had left for the day, without completing care plans and call-light responses. Benedict also discovered on Dalton‘s desk a lab report with abnormal results that had not been passed along to the appropriate nurse.
Early on Monday, February 28, Dalton called Benedict, reporting that she was having chest pains and was going to the emergency room, where she was admitted with complaints of “atypical chest pain.” Dalton was discharged at 4:30 without a definite diagnosis of the chest pain, with instructions to follow up with Dr. Leisy and Heffernan as soon as possible and a physician‘s note excusing her from work until Wednesday, March 2, which Dalton reported to Benedict. Benedict instructed Dalton to come to work at 1:00 on March 2, when Benedict and Schrader advised Dalton that she was suspended pending an investigation into her failure to perform job functions. Dalton testified she asked again about FMLA leave and was again told she was ineligible. On March 3, ManorCare issued Dalton a warning for failing to “observe written/oral instructions and carry out job responsibilities without errors,” a Type C Work Rule violation that, combined with her prior Third/Final Written Warning, resulted in termination. This lawsuit followed.
II.
The FMLA entitles an eligible employee to twelve weeks of unpaid leave during any twelve-month period if she has a serious health condition that makes her unable to perform the functions of her
Dalton argues that ManorCare interfered with her FMLA rights by terminating her for failing to perform job duties on February 28, when she was in the hospital being treated for a chronic serious health condition protected by the FMLA. The district court granted ManorCare summary judgment on three alternative grounds: (1) Dalton “failed to provide evidence she suffered from a serious health condition that made her unable to perform the functions of her position.” (2) “Although Dalton had informed Benedict and Schrader about symptoms she was experiencing, she failed to place them on the required notice that she was going to be absent on February 28 and March 1, 2011, for a medical condition protected by the FMLA.”5 (3) “Defendants provided at least three reasons for terminating Dalton‘s employment, none of which had anything to do with Dalton‘s alleged serious health condition.” We need discuss only the first and third.
A. FMLA defines “serious health condition” as “an illness, injury, impairment or physical or mental condition that involves” inpatient care or “continuing treatment by a health care provider.”
Dalton contends that her condition from mid-2010 until termination in March 2011 was a “chronic serious health condition” within the meaning of the regulations—one which “(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider ... (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma ... etc.).”
Changing focus on appeal, Dalton argues that her unexplained edema and substantial weight gain were a “chronic serious health condition.” But she did not make this fact-intensive argument to the district court. And she cites no authority—other than her expansive interpretation of ambiguous Department of Labor regulations—supporting the assertion that her edema and obesity were chronic serious health conditions entitling Dalton to FMLA leave. It is undisputed the conditions did not affect her ability to perform the functions of her position, and she did not request leave other than time needed to attend periodic medical appointments, which ManorCare consistently allowed. We do not doubt that edema and fluid retention may be signs of a potentially serious condition, such as congestive heart failure, liver disease, or primary kidney disease. But no such condition was ever diagnosed, and ManorCare did not interfere with Dalton‘s frequent medical appointments to obtain needed diagnosis and treatment.
Moreover, Dalton‘s edema and fluid retention did not result in any “incapacity“—inability to work—other than brief absences to obtain medical diagnosis and treatment. Dalton argues she was incapacitated on February 10 and 11, when she visited Heffernan with a myriad of complaints—cough, severe rash, continued fluid gain, and depression. Heffernan diagnosed pruritus and acute bronchitis, prescribed medication, and told Dalton to stay off work for two days. Those were “short-term conditions” FMLA was not intended to cover. Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir.1997). Thus, as in Price v. Marathon Cheese Corp., 119 F.3d 330, 335 (5th Cir.1997), Dalton‘s “manifestation of this condition did not rise to the level of ‘serious health condition.‘” See Beal v. Rubbermaid Commercial Prods. Inc., 972 F.Supp. 1216, 1224-25 (S.D.Iowa 1997) (eczema not a serious health condition); Boyce v. N.Y.C. Mission Soc., 963 F.Supp. 290, 299 (S.D.N.Y.1997) (chest pain and shortness of breath not a serious health condition).
For these reasons, we agree with the district court that the summary judgment record establishes that, as of the February 21 job performance meeting, Dalton was not suffering from a “chronic serious health condition,” and ManorCare had not interfered with her efforts to seek diagnosis and treatment for the alarming but less serious conditions she was experiencing.
B. That brings us to the ten days that are critical to this dispute, the meeting on February 21, when Dalton was given a Third/Final Written Warning and Performance Improvement Plan; the interaction on February 25, when Benedict concluded that Dalton went home without completing work she had been instructed to complete; the events on February 28,
Dalton argues her February 28 hospital admission was a second period of incapacity attributable to a chronic serious health condition. But as we have explained, Dalton had no chronic serious health condition at that time, only recurring health issues that did not make her unable to perform her job. Moreover, Dalton failed to prove that her “atypical chest pain” on February 28 was “due to” her alleged chronic condition. The medical records prior to February 28 contain no mention of chest pain, let alone severe chest pain. There is no evidence, as
C. Finally, even if Dalton had a chronic serious health condition so that her hospital visit on February 28 was FMLA-protected, we agree with the district court that ManorCare was entitled to summary judgment because it terminated Dalton for reasons other than her work absences on February 28 and March 1. Prior to this absence, Dalton was given a Third/Final Written Warning for performance deficiencies unrelated either to her medical condition or to attendance issues. When Dalton returned to work on March 2, ManorCare resumed the disciplinary process it commenced on February 21, concluded that Dalton had violated more performance work rules in the interim, and terminated her consistent with the disciplinary provisions in its employee handbook.7
Unlike nearly all our prior FMLA interference cases, this was not a termination for excessive absenteeism. In such cases, the issue often turns on whether absences the employer took into account were in fact FMLA-protected, in which case there may have been wrongful interference. See, e.g., Lovland, 674 F.3d at 812-13. Here, by contrast, Dalton‘s termination was the end of an on-going, unrelated disciplinary process. “[N]o employee taking FMLA leave is entitled to ‘any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.‘” Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977 (8th Cir.2005), quoting
Dalton testified that she believed ManorCare terminated her because of medically-justified poor attendance, rather than unrelated performance deficiencies. But it is undisputed that ManorCare was serious-
The judgment of the district court is affirmed.