United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3240

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Katherine A. Thorson, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Gemini, Inc., *

*

Defendant-Appellee. *

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Submitted: March 13, 1997

 Filed: September 10, 1997 

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

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HANSEN, Circuit Judge.

Katherine A. Thorson appeals the district court's order granting summary

judgment in favor of the appellee, Gemini, Inc., on her claim under the Family and

Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (1994). The district court found

that Thorson's illness did not constitute a "serious health condition" and thus concluded

that her termination for excessive absenteeism did not violate the FMLA. In light of
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a recent opinion letter from the Department of Labor clarifying the regulatory standards

for what qualifies as a "serious health condition," we remand this case to the district

court for further proceedings.

I.

Katherine Thorson began working for Gemini, Inc., on September 9, 1986, in the

shipping and packing department at one of Gemini's manufacturing plants in Decorah,

Iowa. At the time of her employment, Gemini had an attendance policy that limited an

employee's tolerated absences to 5% of his or her scheduled hours; absences due to

illness were included in the calculation of an employee'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 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 gastritis and duodenitis. 
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II.

The 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) (1994). 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) (1996). The issue in this appeal

is whether Thorson's illness qualifies as a "serious health condition" such that her

absences could not be counted against her under the FMLA.

As pertinent here, 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 explain that continuing treatment by a health care provider includes

a period of incapacity (inability to work) of more than three consecutive days and

treatment 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 granting Gemini's motion for summary judgment, the district court did not

focus on the regulatory criteria cited above but rather relied on another provision

contained in the regulations which provides:

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) (emphasis added). The district court concluded that Thorson's

illnesses were best described as an upset stomach and a minor ulcer and reasoned that

because such conditions are explicitly listed as examples that ordinarily do not meet the
This opinion letter reverses an earlier Department of Labor opinion letter,

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Opinion FMLA-57, Wage and Hour Manual (BNA), 99:3055 (Apr. 7, 1995), which

was cited in Gemini's brief. See Appellee's Br. at 15. 

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definition of "serious health condition," they cannot qualify as serious health conditions,

even if they would otherwise meet the criteria for a "serious health condition" under the

"continuing treatment by a health care provider" prong contained in 29 C.F.R.

§ 825.114(a)(2)(i). 

After the district court had entered its judgment in this case and the parties had

filed their briefs in this appeal, the Department of Labor issued an opinion letter in

which it discusses the examples provided in section 825.114(c). The letter states:

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 the regulations. If, however, any of these conditions

met the regulatory 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 light of this recent Department of Labor opinion letter, whose opinions we 1

often 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 additional chance to argue, and the district court another chance to determine,

whether Thorson's condition meets the regulatory criteria for a serious health 
Our decision to remand this case should in no way be read as indicating a view 2

as to the proper determination of this issue.

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condition. We thus remand this 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.