205 F.3d 370 (8th Cir. 2000), 99-1656, Thorson v Gemini Inc.

Docket Nº:99-1656, 99-1708, 99-2059
Citation:205 F.3d 370
Party Name:KATHERINE A. THORSON, APPELLEE, v. GEMINI, INC., APPELLANT. EQUAL EMPLOYMENT ADVISORY COUNCIL; SOCIETY FOR HUMAN RESOURCE MANAGEMENT; NATIONAL ASSOCIATION OF MANUFACTURERS, AMICI ON BEHALF OF APPELLANT, SECRETARY OF LABOR, AMICUS ON BEHALF OF APPELLEE. KATHERINE A. THORSON, APPELLANT, v. GEMINI, INC., APPELLEE. EQUAL EMPLOYMENT ADVISORY COUNCIL; SO
Case Date:March 03, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 370

205 F.3d 370 (8th Cir. 2000)

KATHERINE A. THORSON, APPELLEE,

v.

GEMINI, INC., APPELLANT.

EQUAL EMPLOYMENT ADVISORY COUNCIL; SOCIETY FOR HUMAN RESOURCE MANAGEMENT; NATIONAL ASSOCIATION OF MANUFACTURERS, AMICI ON BEHALF OF APPELLANT,

SECRETARY OF LABOR, AMICUS ON BEHALF OF APPELLEE.

KATHERINE A. THORSON, APPELLANT,

v.

GEMINI, INC., APPELLEE.

EQUAL EMPLOYMENT ADVISORY COUNCIL; SOCIETY FOR HUMAN RESOURCE MANAGEMENT; NATIONAL ASSOCIATION OF MANUFACTURERS, AMICI ON BEHALF OF APPELLEE,

Page 371

SECRETARY OF LABOR, AMICUS ON BEHALF OF APPELLANT.

Nos. 99-1656, 99-1708, 99-2059

United States Court of Appeals, Eighth Circuit

March 3, 2000

Submitted: November 18, 1999

Appeals from the United States District Court for the Northern District of Iowa.

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Before Bowman, Lay, and Hansen, Circuit Judges.

Bowman, Circuit Judge.

Gemini, Inc., appeals from the orders of the District Court granting judgment and awarding damages to Katherine A. Thorson1 on her claim under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (1994) (FMLA or Act). Thorson cross appeals, challenging certain aspects of the damages award. We affirm.

I.

Thorson began working in the packing and shipping department of Gemini's plant in Decorah, Iowa, in September 1986. Acceptable absenteeism at Gemini was limited to five percent of an employee's scheduled work hours in a rolling twelve-month period. The limit covered all absences (except those for scheduled vacation, holidays, or approved leaves of absence), regardless of cause and including absences for illness. Those employees with excessive absenteeism (greater than five percent) were subject to termination.

Thorson left work on Wednesday, February 2, 1994, complaining of diarrhea and stomach cramps and went to see a physician. She was absent from work on Thursday and Friday, and returned Monday, February 7, with a note from her doctor (presumably written at her February 2 visit) indicating "no work" until Monday, February 7. On Monday, she worked only a few hours before returning to the doctor with stomach pain. The doctor ordered tests for Friday, February 11, suspecting either a peptic ulcer or gallbladder disease. The test results were normal. Thorson returned to work on Monday, February 14, again with a doctor's note stating "no work" until February 14. Thorson worked that week but was terminated on February 18 for absenteeism exceeding five percent of her scheduled work hours during the previous twelve months. On March 9, another doctor determined that Thorson had a small hiatal hernia, mild antral gastritis that could be managed with antacid, and duodenitis, all stress-related.

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In January 1995, Thorson filed a complaint in the District Court against Gemini alleging various violations of state and federal law, including a claim under the FMLA. Under the Act, an eligible employee is entitled to twelve weeks of unpaid leave during any twelve-month period for any of several reasons, including "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D); see id. § 2611(2)(A) (defining eligible employee). The employee is entitled to be restored to her job (or to an equivalent position) upon her return to work after taking FMLA leave. See id. § 2614(a). Further, the employee's FMLA absences cannot count against her under her employer's "no fault" attendance policy. See 29 C.F.R. § 825.220(c) (1999). Thorson claimed she was entitled to FMLA leave for her February 1994 absences, and therefore she should not have been terminated for excessive absenteeism.

The District Court granted summary judgment to Gemini on all counts of Thorson's complaint. As to her FMLA claim in particular, the court concluded that Thorson could not prove that the illness at issue was a "serious health condition," as she claimed. Thorson appealed, but only the adverse judgment on her FMLA claim. This Court reversed and remanded "to give the parties an additional chance to argue, and the district court another chance to determine, whether Thorson's condition meets the regulatory criteria for a serious health condition" in light of a Department of Labor (DOL) opinion letter that was released while Thorson's appeal was pending. Thorson v. Gemini, Inc., 123 F.3d 1140, 1141-42 (8th Cir. 1997).

Revisiting the issue with the benefit of the DOL opinion letter, the District Court2 concluded that Thorson's illness in February 1994 was indeed a "serious health condition" within the meaning of the FMLA. See Thorson v. Gemini, Inc., 998 F.Supp. 1034 (N.D. Iowa 1998). The court granted summary judgment to Thorson on the issue of liability and denied Gemini's motion for summary judgment. The case then proceeded to trial before Magistrate Judge Jarvey3 on the issue of damages. The Magistrate Judge awarded Thorson $49,591.86 plus interest, costs, and attorney fees, but no liquidated damages. Gemini appeals and Thorson cross appeals.

II.

In its appeal, Gemini raises issues relating both to the question of FMLA liability and to the trial on damages. We address each in turn.

A.

Gemini contends that the District Court erred in granting summary judgment to Thorson on the question of FMLA liability because Thorson did not have a "serious health condition" within the meaning of the Act.4 Our review of a district court's decision to grant summary judgment is de novo, and we apply the same standard as the district court. See Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1147 (8th Cir. 1998). That is, we will affirm if, upon review, we agree that there are no genuine issues of material fact and that Thorson is

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entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

We look first to the language of the statute as Congress enacted it for a definition of "serious health condition." As relevant here, the FMLA defines the phrase as "an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider." 29 U.S.C. § 2611(11)(B). It is undisputed that Thorson had an "illness" or a "physical . . . condition," so we focus our attention on what is required to prove "continuing treatment by a health care provider." To answer that question, we consult the regulations prescribed by the Secretary of Labor and the definition of "serious health condition" therein. Id. § 2654 (directing Secretary of Labor to "prescribe such regulations as are necessary to carry out" the Act). As we shall see, it was the DOL's decision that "serious health condition" should be defined by an objective test that could be applied consistently based on the facts of each case.

In June 1993, the Secretary first promulgated the interim final rule, effective August 5, 1993, also the effective date of the Act for most affected employers and employees. See The Family and Medical Leave Act of 1993, 58 Fed. Reg. 31,794 (1993) (interim final rule). The final rule appeared in the Federal Register on January 6, 1995, with an effective date of April 6, 1995.5 See 60 Fed. Reg. 2180 (1995) (final rule); id. 16,382 (noting change in effective date and reporting corrections).

The interim final rule was the only official guidance available to Gemini (or to anyone else) at the time Thorson was terminated in February 1994. Thus, if we find the final rule in direct conflict with the interim rule, we do not see how we can give the later version of the rule retroactive effect when no retroactive intent has been expressed. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("[A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms."). On the other hand, the expanded final regulations, to the extent they merely amplify the language of the interim regulations, may provide valuable guidance to us as we apply the law to the facts here. In addition, the parties have directed our attention to the legislative history for congressional exposition on the FMLA and to DOL opinion letters for the agency's interpretation of its own regulations. It is axiomatic that neither of these resources provides controlling authority for our inquiry, but, again, they may provide helpful insight. We will explain the relative weight we give to these sources of possible clarification or explication as we consider each of them.

This is the definition of "serious health condition," as relevant to Thorson's claim, that appears in the interim final rule: "For purposes of FMLA, 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves: . . . . [a]ny period of incapacity requiring

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absence from work . . . of more than three calendar days, that also involves continuing treatment by . . . a health care provider." 29 C.F.R. § 825.114(a)(2); see id. § 825.800 (definitions). On its face, then, the interim final rule sets forth three objective requirements that must be met before Thorson can be deemed to have had a "serious health condition": she must have had a "period of incapacity requiring absence from work," that period must have exceeded three calendar days, and she must have had "continuing treatment by . . . a health care provider" within that period.

Before we proceed, we must clear up some confusion in this case about what are fact questions and what is to be decided by a court as a matter of law when determining whether an individual has a "serious health condition" within the meaning of the...

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