                          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.

       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
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



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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).1 In light of this recent Department of Labor opinion letter, whose opinions we
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




      1
       This opinion letter reverses an earlier Department of Labor opinion letter,
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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condition.2 We thus remand this case to the district court for such further proceedings
as the district court deems necessary.

      A true copy.


             Attest:


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




      2
        Our decision to remand this case should in no way be read as indicating a view
as to the proper determination of this issue.

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