United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1248

___________

Rose M. Rankin, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the

* District of Minnesota.

Seagate Technologies, Inc., *

*

Appellee. *

___________

Submitted: October 19, 2000

Filed: April 24, 2001

___________

Before WOLLMAN, Chief Judge, BEAM, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

WOLLMAN, Chief Judge.

Rose Rankin appeals from the district court’s adverse entry of summary

judgment on her claim under the Family Medical Leave Act of 1993, 29 U.S.C. §§

2601-2654 (1994) (FMLA or the Act), and her common law claim for negligent

infliction of emotional distress. We reverse and remand. 
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I.

 We recite the facts in the light most favorable to Rankin, the non-moving party

below. Rankin, a senior administrator at Seagate Technologies, Inc., became ill while

at work on September 29, 1997. On September 30, her condition worsened to the point

that she was vomiting in a work bathroom. She did not report for work on October 1

or on October 2, when she visited her health care provider for a regularly scheduled

appointment. Although Rankin was not prescribed any medication or treatment related

to her illness during this appointment, she informally discussed her condition with

nurses at the clinic and was advised to treat her symptoms with over-the-counter

medication. Rankin did not work on Friday, October 3, or on October 6, 7, or 8. 

On Wednesday, October 8, Rankin consulted with her nurse practitioner, Lynn

Sedlack. Sedlack’s notes indicate that Rankin complained of vomiting, coughing,

congestion, and sleeplessness. After an examination, Sedlack concluded that Rankin

was suffering from a viral illness and prescribed Tessalon Perles (a cough suppressant),

Robitussin with codeine (a nighttime cough suppressant), Duratuss (a decongestant),

and Proventil (an inhaler). Sedlack also furnished Rankin with a note that stated “may

return to work on 10/13.” This note was provided to Seagate, on the company’s

request, on October 15. 

Rankin did not work from October 9 through October 16. On Wednesday,

October 15, Rankin informed Seagate that she had scheduled another appointment with

Sedlack for October 16. At this appointment, Rankin’s prescription for Robitussin was

renewed, and she was prescribed Nebulizer with Albuterol (an inhaler), Z-Pack (an

antibiotic), and Prednizone (an anti-inflammatory). Sedlack also provided Rankin with

a note indicating that she “should return to work on 10/20/97,” and instructed her to

schedule another appointment on October 18 if her condition had not improved.

Rankin had additional appointments with Sedlack on October 22 and 24. Although
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Sedlack noted some improvement in Rankin’s condition between these two visits, she

provided Rankin with a note stating “may return to work on 10/27 or 10/28.” 

Rankin contends that she notified Seagate at the onset of her illness and

continued to update the company regarding her condition and the reason for her

absences from work. Nevertheless, Seagate fired Rankin on October 16, 1997, citing

excessive absenteeism. Although the parties dispute the details of Rankin’s

employment history with the company, Rankin concedes that she had received two

written attendance warnings pursuant to Seagate’s progressive discipline policy, and

that she was notified in a September 26, 1997, performance evaluation that further

absences could result in the termination of her employment. 

 

Rankin thereafter filed suit in district court, alleging violations of FMLA and

negligent infliction of emotional distress. The district court granted Seagate’s motion

for summary judgment, concluding that Rankin failed to produce sufficient evidence

indicating that she suffered from a “serious health condition” as defined by the Act.

We review the district court’s decision to grant summary judgment de novo, and we

will affirm only if there are no genuine issues of material fact. Thorson v. Gemini, Inc.,

205 F. 3d 370, 375-76 (8th Cir. 2000); see Fed. R. Civ. P. 56(c).

II.

FMLA allows eligible employees to take up to a total of 12 workweeks of leave

per year under various circumstances, including when an employee has a “serious

health condition” that renders the employee unable to perform the functions of his or

her job. 29 U.S.C. § 2612(a)(1)(D). The definition of a “serious health condition”

includes 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

regulations promulgated by the Department of Labor pursuant to the Act further state:
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(2) Continuing treatment by a health care provider.

A serious health condition involving continuing treatment by a health care

provider includes any one or more 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 direct supervision of a health care provider, or

by a provider of health care services (e.g., 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.

29 C.F.R. § 825.114(a)(2). 

We have previously observed that although conditions like the common cold or

the flu will not routinely satisfy the requirements of a “serious health condition,”

absences resulting from such illnesses are protected under FMLA when the regulatory

tests are met. Thorson, 205 F.3d at 379. Where absences are not attributable to a

“serious health condition,” however, FMLA is not implicated and does not protect an

employee against disciplinary action based upon such absences. Bailey v. Amsted

Indus., Inc., 172 F.3d 1041, 1045-46 (8th Cir. 1999). 

Initially, we reject Seagate’s contention that this case should be analyzed under

the familiar McDonnell Douglas burden-shifting scheme. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Although we acknowledge that some courts

have utilized a burden-shifting analysis in addressing substantive claims under FMLA,

see, e.g., Beno v. United Telephone Co. of Florida, 969 F. Supp. 723, 724-25 (M.D.

Fla. 1997), Kaylor v. Fannin Reg’l Hosp., Inc., 946 F. Supp 988, 1000-01 (N.D. Ga.

1996), Oswalt v. Sara Lee Corp., 889 F. Supp 253, 259 (N.D. Miss. 1995), we have
1Our analysis in Thorson involved interim regulations promulgated by the

Department of Labor pursuant to the Act, whereas this case involves the final

regulations. As we observed in Thorson, however, the final regulations “expound upon

and rearrange some of the language that appeared in the interim regulations, but they

do not change the substance of the rule.” Thorson, 205 F.3d at 377. Accordingly, our

analysis in Thorson applies here. 

2We leave open the question of whether a burden-shifting analysis is appropriate

for claims under 29 U.S.C. § 2615(b), the anti-retaliation provision of FMLA. Cf.

Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st. Cir. 1998) (observing

that FMLA creates substantive rights and prohibits discrimination based on the exercise

of those rights). 

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previously observed that a “‘serious health condition’ should be defined by an objective

test that could be applied consistently based on the facts of each case.”1 Thorson, 205

F.3d at 376. We decline to apply the McDonnell Douglas analysis in this setting

because, as the Seventh Circuit has observed, “[a]lthough a burden-shifting approach

can be useful in discrimination cases as a heuristic, claims under the FMLA do not

depend on discrimination.” Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th

Cir. 1997). Without belaboring the point, we agree with our sister circuit’s conclusion

that “[a]pplying rules designed for anti-discrimination laws to statutes creating

substantive entitlements is apt to confuse.” Id. Accordingly, we proceed as we have

in the past to “consider the factors comprising the objective test and the evidence in the

record of this case to determine if the District Court was correct in granting summary

judgment.”2 Thorson, 205 F.3d at 377. 

To meet the requirements of the objective test, Rankin was required to prove (1)

that she had a “period of incapacity requiring absence from work,” (2) that this period

of incapacity exceeded three days, and (3) that she received “continuing treatment by

. . . a health care provider” within the period. Thorson, 205 F.3d at 377; Martyszenko

v. Safeway, Inc., 120 F.3d 120, 122-23 (8th Cir. 1997) (incapacity required to trigger

FMLA protection). Summary judgment was proper if Rankin failed to create a genuine
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issue of material fact as to any of these elements. See Wilking v. County of Ramsey,

153 F. 3d 869, 873 (8th Cir. 1998).

The district court concluded that Rankin failed to produce sufficient evidence

demonstrating that she was incapacitated prior to her October 8 appointment with

Sedlack. The court concluded that the only evidence indicating incapacity during this

time period was Rankin’s own affidavit that she was “too sick to work” and that the

affidavit alone was insufficient to preclude summary judgment. We respectfully

disagree. Although we agree that Rankin did not produce an overabundance of

evidence, we believe that her affidavit testimony that she was “too sick to work,” her

testimony regarding her conversation with nurses about her condition at her October

2 appointment, and her medical records from the October 8 appointment that showed

that she claimed that she had been suffering from the same symptoms (including

sleeplessness and fatigue) for a week were, in sum, sufficient to create a genuine issue

of material fact regarding her incapacity prior to October 8, 1997. See Marchisheck

v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir. 1999) (holding that a plaintiff’s

declaration that “I just did not and could not do anything for four or five days . . .”

creates “a disputed issue of fact and precludes summary judgment on the issue of

‘incapacity’”).

We also disagree with the district court’s analysis of the “continuing treatment”

aspect of Rankin’s FMLA claim. The court concluded that because Sedlack did not

prescribe an antibiotic for Rankin at the October 8 appointment, Rankin could not

demonstrate that she received “continuing treatment” between October 8 and October

15 or at anytime prior to her termination. Although the district court conceded that

Rankin could demonstrate “continuing treatment” as of her October 16 appointment,

it found this fact to be irrelevant because Rankin had already been fired. Under our

reading of the relevant regulation, however, FMLA protection applies to periods of

incapacity related to a serious health condition and “any subsequent treatment or period

of incapacity relating to the same condition” that also involves two visits to a health
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care provider or one visit followed by a regimen of continuing treatment. 29 C.F.R. §

825.114(a)(2). Thus, the fact that an employee is “sufficiently ill to see a physician two

times in a period of just a few days” is all that FMLA requires for “continuing

treatment.” Thorson, 205 F.3d at 379. Rankin clearly fulfilled this requirement.

Accordingly, we reverse the district court’s grant of summary judgment on

Rankin’s FMLA claim and remand for further proceedings not inconsistent with this

opinion. Likewise, because the district court granted Seagate’s motion for summary

judgment on Rankin’s common law claim for negligent infliction of emotional distress

based solely on its conclusion that there was no FMLA violation, we reverse the

summary judgment on that claim and remand the claim for further consideration.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.