Russell v. North Broward Hosp., No. 02-13343.

• Citation: 346 F.3d 1335
• Decision Date: 02 October 2003
• Docket Number: No. 02-13343.
• Parties: Margaret RUSSELL, Plaintiff-Appellant, v. NORTH BROWARD HOSPITAL, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

346 F.3d 1335

Margaret RUSSELL, Plaintiff-Appellant, v. NORTH BROWARD HOSPITAL, Defendant-Appellee.

No. 02-13343.

United States Court of Appeals, Eleventh Circuit.

October 2, 2003.

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Jerome A. Pivnik, Pivnik & Nitsche, P.A., Miami, FL, for Plaintiff-Appellant.

Linda Spaulding White, Conrad, Scherer, White, Fort Lauderdale, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CARNES, Circuit Judges, and CONWAY^*, District Judge.

CARNES, Circuit Judge:

This is Margaret Russell's appeal from a judgment in favor of the North Broward Hospital District, her former employer, in the lawsuit she brought against it. The Hospital terminated Russell's employment because it concluded that she had been absent from work too much. Russell does not deny being away from work when the Hospital says she was, but she contends that her absences were for medical reasons and were protected under the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654, and for that reason the Hospital could not fire her for being out of work.

The Hospital does not deny that Russell was out for medically-related reasons, but contends that her absences nonetheless were not protected leave under the FMLA. If that is correct, the Hospital was free to fire Russell without running afoul of the Act — notwithstanding the irony of its doing so, given the business it is in.

The correctness of the Hospital's legal position, and of the judgment it obtained based upon that position, depends on whether the medical condition which caused Russell's absences from work is a "serious health condition" involving continuing treatment, as that term is used in the FMLA. 29 U.S.C. § 2611(11). The answer to that question, in turn, depends upon the interpretation and validity of 29 C.F.R. § 825.114, a regulation that the Department of Labor adopted to provide an objective definition for the terms "serious health condition" and "continuing treatment." The regulation does so, in relevant part, by specifying that in order to qualify as a serious health condition involving continuing treatment under the FMLA, the health condition must result in a period of incapacity of "more than three consecutive calendar days."

The issue the facts of this case present about the meaning of the regulatory definition is whether the only days of incapacity that count are those in which the employee is incapacitated all day long. If so, the leave that Russell took fails to meet the requirements of a "serious health condition involving continuing treatment," as defined in the regulation, because she was never incapacitated for any continuous period of more than 72 hours. Our answer to that issue requires us to decide as well whether the regulation is invalid insofar as it adopts a definition of "serious health condition involving continuing treatment" that imposes a more-than-72-hour incapacity requirement.

Those two issues are pretty much what this case is about, although there are also some collateral and ancillary issues which we need to address along the way to explaining our conclusion that "more than three consecutive calendar days" of incapacity means a period of continuous incapacity extending more than 72 hours and our conclusion that this regulatory definition is not invalid. Given those two holdings and the facts of this case, the last word in this opinion is: "Affirmed."

I

A.

Margaret Russell began working at the Hospital as a Patient Accounts Adjustment Representative in June of 1996. She was employed through a temporary employment agency until April 21, 1997, when the Hospital gave her a permanent position. Russell's duties included computer work, light typing, filing, and telephone work. By mid-January of 2000, Russell had been disciplined three times for unscheduled absences. She had received a verbal reprimand on June 24, 1999, a written corrective action report on July 6, 1999, and a written final corrective action report on January 17, 2000. Under the Hospital's progressive disciplinary system Russell was suspended for three days without pay after her third transgression and risked termination if her absenteeism continued.

On May 31, 2000, Russell slipped and fell at work. The events of the ten days immediately following that accident are at the heart of this appeal, so we lay them out in some detail. The same day that Russell fell, the Hospital's Employee Health Department referred her to the Medwork clinic, a Hospital approved workers' compensation health care provider, for examination. She was diagnosed with a fractured right elbow and a sprained ankle (later she learned that her ankle was actually fractured). When Russell fell, she also aggravated an existing wrist condition for which she had been receiving treatment before she fell. The treating physician gave Russell a sling for her arm and prescribed Darvocet for her pain. The physician told Russell that she could return to work, but restricted the use of her right arm. After leaving the Medwork clinic and filling her prescription, Russell did return to work and finish out her shift.

The next day, June 1, Russell reported to work at 8:00 a.m. but left at 10:00 a.m. to go back to the Medwork clinic because she was experiencing what she described as "severe pain." Medwork told her that she needed to consult an orthopaedist about her injuries. Russell, still in pain, called her supervisor, Marsha Miller, and told her that she would not be returning to work that day. She also asked for the following day off, but Miller refused. Russell was paid for two hours of work and six hours of sick leave that day.

On June 2 Russell again reported to work at 8:00 a.m., but soon began to feel ill and started vomiting (she says it was because she had taken her pain medication on an empty stomach). Russell informed a supervisor that she could not continue working that day and she went home at 9:05 a.m. Also on June 2, Luane Rutt, the Hospital's workers' compensation agent, authorized Russell to see an orthopaedist and scheduled her an appointment for June 5.

Russell testified that she was in "excruciating pain" over the weekend of June 3 and 4. The record reveals nothing else about that weekend. On the following Monday, June 5, Russell went to see an orthopaedist, Dr. Boutin, who certified that she could return to work but indicated that she should have "light duty" because she "cannot use right arm." Dr. Boutin also told Russell to keep taking the Darvocet for her pain. She scheduled a follow-up appointment with Dr. Boutin for a week later. After her appointment on June 5, Russell went to work for the remainder of her shift, from about 11:20 a.m. to 4:30 p.m. Because she was having trouble performing her duties, she requested the use of a speaker phone. The Hospital did not provide her with one that day or at any other time during her final week of employment.

On June 6 Russell reported to work at 8:00 a.m. but, because the pain had yet to subside, she asked Miller if she could leave early. Miller allowed her to do so, and Russell left work at 2:00 p.m.

On June 7 Russell was scheduled for another appointment with Medwork, but Rutt called her at home the evening before, and again that morning, and told her not to go to Medwork, but instead to wait for Rutt to schedule an appointment for Russell to see Dr. Boutin that day. Russell did not go in to work, but instead waited at home for Rutt's call. When Rutt finally called back at 2:30 p.m. she told Russell that Dr. Boutin's office would be calling her with an appointment time. Dr. Boutin's office did call and tell Russell she had an appointment for 3:30 that afternoon. Russell said she did not have enough time to get to that appointment and would not be going. She did not go to the appointment or to work, but she did call Miller and explain why she had failed to report to work. The next day, June 8, Russell worked a full day.

On June 9 Russell returned to see Dr. Boutin, and one of his assistants placed her arm in a cast. She left the doctor's office at 11:15 a.m. and went home to get her medicine and change clothes. She fell asleep at home, did not go to work that day, and did not call to inform Miller that she was going to be out.

On Monday, June 12, Miller called Russell into her office shortly after Russell reported to work. Miller told her to go home, that human resources would contact her. The next day, Miller called Russell and asked her to come in for a meeting at 10:30 a.m. At the meeting, the Hospital terminated Russell's employment because of her excessive absenteeism.

B.

Thereafter, Russell filed this lawsuit claiming that the Hospital had retaliated against her for exercising a protected FMLA right. The protected right she claims is the right to be absent from work during the period between May 31 and June 9, 2000, for a serious health condition.¹ Russell's complaint also includes a claim that the Hospital fired her in retaliation for filing a workers' compensation claim, in violation of the Florida Workers' Compensation Act. (On May 31, 2001, Russell filed an amended complaint which added a claim under 42 U.S.C. § 1983, but the district court later dismissed that claim, and Russell does not pursue it on appeal.)

At trial, in connection with her FMLA claim Russell submitted a jury instruction relating to the requirements for a "serious health condition." Her proposed instruction tracked the statutory language, but it did not include the regulation-based requirement of more than three consecutive calendar days of incapacity. The Hospital submitted its own proposed jury instruction, which did include the requirement. The district court, over Russell's objection, instructed the jury that more than three consecutive calendar days of incapacity are required to constitute a "serious health condition."

During its deliberations, the jury submitted several...