1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-3-1997

Victorelli v. Shadyside Hospital

Precedential or Non-Precedential:

Docket

96-3597

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Recommended Citation

"Victorelli v. Shadyside Hospital" (1997). 1997 Decisions. Paper 257.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/257
Filed November 3, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3597

KATHLEEN M. VICTORELLI,

 Appellant.

v.

SHADYSIDE HOSPITAL

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 95-cv-00300)

Argued on July 23, 1997

Before: SLOVITER, Chief Judge, and ROTH, Circuit Judge,

LUDWIG, District Judge1

(Opinion filed November 3, 1997)

James W. Carroll, Jr., Esquire

(Argued)

Tabakin, Carroll & Curtin

1430 Grant Building

Pittsburgh, PA 15219

Attorney for Appellant

_________________________________________________________________

1. Honorable Edmund V. Ludwig, United States District Court Judge for

the Eastern District of Pennsylvania, sitting by designation.

 David R. Johnson, Esquire (Argued)

 Thomson, Rhodes & Cowie, P.C.

 Two Chatham Center

 Suite 1010

 Pittsburgh, PA 15219-3499

 Attorney for Appellee

 Patricia A. Shiu, Esquire

 Catherine R. Albiston, Esquire

 Vicki Laden, Esquire

 The Employment Law Center
 A Project of the Legal Aid Society

 of San Francisco

 1663 Mission Street, Suite 400

 San Francisco, CA 94103

 Donna Lenhoff, Esquire

 Rebecca Epstein, Esquire

 Women's Legal Defense Fund

 1875 Connecitcut Avenue, N.W.

 Suite 710

 Washington, D.C. 20009

 Attorneys for Amici Curiae-

 Appellant

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.S 2601

("FMLA").2 For the reasons discussed below, we will vacate

_________________________________________________________________

2. On March 3, 1995, this case was referred by the district court to the

magistrate judge pursuant to 28 U.S.C. S 636(b)(1)(A) and (B), and Local

Rule 72.1.3. The magistrate judge filed a report and recommendation,

recommending that the defendant's motion for summary judgment be

granted and that the plaintiff's motion for partial summary judgment be

denied. On July 25, 1996, the report and recommendation was adopted

by the district court. All references herein to the district court refer

concurrently to the magistrate judge's report and recommendation and

to the district court's adoption of it.

 2

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

 3

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

 4

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. S 2617 (a)(2) and 28 U.S.C.

S 1331. We have jurisdiction over Victorelli's appeal

pursuant to 28 U.S.C. S 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.

Carribbean Cruise Lines, Ltd., 82 F.3d 69, 72 (3d Cir.

1996); Healy 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

_________________________________________________________________

3. The Pennsylvania Unemployment Compensation Board of Review,

which determines whether a person may receive benefits after being

discharged from employment, found that Victorelli had not participated

in any willful misconduct relative to her absences and had offered ample

justification for her sick leave usage, and as such her benefits could not

be denied. (Pennsylvania Unemployment Compensation Board of Review

Ref. Decision, Oct. 5, 1994.)

 5

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 interimfinal rule

governs in this case. See Bauer v. Varity Dayton-Walther

Corp., 1997 WL 369522, *4 (6th Cir. July 8, 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 thefinal 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. S 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. S 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.

S 2612(a)(1)(D). Employees who take leave pursuant to the

statute are entitled to return to the same or equivalent

 6

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. SS 2614(a)(1), 2615(a); 29

C.F.R. S 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 provisions of the FMLA, we disagree with the

district court's conclusion that as a matter of law the

condition was a "minor" one.

A. "Serious Health Condition":

The interim final rule defines a "serious health condition"

as an illness, injury, impairment, or physical or mental

condition that involves (1) a period of incapacity requiring

inpatient care, (2) a period of incapacity of more than three

calendar days, involving continuing treatment by a health

care provider, or:

 (3) Continuing treatment by (or under the

 supervision of) a health care provider for a chronic or

 long-term health condition that is incurable or so

 serious that, if not treated, would likely result in a

 period of incapacity of more than three calendar days;

 or for prenatal care.

29 C.F.R. S 825.114(a). Using the interimfinal rule, the

district court found subsection (3) applicable to Victorelli

because she was subject to "continuing treatment" by Dr.

Adoki. (R & R 10.) We agree. However, the district court

then found that Victorelli could not satisfy any of the
requirements of "continuing treatment" of S 825.114(b)(1) or

(2) except under what the court considered to be "an

expansive reading of the statute." For this reason, the court

determined that Victorelli did not have a "serious health

condition."

Under the interim final rule, "continuing treatment" is

defined as:

 (b) "Continuing treatment by a health care provider"

 means one or more of the following:

 7

 (1) The employee or family member in question is

 treated two or more times for the injury or illness

 by a health care provider. Normally this would

 require visits to the health care provider or to a

 nurse or physician's assistant under direct

 supervision of the health care provider.

 (2) The employee of family member is treated for

 the injury or illness two or more times by a

 provider of health care services (e.g., physical

 therapist) under orders of, or on referral by, a

 health care provider, or is treated for the injury or

 illness by a health care provider on at least one

 occasion which results in a regimen of continuing

 treatment under the supervision of the health care

 provider - for example, a course of medication or

 therapy - to resolve the health condition.

 (3) The employee or family member is under the

 continuing supervision of but, not necessarily being

 actively treated by a health care provider due to a

 serious long-term or chronic condition or disability

 which cannot be cured. Examples include persons

 with Alzheimer's, persons who have suffered a

 severe stroke, or persons in the terminal stages of

 a disease who may not be receiving active medical

 treatment.

29 C.F.R. S 825.114.

The district court reasoned that there are two plausible

readings of the term "serious health condition" under the

interim rule, one which encompasses Victorelli's condition

and one which does not. It therefore found the interim rule

ambiguous and appealed to the legislative history and the

final regulation for guidance. The district court interpreted

the final regulation and legislative history to suggest that

Victorelli's ulcer was the type of condition that Congress
intended "to be treated pursuant to an employer's sick

leave policy." (R & R 13). For that reason, the court found

SS (b)(1) and (b)(2) to be inapplicable. The district court

concluded that it is "clear" neither the Secretary of Labor

nor the Congress intended the FMLA to cover "minor

ulcers" like Victorelli's.

 8

We disagree. We conclude that the district court

construed the requirements of the interim final rule too

narrowly. Our construction of the interim final rule

convinces us that there is a material issue as to whether

Victorelli suffered from a "serious health condition."

Moreover, even if we consider the provisions of thefinal

regulation, we find that it neither states nor implies that

Victorelli's ulcer could not meet the requirements of a

"serious health condition."

1. Application of the Interim Final Rule:

Under the interim final rule, subsection (b)(1) requires

that a person be treated for an illness "two or more times

by a health care provider." Victorelli's condition satisfies

(b)(1) because she was treated by Dr. Adoki for her ulcer

two times prior to her termination, in addition to being

treated several times after her termination. Alternatively,

subsection (b)(2) requires that a person be treated for a

condition on at least one occasion and be subject to

"continuing treatment" by a health care provider thereafter.

Continuing treatment includes a course of medication or

therapy. Victorelli's condition satisfies (b)(2), because she

was treated by Dr. Adoki on at least one occasion and

subsequently received continuing treatment by medication

for her condition.

We find that this construction of subsections (b)(1) and

(b)(2) is neither improper nor unduly "expansive." In

addition, we note that the district court at no time

addressed whether subsection (b)(3) applied to Victorelli's

condition.

Subsection (b)(3) requires that the employee be under the

continuing supervision of, but not necessarily active

treatment by, a health care provider. The facts indicate that

Victorelli has been under the continuing supervision of a

health care provider, Dr. Adoki, since March 16, 1988. He

has seen her on numerous occasions for gastritis and for

symptoms of peptic ulcer disease, and he has prescribed

Zantac for her condition.

Subsection (b)(3) also requires that the health condition
be long-term, chronic or incurable. There is evidence that

 9

Victorelli's peptic ulcer disease appears to be a long-term or

chronic condition. Victorelli has suffered from this

condition on a recurring basis since November 1992. Dr.

Adoki has also stated that, while manageable with

medication and treatment, Victorelli's condition is

incurable. It should also be noted that, while Shadyside

Hospital contested the status of Victorelli's condition, it did

not attempt to obtain certification of her medical condition

in the form of second or third opinions, as is its right under

FMLA regulations. 29 C.F.R. S 825.307. Additionally, Janet

Lattanzio, Victorelli's supervisor, indicated that not only did

she not dispute the plaintiff's medical condition but she

took no steps to find out whether Victorelli indeed had a

peptic ulcer condition. In fact, at no time did Shadyside

present any testimony or evidence challenging the medical

adequacy of Victorelli's FMLA claim.

We believe the district court was correct in thefirst

instance when it suggested that the plaintiff couldfit within

the requirements of subsections (b)(1) and (b)(2) of the

interim rule. We do not agree, however, that it is"clear"

that such an interpretation would be an expansive reading

of the regulations. In addition, there is evidence in the

record to support a finding that Victorelli's condition

satisfies the requirements of subsection (b)(3). As such,

Victorelli has demonstrated a material issue of fact as to

whether she suffered from a "serious health condition."

For the above reasons, we conclude that it was

premature to award summary judgment to Shadyside on

Victorelli's FMLA claim.4

_________________________________________________________________

4. We note that courts in other circuits addressing similar FMLA claims

have found questionably serious health conditions sufficient to preclude

summary judgment. See Price v. City of Fort Wayne, 1997 WL 353605

(7th Cir. June 27, 1991) (finding that multiple diagnoses and

examinations for ailments only temporally related to one another

sufficient ground upon which to overturn summary judgment motion in

order to further develop record to determine whether serious health

condition existed); Rhoads v. Federal Deposit Insurance Corporation, 956

F. Supp. 1239, 1254 (D. Md. 1997) (finding that episodic periods of

incapacity involving the inability to breathe freely due to asthma and

concurrent migraine headaches were sufficient to preclude summary

 10
2. "Serious Health Condition"

 as viewed by the Final Rule:

As we mentioned earlier, the district court referred to the

final rule in concluding that Victorelli did not have a

"serious health condition." The district court found that

Victorelli had a "minor ulcer," citing language in the final

rule that precludes FMLA protection to "minor ulcers." 29

C.F.R. S 825.114. While the final rule does state that

"unless complications arise" "minor ulcers" are not covered

by the FMLA, the final rule fails to indicate what

"complications" distinguish a "serious" ulcer from a "minor"

one. 60 Fed. Reg. 2180 at 2195. Nevertheless, the

requirements of the final rule are helpful to our analysis.

The final rule, like the interim rule, requires either

inpatient care or continuing treatment. 29 C.F.R. S 825.114.

We find, as did the district court, that the applicable

provision is S 825.114(b), which states:

 (2) Continuing treatment by a health care provider. A

 serious health condition involving continuing treatment

 by a health care provider includes any one of the

 following:

 (i) A period of incapacity (i.e., inability to work,

 attend school or perform other regular daily

 activities due to the serious health condition,

 treatment therefor, or recovery therefrom) of more

 than three consecutive calendar days, and any

 subsequent treatment or period of incapacity

 relating to the same condition, that also involves:

 (A) Treatment two or more times by a health care

 provider, by a nurse or physician's assistant under

_________________________________________________________________

judgment as to whether serious health condition existed); McClain v.

Southwest Steel Co., Inc., 940 F. Supp. 295, 298-300 (N.D. Okl. 1996)

(finding summary judgment inappropriate where plaintiff attributed

absenteeism to chronic nausea, diarrhea, vomiting, severe headaches,

dizziness and/or lightheadedness as symptoms might constitute a

serious health problem); Hendry v. GTE North, Inc., 896 F. Supp. 816,

827-28 (N.D. Ind. 1995) (finding that plaintiff's absences which were

attributed to migraine headaches raise a material issue as to whether

she had a serious health condition).

 11

 direct supervision from a health care provider, or

 by a provider of health care services (e.g., a
 physical therapist) under orders of, or on referral

 by, a health care provider; or

 (B) Treatment by a health care provider on at

 least one occasion which results in a regimen of

 continuing treatment under the supervision of the

 health care provider.

 (ii) Any period of incapacity due to pregnancy, or

 for prenatal care.

 (iii) Any period of incapacity or treatment for such

 incapacity due to a chronic serious health

 condition. A chronic serious health condition is one

 which:

 (A) Requires periodic visits for treatment by a

 health care provider, or by a nurse or physicians

 assistant under direct supervision of a health care

 provider;

 (B) Continues over an extended period of time

 (including recurring episodes of a single underlying

 condition) and;

 (C) May cause episodic rather than a continuing

 period of incapacity (e.g., asthma, diabetes,

 epilepsy, etc.).

Victorelli's peptic ulcer disease does not meet the

requirements under (2)(i) or (2)(ii). There is, however,

evidence that Victorelli's peptic ulcer disease may satisfy

the test for a chronic serious health condition under (2)(iii).5

First, Victorelli's multiple visits to Dr. Adoki for her peptic

ulcer disease fit the language of (2)(iii)(A). Second, the three

year duration of Victorelli's condition constitutes an

extended period of time under (2)(iii)(B). Third, Victorelli's

periods of incapacity have been episodic rather than

continuous commensurate with (2)(iii)(C).6 

_________________________________________________________________

5. Coincidentally, subsection (2)(iii) is the corresponding provision to

section (b)(3) of the interim final rule.

6. That Victorelli's periods of incapacity have been episodic may be

attributable to her on-going course of medication.

 12

After comparing the interim and the final rules, we note

that the standard for "continuing treatment" has remained

unchanged. "The regulation also retains the concept that
continuing treatment includes either two visits to a health

care provider or one visit followed by continuing treatment

by under the supervision of a health care provider." 60 Fed.

Reg. 2180 at 2195. We also note that the regimen of

continuing treatment includes the taking of prescribed

medication, as Victorelli has done. Moreover, the

Department of Labor, in promulgating the final rule,

maintained the same standards for meeting the

requirements of a long-term, chronic condition."Therefore,

. . . as under the interim final rule, it is only necessary that

the patient be under the supervision of a health care

provider, rather than receiving active treatment." Id.

In response to the district court's reliance upon

legislative history for the proposition that "minor ulcers" do

not constitute a "serious health condition," we note that the

non-exclusive "laundry list" of applicable "serious"

conditions, compiled by Congress, was not included in the

final rule because the Department of Labor determined that

the existence of such a list might cause employers to make

incorrect decisions in applying the FMLA. "[T]heir inclusion

may lead employers to recognize only conditions on the list

or to second guess whether a condition is equally `serious,'

rather than apply the regulatory standard" (emphasis

added). 60 Fed. Reg. 2180 at 2195. We also note that many

of the conditions, which Congress had described as a

"serious health condition," are conditions that, as long as

they are being treated, do not impede a person's ability to

work.

Therefore, from our review of the final regulations, we

conclude that Congress did not intend to deny FMLA

protection to an employee simply because her doctor was

able to mitigate the frequency of her discomfort or

incapacity. The intent of the FMLA is not simply to protect

those whose condition causes continual incapacity. It is

also intended to protect those who are occasionally

incapacitated by an on-going medical problem.7

_________________________________________________________________

7. The Department recognizes that certain conditions, such as asthma

and diabetes, continue over an extended period of time (i.e. from several

 13

We find that there is sufficient evidence in the record so

that Victorelli may be able to meet the "regulatory

standard." A factfinder may be able reasonably to find that

Victorelli suffers from something more severe than a "minor

ulcer" and as such is entitled to FMLA protection. For this

reason, there is a material issue of fact whether Victorelli

suffered a "serious health condition" as interpreted under
both the interim and the final rule.

B. Cause for Termination

The FMLA prohibits employers from discriminating

against employees who request FMLA protected leave. 29

U.S.C. S 2615(a). Specifically, it prevents employers from

denying employment to employees once they return from an

FMLA leave period. Any such denial by the employer is

actionable under the FMLA. Id. The record indicates that,

had it not been for her July 29 absence, Victorelli would

not have been terminated.

 Q. Was there no other procedure in the works, no

 other unresolved problems, nothing pending that

 would have caused her termination on August 1st,

 1994, even if she had worked her complete shift

 July 29th, 1994?

 A. Not unless something would have happened while

 she was at work.

 Q. I understand that. But assuming she worked her

 shift without incident on July 29th, 1994, and she

 did work apparently without incident on July 30th

 and half of the shift or a little more than half the

_________________________________________________________________

months to many years) often without affecting day to day ability to work

or perform other activities but may cause episodic periods of incapacity

of less than three days. Although persons with such underlying

conditions generally visit a health-care provider periodically, when

subject to flare-up or other incapacitating episode, staying home and

self-treatment are often more effective than visiting the health care

provider (e.g., the asthma-sufferer who is advised to stay home and

inside due to the pollen count being too high). The definition of serious

health condition "in the rule has, therefore, been revised to include such

conditions, even if the individual episodes of incapacity are not of more

than three days duration." 60 Fed. Reg. 2180 at 2195.

 14

 shift on August 1st, would you have had that

 meeting. Is there any other reason that you would

 have had the meeting at twelve o'clock and

 terminated Kathy Victorelli?

 A. No.

(Lattanzio Aff., Appendix, p. 77).

On remand, the district court must determine whether
Victorelli's ulcer disease was a "serious health condition,"

whether her absence on July 29 was an FMLA leave period

as provided by 29 U.S.C. S 2612, and whether as a

consequence her employment termination violated the

FMLA.

IV.

As for Victorelli's motion for summary judgment, we

agree with the district court that Victorelli has not met her

burden of persuading us that she deserves to prevail as a

matter of law. The material issue of fact whether her ulcer

was a "serious health condition" also prevents a grant of

summary judgment in her favor. We will therefore affirm

the district court's denial of Victorelli's motion for partial

summary judgment.

V.

Because of the disputed issue of fact concerning the

seriousness of Victorelli's health condition, we conclude

that the district court erred in granting summary judgment

to defendant, Shadyside. We will, therefore, vacate that

judgment and remand this case for further proceedings

consistent with this opinion.

A True Copy:

Teste:

 Clerk of the United States Court of Appeals

 for the Third Circuit

 15