Dalton v. ManorCare of W. Des Moines Ia, LLC

• Decision Date: 07 April 2015
• Docket Number: No. 13–3743.,13–3743.
• Citation: 782 F.3d 955
• Parties: Lucinda DALTON, Plaintiff–Appellant v. MANORCARE OF WEST DES MOINES IA, LLC, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

782 F.3d 955

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.

Melissa C. Hasso, argued, Mark D. Sherinian, on the brief, West Des Moines, IA, for Plaintiff–Appellant.

George R. Wood, argued, Rhiannon C. Beckendorf, on the brief, Minneapolis, MN, for Defendants–Appellees.

Before LOKEN, BYE, and SMITH, Circuit Judges.

Opinion

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), 29 U.S.C. §§ 2601 et seq., and discriminated against her because of her Chronic Kidney Disease

disability in violation of the Iowa Civil Rights Act, Iowa Code Ch. 216, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. Defendants removed the suit to federal court. After extensive discovery, the district court¹ granted defendants summary judgment, dismissing all claims. Dalton appeals the dismissal of her FMLA claims, arguing that Manor Care wrongfully interfered with her FMLA rights by terminating her during an FMLA-protected absence. Reviewing the district court's decision de novo, we affirm. See Phillips v. Mathews, 547 F.3d 905, 909 (8th Cir.2008) (standard of review).

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 performance-related issue could result in termination.

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 over-due 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 position. 29 U.S.C. § 2612(a)(1)(D). The Act makes it unlawful for an employer to “interfere with, restrain, or deny” an employee who exercises or attempts to exercise that right. 29 U.S.C. § 2615(a)(1). “An employee can prevail under an interference theory if [she] was denied substantive rights under the FMLA for a reason connected with [her] FMLA leave.” Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.2012) (quotation omitted); see Lovland v. Employers Mut. Cas. Co., 674 F.3d 806, 810–12 (8th Cir.2012).

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.” 29 U.S.C. § 2611(11). While the definition is broadly worded, the FMLA was not intended to cover all medical conditions. “With respect to an employee, the term ‘serious health condition’ is intended to cover conditions or illnesses that affect an employee's health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery.” H.R.Rep. No. 103–8(I), 103d Cong., 1st Sess., 1993 WL 30779 at *40 (1993) ; see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005). The Department of Labor's regulations define “continuing treatment” as involving periods of both incapacity and treatment. 29 C.F.R. § 825.115. “Incapacity” means “inability to work ... due to the serious health condition, treatment therefore, or recovery therefrom.” § 825.113(b). “Treatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” § 825.113(c).

Dalton contends that her condition from mid–2010 until termination in March 2011 was a “chronic serious health condition” within the meaning of the...