Thorson v. Gemini, Inc., C 95-2009 MJM.

• Decision Date: 09 March 1998
• Docket Number: No. C 95-2009 MJM.,C 95-2009 MJM.
• Citation: 998 F.Supp. 1034
• Parties: Katherine A. THORSON, Plaintiff, v. GEMINI, INC., Defendants.
• Court: U.S. District Court — Northern District of Iowa

998 F.Supp. 1034

Katherine A. THORSON, Plaintiff, v. GEMINI, INC., Defendants.

No. C 95-2009 MJM.

United States District Court, N.D. Iowa, Eastern Division.

March 9, 1998.

Dale E. Putnam, Putnam & Strand, Decorah, IA, for Plaintiff.

Charles A. Blades, Blades & Carmichael, Cedar Rapids, IA, Terence M. Fruth, Mary L. Knoblauch, Fruth & Anthony PA, Minneapolis, MN, for Defendants.

OPINION AND ORDER

MELLOY, Chief Judge.

Katherine Thorson sued her former employer, Gemini, Inc., claiming that her termination from Gemini violated the Family and Medical Leave Act.¹ After finding that Thorson's termination did not violate the FMLA because her illness did not appear to meet the regulatory criteria for a "serious health condition," as defined by 29 C.F.R. § 825.114, this Court granted summary judgment to Gemini.

The plaintiff then appealed this Court's summary judgment regarding the FMLA claim. After the appellate briefs were filed with the Eighth Circuit Court of Appeals, the Department of Labor issued an opinion letter discussing what constitutes a "serious illness" under section 825.114. In light of this opinion letter,² the Eighth Circuit believed it would be "prudent 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." Thorson v. Gemini, 123 F.3d 1140, 1141 (8th Cir.1997). The Eighth Circuit thus remanded the case to this Court for further proceedings as this Court deemed necessary.

On remand, both the plaintiff and the defendant filed motions for summary judgment, and the Secretary of Labor filed a brief as amicus curiae. This Court heard oral argument on these motions and, at the conclusion of the oral argument, denied the defendant's motion for summary judgment but reserved ruling on the plaintiff's motion. The Court must therefore decide whether to grant summary judgment to the plaintiff on the issue of liability.

Discussion

The Eighth Circuit succinctly summarized the events preceding Thorson's termination as follows:

The events leading up to Thorson's termination began on February 3, 1994, when she left work early and went to the Howard County Hospital because she was experiencing stomach problems. Dr. John LaCelle examined Thorson and believed that she was suffering from acute gastritis and possibly a peptic ulcer. He ordered her not to return to work until February 7 and treated her with ulcer medication (Axid) and antacids. On February 7, Thorson returned to work but again felt ill and returned to Dr. LaCelle. At the conclusion of this examination, Dr. LaCelle still believed that Thorson may have been suffering from a peptic ulcer or possibly gall bladder disease, and he scheduled Thorson for an upper gastrointestinal test and a gall bladder test on February 11. Dr. LaCelle ordered Thorson not to return to work until February 14. The tests Thorson underwent on February 11 came back normal, and Thorson returned to work on February 14. Thorson worked until February 18, at which time she was fired for excessive absenteeism. On March 9, 1994, after undergoing an upper gastrointestinal endoscopy, Dr. Joan Kepros concluded that Thorson was suffering from a small hiatal hernia and mild antral gastristis and duodenitis.

123 F.3d at 1140-41.

Although Thorson did indeed miss work because of her illness, the Family Medical Leave Act (FMLA) would allow Thorson to take up to a total of 12 workweeks of leave per year if she has a "serious health condition" that renders her unable to perform the functions of her job. 29 U.S.C. § 2612(a)(1)(D)(1994); see also Thorson, 123 F.3d at 1141. The Department of Labor's regulations implementing the FMLA forbid an employer from counting FMLA leave time under "no-fault" attendance policies. 29 C.F.R. § 825.220(c); Thorson, 123 F.3d at 1141. Because Gemini considered Thorson's absences to be unexcused and thus outside the umbrella of the FMLA,³ this Court must decide whether Thorson's illness qualified as a "serious health condition" so as to excuse her absences under the FMLA.

The FMLA defines a "serious health condition" 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). The Department of Labor's regulations further explain that continuing treatment by a health care provider includes a period of incapacity (i.e., inability to work) of more than three consecutive calendar days and treatment by a health care provider on two or more occasions. 29 C.F.R. § 825.114(a)(2)(i); Thorson, 123 F.3d at 1141.

In addition to these regulatory criteria, other provisions state that:

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches... etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

29 C.F.R. § 825.114(c). In an opinion letter the Department of Labor issued after this Court granted summary judgment to Gemini, the Department of Labor further explained the following:

Ordinarily, we anticipate that these health conditions would not meet the definition in 825.114(a)(2), as they would not be expected to last for more than three consecutive calendar days and require continuing treatment by a health care provider as defined in these regulations. If, however, any of these conditions met the regularly criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA....

Opinion FMLA-86, Wage and Hour Manual (BNA), 99:3091, 99:3091-92 (Dec. 12, 1996).

In its previous opinion granting summary judgment to Gemini, this Court found that Thorson's illness was best described as an upset stomach and a minor ulcer. Because such conditions are explicitly listed as conditions that ordinarily do not meet the definition of a "serious health condition," this Court concluded that her conditions could not qualify as a "serious health condition"—even if they otherwise met the "continuing treatment by a health care provider" prong in 29 C.F.R. § 825.114(a)(2). Now that the Department of Labor has clarified that medical conditions which do not usually qualify as "serious" could still be protected by the FMLA if they constitute "an incapacity of more than three consecutive calendar days that also involves qualifying treatment," this Court must reevaluate whether Thorson's situation meets those criteria.

Whether Thorson had a "Serious Health Condition"

The Court begins its analysis by focusing on whether Thorson's condition constituted an "incapacity of more than three consecutive calendar days that also involves qualifying treatment." See Opinion FMLA-86, Wage and Hour Manual (BNA), 99:3091, 99:3091-92 (Dec. 12, 1996). The Court will first examine how many consecutive days Thorson was absent. After Thorson left work on Thursday, February 3, 1994, she received doctor's orders not to return to work until Monday, February 7, 1994. She was thus absent from work for part of the day on Thursday, February 3, and all day Friday, February 4. When she came back to work on Monday, February 7, she still felt ill, so she left work again and returned to her doctor. After an examination, her doctor scheduled further tests and ordered her not to return to work until the following Monday, February 14. Thus after leaving work on Monday, February 7, Thorson missed work from Tuesday, February 8, through Friday, February 11. During those absences she underwent further testing, and on Friday, February 11, her tests results came back normal. She finally returned to work on Monday, February 14, and worked until she was fired for excessive absenteeism on Friday, February 18. See Thorson, 123 F.3d at 1140-41. Reviewing these facts, the Court finds that Thorson missed at least four consecutive calendar days during the week of February 7, 1994.

The Court next examines whether the treatment that Thorson received during those absences constituted "qualifying medical treatment." To this end, the evidence shows that a medical doctor examined her at least twice during the relevant time period that the doctor prescribed medication and ordered her not to return to work, and that she underwent further testing. The Court finds that these facts constitute the kind of "qualifying medical treatment" anticipated by the regulations, because "treatment" by a health care provider includes not only actual diagnoses, but also examinations to determine if a serious condition exists. See 29 C.F.R. § 825.114(b); see also Brief of the Secretary of Labor as Amicus Curiae, Doc. # 67, at 10. As the Secretary of Labor explained in her Amicus Curiae brief,

It is simply unreasonable to require employers and employees to determine, at the time the absence is requested, whether a particular condition is or may be diagnosed to be sufficiently "serious" to invoke FMLA coverage. ... Congress could hardly have intended to place employees at risk of losing their jobs if they must miss work for medical testing. Where an employee is absent from work for more than three consecutive days, pursuant to a doctor's orders, to allow for testing to determine the precise nature of the condition, FMLA coverage for that leave should not depend on the nature of the ultimate diagnosis.

Doc. # 67, at 11. Here, Thorson was absent from work for at least four consecutive days, pursuant to doctor's orders. During her absence, she saw a doctor at least twice, was prescribed medication, and underwent further testing. Based on these facts, Thorson's situation constituted a "serious medical condition" for purposes of the FMLA, even though her diagnosis did not ultimately turn out to be a condition that is typically considered to be "serious."⁴

Having found that...