Victorelli v. Shadyside Hosp.

• Decision Date: 03 November 1997
• Docket Number: No. 96-3597,96-3597
• Citation: 128 F.3d 184
• Parties: 134 Lab.Cas. P 33,605, 21 Employee Benefits Cas. 2232, 4 Wage & Hour Cas.2d (BNA) 321, 11 NDLR P 263 Kathleen M. VICTORELLI, Appellant. v. SHADYSIDE HOSPITAL
• Court: U.S. Court of Appeals — Third Circuit

Page 184

128 F.3d 184

134 Lab.Cas. P 33,605, 21 Employee Benefits

Cas. 2232,

4 Wage & Hour Cas.2d (BNA) 321, 11 NDLR P 263

Kathleen M. VICTORELLI, Appellant. v. SHADYSIDE HOSPITAL

No. 96-3597.

United States Court of Appeals, Third Circuit.

Argued on July 23, 1997.

Decided Nov. 3, 1997.

James W. Carroll, Jr. (Argued), Tabakin, Carroll & Curtin, Pittsburgh, PA, for Appellant.

David R. Johnson (Argued), Thomson, Rhodes & Cowie, P.C., Pittsburgh, PA, for Appellee.

Patricia A. Shiu, Catherine R. Albiston, Vicki Laden, The Employment Law Center, A Project of the Legal Aid Society of San Francisco, San Francisco, CA, Donna Lenhoff, Rebecca Epstein, Women's Legal Defense Fund, Washington, DC, for Amici Curiae-Appellant.

Before: SLOVITER, Chief Judge, and ROTH, Circuit Judge, LUDWIG, District Judge. ¹

OPINION OF THE COURT

ROTH, Circuit Judge.

Kathleen M. Victorelli appeals an award of summary judgment to her former employer, Shadyside Hospital ("Shadyside"), on her claim that Shadyside violated the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 ("FMLA"). ² For the reasons discussed below, we will vacate the grant of summary judgment and remand this case to the district court for further proceedings.

I.

From June 17, 1989, until August 1, 1994, Kathleen M. Victorelli was employed as a Central Service Technician by Shadyside Hospital in Pittsburgh, Pennsylvania. She was terminated from her employment with Shadyside following a request for sick leave on July 29, 1994. According to Victorelli's deposition, on the preceding evening she experienced stomach upset with vomiting and diarrhea. At 4:30 a.m. on the 29th, Victorelli called the hospital and left a voice mail message informing her supervisor that she would be unable to work because of her stomach ailment. Victorelli called again at 9:00 a.m. to inform another supervisor, Janet Lattanzio, of her inability to work that day. Lattanzio was unable to speak with Victorelli at that time and suggested she call again at approximately 1:30 p.m. In the interim, Victorelli spoke with her doctor, I.N. Adoki, M.D. Dr. Adoki's opinion was that Victorelli was suffering from a "flare-up" of her peptic ulcer disease. He recommended that she not work that day. Victorelli spoke with Lattanzio again at 1:30 p.m. and said she was having stomach discomfort because of her peptic ulcer condition. Victorelli also told Lattanzio that she was scheduled to meet with her doctor about her condition on August 2 and that she would be in to work on July 30. Lattanzio responded that they would discuss Victorelli's absence on Monday, August 1.

As a result of Victorelli's July 29 "call-off " from work, Shadyside decided to terminate her employment. Lattanzio made this decision after consultation with another hospital official on the morning of the 29th but did not communicate it to Victorelli until August 1. Victorelli did report to work as scheduled on July 30 and August 1. On August 1, Victorelli was informed that she had been terminated pursuant to the hospital's progressive disciplinary policy. Lattanzio told Victorelli that she was being discharged because of previous attendance problems and what was considered to be an abuse of sick time. Victorelli had had a history of tardiness and absences due to sickness, some in excess of her accrued sick time. She had been warned about this on numerous occasions.

Throughout her tenure with Shadyside, Victorelli was given high marks in her job evaluations. She had also, however, received written warnings for her tardiness and absenteeism. In March of 1993, Victorelli was counseled by her supervisor regarding her absenteeism and an apparent pattern of "Monday-Friday" absences due to sickness. As part of Shadyside's progressive disciplinary program, Victorelli was given her first verbal warning regarding her attendance in April of 1993. On May 2, 1994, Victorelli received a warning for tardiness. On May 18, she was given another written warning about her absences. The May 18 warning stated that any subsequent attendance violations would result in her dismissal.

Dr. Adoki first saw Victorelli on March 16, 1988. In March of 1990, he began treating her for recurring stomach pain, diagnosed as gastritis. He saw her again on August 13, 1992, because of stomach pain and additional symptoms of nausea and vomiting. He then prescribed Zantac for her condition. She continues to take Zantac to the present day. On November 18, 1992, Dr. Adoki diagnosed peptic ulcer disease. He has treated Victorelli on June 23, 1993, August 2, 1994, May 30, 1995, and November 16, 1995, because of peptic ulcer disease problems that could not be controlled by Zantac. Dr. Adoki has also spoken with Victorelli on numerous occasions regarding her condition. He has found that Victorelli's peptic ulcer disease is incurable although it can be generally controlled by medication. He has determined that, if left untreated, Victorelli's condition would cause a period of incapacity in excess of three days. He has also found that, while treated, Victorelli's condition has occasionally prevented her from working, including on July 29, 1994.

Over the course of her employment, Victorelli has informed her employer that she suffers from peptic ulcer disease. She also has had recurring cases of sinusitus and inner ear infections. While Shadyside knew of these various medical ailments, at no time did it seek medical documentation of them. Upon request, Victorelli has, except for one occasion, provided a doctor's excuse for her illnesses. In her deposition testimony, Janet Lattanzio, Victorelli's supervisor, stated that she believed Victorelli was sick when she reported in as such. Lattanzio also testified that she did not believe that Victorelli reported off sick when she was not indeed sick. ³

Victorelli contends that Shadyside Hospital violated the FMLA when it terminated her employment because of her absence on July 29, 1994. The district court granted Shadyside's motion for summary judgment on the grounds that Victorelli failed to establish she had a "serious health condition" pursuant to FMLA requirements; for that reason she was not protected by the FMLA during this absence.

The district court exercised jurisdiction over Victorelli's case pursuant to 29 U.S.C. § 2617(a)(2) and 28 U.S.C. § 1331. We have jurisdiction over Victorelli's appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a grant of summary judgment by the district court and apply the same test that the district court should have applied. A. Marzano v. Computer Science Corp. Inc., CSC, 91 F.3d 497, 501 (3d Cir.1996) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994)); Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 72 (3d Cir.1996); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 130 (3d Cir.1996). A district court's interpretation of a federal regulation is a question of law subject to plenary review. Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.1995); ADAPT v. Skinner, 881 F.2d 1184, 1191 n. 6 (3d Cir.1989).

II.

The district court evaluated Victorelli's claims under the FMLA based upon an interim final rule, promulgated by the Department of Labor in June 1993, effective August 5, 1993, which was still in effect on July 29, 1994. The parties do not dispute that the interim final rule applies, and we agree. The course of events and applicable facts in the instant case occurred before the final regulations were adopted and therefore we find that the interim final rule governs in this case. See Bauer v. Varity Dayton-Walther Corp., 118 F.3d 1109, 1110 (6th Cir.1997); Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 n. 2 (5th Cir.1995) (finding that a dispute occurring before the release of the final regulations is governed by the interim regulations.) However, we will refer to the final rule promulgated in January 1995, effective February 6, 1995, as an aid to interpret the interim final rule. See United States Steel Corporation v. Oravetz, 686 F.2d 197, 201 (3d Cir.1982) (finding that a claim filed before the effective date of the final rules should still be interpreted by the final rules to the extent it is appropriate.)

III.

Shadyside was awarded summary judgment because the district court determined that Victorelli did not suffer a "serious health condition" under the provisions of the FMLA. We begin by reviewing the protective sphere of the FMLA as applied to Victorelli to determine (1) whether Victorelli has a "serious health condition" protected by the FMLA, and (2) whether Victorelli was terminated for taking FMLA protected leave. In doing so, we will examine"serious health condition" as defined under both the controlling interim final rule and the final rule.

The FMLA was enacted to provide leave for workers whose personal or medical circumstances necessitate leave in excess of what their employers are willing or able to provide. 29 C.F.R. § 825.101. "Eligible" employees of a covered employer are allowed to take up to 12 weeks of leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition. 29 C.F.R. § 825.100(a). More specifically, the FMLA applies when an employee's own serious health condition makes the employee unable to perform the functions of his or her job. 29 U.S.C. § 2612(a)(1)(D). Employees who take leave pursuant to the statute are entitled to return to the same or equivalent position and benefits as they had had previously. An employer who denies an employee these entitlements is in violation of the FMLA. 29 U.S.C. §§ 2614(a)(1), 2615(a); 29 C.F.R. § 825.100(c).

The district court found Victorelli to be an employee otherwise "eligible" for protection under the FMLA. We agree. The district court concluded, however, that Victorelli's condition was a "minor" one, not intended to be protected by the FMLA. (R & R 10-14) After our review of the applicable...