United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3240

_____________ Katherine A. Thorson, * * Plaintiff-Appellant, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Gemini, Inc., * * Defendant-Appellee. *

_____________ Submitted: March 13, 1997 Filed: September 10, 1997

_____________ Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.
Kat herine A. Thorson appeals the district court's order granting summar y judgment in favor of the appellee, Gemini, Inc., on her claim under the Family an d Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (1994). Th e district court found that Thorson's illness did not constitute a "serious hea lth condition" and thus concluded that her termination for excessive absenteeism did not violate the FMLA. In light of2

a recent opinion letter from the Department of Labor clarifyingthe regulatory standards for what qualifies as a "serious health condition," we remand this case to the distric t court for further proceedings.
I. Katherine Thorson began working for Gemini, Inc., on September 9, 1 986, in the shipping and packing depa rtment at one of Gemini's manufacturing plants in Decorah, Iowa. At the time of her employment, Gemini had an attendance policy that limited an em ployee's tolerated absences to 5% of his or her scheduled hours; absences due t o illness were included in the calculation of an employ ee's absenteeism rate. In February of 1994, Thorson was discharged for excessive absenteeism. 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 wa s experiencing stomach problems. Dr. John LaCelle examined Thorson an d 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) an d antacids. On February 7, Thorson returned to work but again felt ill a nd 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 h e 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 test s Thorson underwent on February 11 c ame back normal, and Thorson returned to work on Feb ruary 14. Thorson worked until February 18, at which time she was fired fo r excessive absenteeism. O n March 9, 1994, after undergoing an upper gastrointestinal endoscopy, Dr. Joan Kepros conc luded that Thorson was suffering from a small hiatal hernia and mild antral gastritis and duodenitis.3 II.
The FMLA a

llows eligible employees to take up to a total of 12 workweeks of leave per year under various circumstances, including when an e mployee has a "serious healthcondition" that renders the employee unable to perform the functions of his or her job. 29 U.S.C. § 2612(a)(1)(D) (1994). The Department of Labor's regulation s implementi ng the FMLA forbid an employer from counting FMLA leave time unde r "no-fault" attendance policies. 29 C.F.R. § 825.220(c) (1996). Theissue in this appeal is whether Thorson's illness qualifies as a "serious health condition" such that he r absences could not be counted against her under the FMLA. As pertinent here, the FMLA d efines a "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves . . . continuin g trea tment by a health care provider." 29 U.S.C. § 2611(11)(B). The Department o f Labor's regulations explain that continuing treatment by a health care provider includes a period of incapacity (inability to work) of more than three consecutive days an d treat ment by a health care provider on two or more occasions. 29 C.F.R

. § 825.114(a)(2)(i). Thorson argues that her condition meets this definition. In grant ing Gemini's motion for summary judgment, the district court did no t focus on the regulatory criteria cited above but rather relied on another provisio n contained in the regulations which provides: Or dinarily, unless complications arise, the common cold, th e flu, ear ac hes, upset stomach , minor ulcers , headaches. . . etc., ar e 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) (emphasis added). The district court concluded that Thorson's illnesses were best described a s an upset stomach and a minor ulcer and reasoned that because such conditions are explicitly listed as examples that ordinarily do not meet theThis opinion letter reverses an earlier Department of Labor opinion letter , 1 Opinion F MLA-57, Wage and Hour Manual (BNA), 99:3055 (Apr. 7, 1995), whic h was cited in Gemini's brief. See Appellee's Br. at 15. 4 definition of "serious health condition," they cannot qualify as serious health conditions, even if they would otherwise meet the criteria for a "serious he alth condition" under the "con tinuing treatment by a health care provider" prong contained in 29 C.F.R

. § 825.114(a)(2)(i).
After the dist

rict court had entered its judgment in this case and the parties had filed their b riefs in this appeal, the Department of Labor issued an opinion letter i n which it discusses the examples provided in section 825.114(c). The letter states: Ordinarily, we anticipate that thes e health conditions would not meet the definition in 825.114(a)(2), as they would not b e expected to last for more than three consecutive calendar days and requ ire continuing treatment by a health care provider a s defined in the regulations. If, however, any of these conditions met the regulatory criteria for a serious health condition, e.g., an inc apacity of more than three consecutive calendar days tha t also involves qualifying treatment, then the absence would b e protected by the FMLA. . . . OpinionFMLA-86, Wage and Hour Manual (BNA), 99:3091, 99:3091-92 (Dec. 12, 1996). In light of this recent Department of Labor opinion letter, whose opinions we

1 of ten defer to, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843-44 (1984), we believe that it would be prudent to give the parties an addi tional chance to argue, and the district court another chance to determine , whether Thorson's condition meets the regulatory criteria for a serious healthOur decision to remand this case s hould in no way be read as indicating a view 2 as to the proper determination of this issue. 5 condition. We thus remand thi s case to the district court for such further proceedings

2 as the district court deems necessary. A true copy.

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