                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2382
                                   ___________

Juanita Caldwell,                        *
                                         *
             Plaintiff - Appellant,      *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Arkansas.
Holland of Texas, Incorporated, doing *
business as Kentucky Fried Chicken,      *
                                         *
             Defendant - Appellee.       *
                                    ___________

                             Submitted: January 13, 2000
                                 Filed: March 30, 2000
                                  ___________

Before RICHARD S. ARNOLD, BRIGHT and HANSEN, Circuit Judges.
                           ___________

BRIGHT, Circuit Judge.

       Juanita Caldwell ("Caldwell") appeals the district court's grant of summary
judgment to her former employer, Holland of Texas, Inc. ("Holland"), on her claim that
Holland terminated her employment in violation of the Family and Medical Leave Act
("FMLA"), 29 U.S.C. §§ 2611-2612. The district court determined as a legal matter
that Caldwell's son did not suffer a "serious health condition" under the FMLA, and
therefore, the FMLA does not give her any benefits. We determine that Caldwell's
evidence showing that her three-year-old son sustained a sudden onset of an ear
infection — a condition that required immediate attention by a physician, a series of
antibiotic treatments, and surgery — is sufficient to present a fact question regarding
whether Caldwell's son's illness and disability qualifies as a "serious health condition"
entitling the employee to FMLA leave. Accordingly, we reverse and remand.

I.     BACKGROUND

       Caldwell is a single mother, working to support herself and her three-year-old
son, Kejuan. Before she was summarily fired, Caldwell worked for Holland, which
owns and operates several Kentucky Fried Chicken restaurants in Texarkana, Arkansas.
Caldwell worked for Holland for three years, and during that time, she developed an
excellent record working at the Kentucky Fried Chicken on Hickory Street.

       On Saturday, June 7, 1997,1 Kejuan awoke with a high fever, pain in his ears,
and congestion. Caldwell promptly notified Assistant Manager Loyce, prior to the start
of her morning shift, that she would be absent because Kejuan required immediate
medical attention. Loyce gave Caldwell permission to miss her shift. That morning,
a doctor at an emergency clinic diagnosed Kejuan as having an acute ear infection.
During this visit, the doctor prescribed a ten-day course of antibiotics and a two-day
decongestant for Kejuan. At the same time, the treating physician informed Caldwell
that her son's condition probably would require surgery if her son was to avoid




       1
         There is a slight discrepancy in the record regarding the date of Kejuan’s first
visit to treat his ear infection: the medical record of his first visit shows a date of June
6, 1997 instead of June 7, 1997, the date presented by appellant. We nevertheless rely
on the affidavit of the plaintiff for purposes of summary judgment. See Pace v. City of
Des Moines, No. 99-1423, 2000 WL 31713 at *1 (8th Cir. Jan. 13, 2000) (“Summary
judgment is proper when the record, viewed in the light most favorable to the
nonmoving party and giving that party the benefit of all reasonable inferences, shows
that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.”).

                                           –2–
permanent hearing loss, and he recommended that Caldwell schedule a follow-up
examination with her son's regular pediatrician, Dr. Mark Wright.

       Later that Saturday night, upon the request of an assistant manager, Caldwell
worked an evening shift at one of Holland's other restaurant locations. While Caldwell
was working, her elderly mother cared for her son and administered his medications.
Caldwell did not have any shifts on Sunday. When Caldwell returned to her regular
work on Monday morning, June 9, 1997, Mark Monholland, a manager at the Hickory
Street restaurant, abruptly fired Caldwell without discussing her absence of June 7,
1997.

       The supplemental affidavit of Ms. Caldwell, Kejuan’s mother, asserts that
Kejuan suffered “incapacity” for more than three consecutive days following his trip
to the clinic and recites that Kejuan did not participate in his “normal activities,”
remained inside the house, and was kept in bed as much as possible. He remained
under the care of either his mother or grandmother who administered prescribed
medications during “this entire time.” During a follow-up visit on July 1, 1997, Dr.
Wright prescribed a second ten-day course of antibiotics for Kejuan in an attempt to
treat his “persistent ear infection.” On July 17, 1997, Kejuan had surgery to remove
his adenoids and tonsils and to place tubes in his ears. Following surgery, Kejuan
received another course of antibiotics and orders to remain in bed for one week. His
mother and grandmother kept him inside following the operation and restricted him
from engaging in normal activities.

       Caldwell sued and argued that her termination violated the FMLA. On Holland’s
motion for summary judgment, the district court dismissed the suit because it concluded
that, although the Act generally protects employees when their immediate family
members have a "serious health condition," Kejuan’s condition did not qualify.
Caldwell appeals. We reverse and remand.


                                         –3–
II.   DISCUSSION

       The FMLA allows eligible employees to take up to a total of twelve workweeks
of leave per year for, among other things, "serious health conditions" that afflict their
immediate family members. See 29 U.S.C. § 2612(a)(1)(C) ("to care for the spouse,
or son, daughter, or parent, of the employee . . . [who] has a serious health condition").
The employee must show that her family member suffered a serious health condition
and that her absence was attributable to the family member’s serious health condition.
See Frazier v. Iowa Beef Processors, Inc., Nos. 99-1630, 99-1632, 2000 WL 49085,
at *4 (8th Cir. Jan. 19, 2000).

       A "serious health condition" occurs, under the regulations, when the family
member suffers an “illness, injury, impairment, or physical or mental condition” that
requires "inpatient care" or "continuing treatment" by a health care provider. See 29
C.F.R. § 825.114(a). Here, the parties agree that Kejuan never received inpatient care.
The pertinent issue is whether Kejuan received continuing treatment. A family member
receives continuing treatment if the person experiences "[a] period of incapacity . . .
of more than three consecutive calendar days" and then receives subsequent treatment,
or experiences further incapacity relating to, the same condition. 29 C.F.R. §
825.114(a)(2)(i). The subsequent treatment must include, either “[t]reatment two or
more times by a health care provider . . .,” or "[t]reatment 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)(i)(A)-(B).2


      2
          The relevant portion of 29 C.F.R. § 825.114(a)(2) reads in its entirety:

         (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

                                           –4–
       The applicability of the FMLA, here, turns on whether Caldwell can prove a
two-pronged inquiry: first, she must show that Kejuan suffered "a period of incapacity
of more than three consecutive calendar days"; second, she must show that Kejuan
subsequently received continued, supervised treatment relating to the same condition.
See Thorson v. Gemini, Inc., Nos. 99-1656, 99-2059, 2000 WL 236404, at *2 (8th Cir.
March 3, 2000). The district court found, when applying the regulations, that Caldwell
"has not provided any proof whatsoever of Kejuan’s incapacity for the three days
following his June 7 examination." J.A. at 95. Therefore, the district court determined
that Caldwell failed to raise a material issue of fact regarding the first prong of her case,
namely that Kejuan was not incapacitated for three consecutive days following
Caldwell’s absence from work on June 7, 1997. Caldwell argues that this finding was
error, and we agree. Caldwell has presented sufficient evidence to raise a question of
fact as to whether Kejuan’s ear infection incapacitated him for more than three days
and whether Kejuan then received subsequent treatment for his condition.

      In assessing the first prong of Caldwell’s case, we note at the outset that the
question of what constitutes incapacity of a three-year-old raises an issue not directly
addressed by the regulations. The regulations state that incapacity may be determined


       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.

                                            –5–
based on an individual’s “inability to work, attend school or perform other regular daily
activities due to the serious health condition, treatment therefor, or recovery
therefrom.” See 29 C.F.R. § 825.114(a)(2)(i). Because most three-year-old children
do not work or attend school, the standard offered by the regulations is an insufficient
guide. The fact finder must determine whether the child’s illness demonstrably affected
his normal activity. In making this determination, the fact finder may consider a variety
of factors, including but not limited to: whether the child participated in his daily
routines or was particularly difficult to care for during that period, and whether a
daycare facility would have allowed a child with Kejuan’s illness to attend its sessions.

        Caldwell avers that Kejuan’s ear infection, which was severe enough to warrant
emergency treatment, required constant care for a period of more than three days. She
states in her supplemental affidavit that Kejuan was incapacitated beginning Saturday,
June 7, 1997, for more than three consecutive days. She further states:

      He [Kejuan] remained inside the house and was kept in bed as much as
      possible. He did not participate in any of his normal activities. He was
      under the constant care of me (his mother) and his grandmother, and both
      the prescribed medications and a fever reducer were administered to him
      during this entire time.

J.A. at 89.

       In addition to Caldwell’s affidavit, the medical records show that Kejuan’s ear
infection was a continuing, persistent condition that could only be treated by surgery.
Kejuan’s period of incapacity, therefore, may be measured over the entire time during
which he was suffering from this illness and being treated for it. We note that Kejuan
was treated for his condition for ten days following his first visit to the emergency




                                          –6–
clinic.3 The medical records state that the condition did not improve, and as a result,
Dr. Wright, his regular physician, prescribed another ten-day course of antibiotics.4
Despite the two medical treatments, Kejuan’s condition continued to persist until Dr.
Trone, a surgical specialist, performed surgery to remove his tonsils and adenoids on
July 17, 1997. This entire period, from June 7 - July 17, 1997, may constitute Kejuan’s
period of incapacity if his illness and these various treatments disrupted his basic daily
routines, and if, as the record suggests, his ongoing treatment was not successfully
alleviating his condition of disability.

       The ten-day period beginning on June 7, 1997 could constitute Kejuan’s period
of incapacity. As we have noted, his mother’s supplemental affidavit refers to constant




      3
      Dr. Deskin was the treating physician during this first emergency visit. His
medical notes from this first visit state:

      IMPRESSION:
      Adenoidal hypertrophy and bilateral otitis media [inflammation of the
      middle ear].

      PLAN:
      Treat with Neo-Synephrine nose drops q.i.d. for 2 days to try to shrink the
      adenoidal tissue. Cefzil 250 b.i.d. [two times per day] for 10 days.
      Recheck with Dr. Wright his P.C.P. doctor in about 3 weeks for recheck
      of his ears and further adenoid evaluation.

J.A. at 59-60.
      4
         Dr. Wright’s notes on July 1, 1997 state: “IMPRESSION: Persistent serous
otitis, probably due to adenoid hypertrophy. . . . PLAN: Amoxil 250 mg. t.i.d. [three
times per day] for ten days for persistent ear infection and refer to Dr. Trone for
probable T&A.” J.A. at 60.

                                           –7–
care and administration of prescribed medications during “this entire time.”5 The
affidavit also refers to the doctor’s report which stated that on July 1 Kejuan’s
condition “was not greatly improved.” All of this evidence indicates a continuing
period of incapacity which may have lasted for ten days.

       Even if Kejuan did not sustain “incapacity” under the regulations prior to his
surgery, the record clearly shows that the inflammation and infection in his ears resulted
in a period of incapacity that lasted more than three days once he had the tonsillectomy
and adenoidectomy. His mother’s affidavit states:

       [T]he doctor stated that [after the operation] Kejuan was to be kept in bed
       for one (1) week. Kejuan stayed in bed two or three days but was kept
       inside the house and did not participate in his normal activities for a week
       following his surgery. During this period of time, he was prescribed his
       third round of antibiotics.

J.A. at 90. This surgery was the necessary and only treatment for Kejuan’s condition.
Although Kejuan’s condition did not require immediate surgery, after the first round of
antibiotics, the doctors determined that the condition could be cured only by surgical
operation.

       Both the First and the Seventh Circuits have recognized that medical diseases do
not afflict people in methodical and predictable ways: certain serious diseases can
elude diagnosis, change in severity, and have cumulative effects on the body over time.
See, e.g., Hodgens v. General Dynamics Corp., 144 F.3d 151, 163 (1st Cir. 1998);
Price v. City of Fort Wayne, 117 F.3d 1022, 1024-25 (7th Cir. 1997). These
unpredictable characteristics of illness can result in an individual’s inability to care for
himself and perform his daily tasks, after experiencing a series of less debilitating


       5
       The phrase “this entire time” relates to the mother’s claim that Kejuan was
incapacitated “for more than three (3) consecutive days.”

                                           –8–
symptoms. In Hodgens, the First Circuit recognized the possibility of FMLA coverage
for “intermittent leave”:

       [O]ne reason for taking “intermittent leave” under the FMLA would be
       to visit the doctor for purposes of diagnosis and treatment, even if the
       employee does not take leave for the periods in between such visits. It
       would seem that Congress intended to include visits to a doctor when the
       employee has symptoms that are eventually diagnosed as constituting a
       serious health condition, even if, at the time of the initial medical
       appointments, the illness has not yet been diagnosed nor its degree of
       seriousness determined. . . . Thus, as long as Hodgens satisfied, at some
       point in time, the “more than three consecutive days” requirement for
       establishing a serious health condition, his intermittent absences for less
       than four days . . . were protected under the FMLA if they were necessary
       “to determine if a serious health condition exists,” . . . or to treat such a
       condition. This is true even if the intermittent absences occurred before
       the consecutive absences.

Hodgens, 144 F.3d at 163 (citation omitted). This passage reflects the importance of
looking at the disease’s effects on the body over the entire period of illness. The
Seventh Circuit has even recognized that multiple illnesses, when temporally linked,
can result in a serious health condition protected by the FMLA. See Price, 117 F.3d
at 1025 (“how can one’s ability to perform at work be seriously impaired by a single
serious illness but not by multiple illnesses having a serious impact? The answer, of
course, is that it cannot; the disability is related to the cumulative impacts of illness on
one’s body and mind.”).

      FMLA’s purpose is to help working men and women balance the conflicting
demands of work and personal life. The law requires courts to consider the seriousness
of the afflicted individual’s condition because the law was designed to prevent
individuals like Juanita Caldwell from having to choose between their livelihood and
treatment for their own or their family members’ serious health conditions. Upon


                                           –9–
examining the seriousness of Kejuan’s ear infection, which required surgery to prevent
deafness, we hold that there is at least a question of fact as to whether Kejuan’s
condition was “serious” under the regulations.

       On the second prong of the threshold inquiry, we believe that Caldwell has
generated a genuine issue of fact regarding whether Kejuan received "subsequent
treatment." By regulation, a plaintiff will show subsequent treatment if the patient
merely undergoes "[t]reatment two or more times by a health care provider . . ." or
"[t]reatment 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)(i)(A)-(B). Here, after the first ten-day antibiotic treatment,
Kejuan was treated by Dr. Wright and later by Dr. Trone in surgery. After visits to
both Dr. Wright and Dr. Trone, Kejuan received antibiotic treatments. Furthermore,
the record shows at least two post-operative medical visits to monitor Kejuan’s
condition. Caldwell has presented sufficient evidence of subsequent treatment to defeat
summary judgment on this second prong.

       An employer does not avoid liability by discharging an employee who takes
leave in order to seek treatment for a condition that is later held to be covered by the
FMLA. The employer who precipitously fires an employee, when the latter claims the
benefits of leave under FMLA, bears the risk that the health condition in question later
develops into a serious health condition within the meaning of 29 C.F.R. § 825.114(a).

       In our view, a fact finder could determine that Kejuan suffered a serious health
condition: his infection caused an acute phase, followed by a course of continuing
treatment and disability, requiring further treatment and eventual surgery. While the
record does not clearly delineate the nature of the incapacity at all times during this




                                         –10–
extensive period, the evidence does support a fact finding of incapacity extending more
than three consecutive calendar days starting on June 7, 1997.6

III.   CONCLUSION

     For the reasons stated above, the district court erred in granting a summary
judgment of dismissal. Accordingly, we reverse and remand for further proceedings.

HANSEN, Circuit Judge, dissenting.

       I respectfully dissent.

       The district court correctly concluded that Kejuan did not have a "serious health
condition" as defined by the Family and Medical Leave Act (FMLA). In this case
involving continuing treatment by a health care provider, rather than inpatient care,
Kejuan's ear infection would qualify as a "serious health condition" only if it resulted
in "[a] period of incapacity . . . of more than three consecutive calendar days, and any
subsequent treatment or period of incapacity relating to the same condition . . . . " 29
C.F.R. § 825.114(a)(2)(i) (emphasis added). In order to qualify as continuing


       6
        The dissent argues that Caldwell does not satisfy the regulatory requirement of
incapacity for more than three days. It rests its argument, in part, on a statement during
oral argument in which Caldwell's counsel appeared to acknowledge that Caldwell's
supplemental affidavit mistakenly characterized Kejuan's incapacity as lasting for "more
than three days," when, in fact, Kejuan was only incapacitated for "at least three days."
Juanita Caldwell's supplemental affidavit does state in the third paragraph that Kejuan
was incapacitated for "more than three (3) consecutive days." J.A. at 89. A narrow
interpretation of counsel’s statement is not consistent with the record. Furthermore, the
lawyer’s last statement during the interchange discussed by the dissent shows that he
intended to show that Kejuan was incapacitated for more than three days, in conformity
with the regulations: “I think the rule is more than three days, in any event he was
incapacitated.”

                                          –11–
treatment, the regulations specifically require an incapacity of more than three
consecutive calendar days at the onset of the condition plus subsequent treatment or
incapacity.

       The record does not support Ms. Caldwell's contention that Kejuan was
incapacitated for more than three consecutive days at the time of the onset of the
condition. Ms. Caldwell's complaint listed no periods of incapacity. (JA at 1-3). Ms.
Caldwell's sworn response to interrogatory number 4, which asked her to list the dates
of incapacitation, stated, "June 7, 8, and 9." (JA at 27). Ms. Caldwell's brief in
response to Holland's motion for summary judgment stated that Kejuan was
incapacitated the week following his July 17 surgery. (JA at 48-51). Likewise, Ms.
Caldwell's statement of facts stated he was incapacitated the week following his July
17 surgery. (JA at 52-54). Also, Ms. Caldwell's affidavit alleged Kejuan was
incapacitated the week following his surgery. (JA at 55-57). Ms. Caldwell's response
to Holland's reply to her response to its motion for summary judgment listed no periods
of incapacity. (JA at 76-77). Consequently, the district court noted in its March 18,
1999, order that Ms. Caldwell "provided no evidence that her son was incapacitated
for more than three consecutive days during the time period of the June 7 absence as
required by the regulations." (JA at 84). The district court ordered Ms. Caldwell "to
supplement [her] response to [Holland's] motion for summary judgment with any
evidence regarding the incapacity of [Kejuan] immediately following his June 7
examination." (JA at 85). It was not until Ms. Caldwell filed her supplemental
affidavit in response to the district court's order that she, for the first time, alleged that
her son was "incapacitated beginning Saturday, June 7, 1997, for more than three (3)
consecutive days." (JA at 89). Prior to this supplemental affidavit, Ms. Caldwell had
alleged that Kejuan was incapacitated only on June 7, 8, and 9, and during the one-
week period following his surgery on July 17. Ms. Caldwell made no attempt to amend
her sworn answer to interrogatory number 4.




                                            –12–
      At oral argument, I asked counsel for Ms. Caldwell about the dates of Kejuan's
incapacity. The following exchange occurred:

      Judge Hansen:           In your response to interrogatory number 4, which
                              is in the appendix at page 27, you state that this
                              boy was incapacitated on June 7, 8, and 9, but in
                              the supplemental affidavit from your client she
                              states that he was incapacitated beginning on June
                              7 for more than three days, that's appendix at 89,
                              how do you explain that inconsistency?

      Counsel:                I guess I should have said at least three days,
                              that's what I was saying, it's at least three days, 7,
                              8, and 9.

      Judge Hansen:           Is that what the rule is, at least three days?

      Counsel:                I think the rule is more than three days, in any
                              event he was incapacitated. Let me move on.

       I respectfully disagree with the court's characterization in footnote 6 of the
exchange at oral argument. Clearly, the statement by counsel for Ms. Caldwell was an
acknowledgment that the assertion in the supplemental affidavit was incorrect and that
it should have stated "at least three days." Counsel's last statement was not an attempt
to show conformity with the regulations, as footnote 6 suggests. Counsel's last
statement before changing the subject away from the dates of incapacity was an
acknowledgment that "at least three days" of incapacity does not meet the FMLA
requirement of more than three days of incapacity. Additionally, my interpretation of
counsel's concession at oral argument is consistent with the record. Nowhere in the
record did Ms. Caldwell ever allege more than three days of incapacity during the time
period of the June 7 absence until she was ordered by the district court to offer such
evidence. If anything is inconsistent with or in the record, it is Ms. Caldwell's
supplemental affidavit. Kejuan's ear infection did not, according to counsel's own

                                         –13–
concession, incapacitate him for more than three days at the onset of the condition on
June 7. The supplemental affidavit in response to Holland's motion for summary
judgment, as qualified by counsel at argument, does not present evidence sufficient to
show a genuine dispute of material fact such that a reasonable jury could return a
verdict in favor of Ms. Caldwell. See Davis v. Fleming Cos., Inc., 55 F.3d 1369, 1371
(8th Cir. 1995).

       An affidavit submitted in response to a motion for summary judgment which
contradicts earlier sworn testimony without explanation of the difference does not
create a genuine issue of material fact. See RSBI Aerospace, Inc. v. Affiliated FM Ins.
Co., 49 F.3d 399, 402 (8th Cir. 1995). Here, Ms. Caldwell's supplemental affidavit
asserts for the first time that her son was incapacitated for more than three days
following the onset of his condition. This statement directly contradicts the sworn
interrogatory response that Kejuan was incapacitated only on June 7, 8, and 9. This
contradiction in sworn statements is the type of inconsistency that this court warned of
in RSBI Aerospace, 49 F.3d at 402 ("[T]his circuit has long held that parties to a
motion for summary judgment cannot create sham issues of fact in an effort to defeat
summary judgment.") (citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d
1361 (8th Cir. 1983)).

       The court would like to add together Kejuan's incapacity on June 7, 8, and 9,
along with his one-week period of incapacity following his July 17 surgery to remove
his adenoids and tonsils and to place tubes in his ears, in order to meet the "more than
three consecutive calendar days" requirement. Such an interpretation is inconsistent
with the language of the regulation. Section 825.114(a)(2)(i) requires a period of more
than three days incapacity and subsequent treatment or incapacity. As the court's
opinion explains, the applicability of the FMLA relies on a two-pronged inquiry. First,
Kejuan must have been incapacitated for a period of "more than three consecutive
calender days;" second, Kejuan must have been subsequently treated or incapacitated.
Although Kejuan's one-week recovery from his July 17 surgery met the second-prong

                                         –14–
"subsequent treatment or period of incapacity relating to the same condition"
requirement of § 825.114(a)(2)(i), Kejuan's initial condition did not meet the first-prong
requirement of a period "of more than three consecutive calendar" days of incapacity.

       The court relies on Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir.
1998), to support its contention that the time period following Kejuan's surgery on July
17 meets the first prong requirement of more than three days of incapacity. However,
Hodgens is distinguishable. In Hodgens, the plaintiff suffered from atrial fibrillation,
a serious and potentially life-threatening heart condition. Id. at 157. Unfortunately, the
doctor was unable to initially diagnose his condition. The plaintiff's first visit to the
doctor was on August 4, 1993, but he was not correctly diagnosed until September 21,
1993. Id. During that time period, the plaintiff had numerous doctor's appointments
and medical tests to evaluate his condition. Once the plaintiff was correctly diagnosed,
the doctor excused the plaintiff from work during the period of September 22 to
September 27, 1993. Id. The First Circuit determined that the four-consecutive-day
period of September 22 to September 27 met the three-day requirement of §
825.114(a)(2). Id. at 163. Thus, the First Circuit concluded that even the plaintiff's
intermittent absences before the diagnosis were protected under the FMLA if the
absences "were necessary to determine if a serious health condition exist[ed] or to treat
such a condition." Id. (internal citations and quotations omitted). However, only the
absences that were actually necessary for the plaintiff to attend medical appointments
related to his atrial fibrillation were protected under the FMLA. Id. at 172 ("[A]part
from the period from September 22-27, while [the plaintiff's] medical condition clearly
did require him to be absent from work . . . for his medical visits, it did not require the
vast majority of his absences during August and September.").

       Assuming Hodgens is a correct interpretation of the FMLA regulations pertaining
to intermittent leave, its conclusion is not applicable to this case. The doctor for Ms.
Caldwell's son did not have any difficulty in correctly diagnosing Kejuan's condition.
At the initial June 7 visit, the doctor informed Ms. Caldwell that Kejuan suffered from

                                          –15–
an acute ear infection and that he would probably require surgery to avoid hearing loss.
Although Kejuan's condition may have become a serious health condition at the time
of his surgery, Kejuan did not suffer from a serious health condition at the time of his
initial doctor's appointment. "[T]he FMLA and its implementing regulations defining
'serious health condition' are not concerned with the potential dangers of an illness but
only with the present state of that illness." Seidle v. Provident Mut. Life Ins. Co., 871
F. Supp. 238, 246 (E.D. Pa. 1994) (referring to 29 U.S.C. § 2611(11) and 29 C.F.R.
§ 825.114).

       In contrast, the plaintiff in Hodgens suffered from a serious condition at the time
of his initial doctor's appointment, even though the doctor did not know exactly what
that condition was. The doctor did, however, recognize that the plaintiff might be
suffering from a serious condition, and therefore, the doctor ordered the plaintiff to
undergo a series of tests. Hodgens, 144 F.3d at 157. In fact, the doctor initially
suspected that the plaintiff might be suffering from angina, "which could be extremely
serious or even fatal." Id. The doctor testified that it was reasonable for the plaintiff
to stay home from work until he got the results of his stress test. Id. This situation is
completely different from Ms. Caldwell's situation as evidenced by the fact that the
doctor correctly diagnosed Kejuan's condition, did not order any tests, recommended
surgery in the future to correct the problem, and did not suggest that Kejuan should stay
in bed or not participate in his normal activities. Certainly there is a distinction
between an undiagnosed, potentially life-threatening heart condition and a properly
diagnosed and promptly treated ear infection.

      Unlike the First Circuit, this court today has greatly expanded the definition of
incapacity to include periods of time when a patient is taking antibiotics or if the illness
disrupts basic daily routines. The court suggests that Kejuan may have been
incapacitated for at least the ten-day period following the onset of the illness during
which time Kejuan was taking antibiotics and that he may have been incapacitated for
the entire period from June 7 to July 17, an assertion never made even by Ms.

                                           –16–
Caldwell. The court has supplanted the express guidance provided by the FMLA
regulations with its own view of what constitutes an incapacity. See 29 C.F.R. §
825.114(a)(2)(i) (Incapacity is an "inability to work, attend school or perform other
regular daily activities."). In this respect, I reject the court's suggestion that
"incapacity" under the FMLA may be defined by the sniffle standards imposed by a
local daycare center.

        The legislative history of the FMLA indicates that Congress intended the FMLA
to apply only to serious health conditions. Congress did not include those "minor
illnesses which last only a few days and surgical procedures which typically do not
require hospitalization and require only a brief recovery period." Seidle, 871 F. Supp.
at 242 (quoting H.R. Rep. No. 103-8, pt. 1, at 29 (1993)). Kejuan's ear infection, up
until the point of his surgery, was a minor illness as shown by his not more than three
days of incapacity, his improvement on the onset day which allowed his mother to work
on the evening of onset (June 7) and to return to work on June 9, the lack of any
restrictions placed on him by his doctor, the length of time between his June 7 initial
doctor visit and his next follow-up visit on July 1, and the scheduling of his surgery
nearly six weeks after the onset of his illness. Ms. Caldwell's one-day absence from
work on June 7 to take her son to the doctor is not the type of absence that Congress
enacted the FMLA to cover. Congress expected absences for these types of minor
illnesses to be covered under an employer's sick leave policy. See id.

      Consequently, I would affirm the judgment of the district court because Kejuan
did not have a "serious health condition" as defined by the FMLA and its regulations.

      A true copy.

             Attest:

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

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