                                                                         [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR TH E ELEV ENTH C IRCUIT
                                                       U.S. COURT OF APPEALS
                              ________________________   ELEVENTH CIRCUIT
                                                                       October 02, 2003
                                    No. 02-13343                      THOMAS K. KAHN
                              ________________________                    CLERK


                         D. C. Docket No. 00-07866-CV-DTKH

MA RGA RET RUS SEL L,


                                                                        Plaintiff- Appe llant,

                                           versus

NOR TH B ROW ARD HOS PITA L,

                                                                       Defen dant-A ppellee.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                   (October 2, 2003)


Before TJOFLAT and CARNES, Circuit Judges, and CONWAY*, District Judge.


CARNE S, Circuit Judge:

       *
         Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
       This is M argaret R ussell’s ap peal from a judgm ent in fav or of the North

Broward H ospital District, her former employer, in the lawsuit she broug ht against

it. The Hospital terminated Russell’s employment because it concluded that she

had been absent from work too much. Russell does not deny being away from

work when the Hospital says she was, but she contends that her absences were for

medical reasons and were protected under the Family and Medical Leave Act, 29

U.S.C. §§ 2601-2654, and for that reason the Hospital could not fire her for being

out of work.

       The Hospital does not deny that Russell was out for medically-related

reasons, but contends that her absences nonetheless were not protected leave under

the FMLA. If that is correct, the Hospital was free to fire Russell without running

afoul of the Act – notwith standing the irony of its doin g so, giv en the bu siness it is

in.

       The co rrectness of the H ospital’s leg al position , and of th e judgm ent it

obtained based upon that position, depends on whether the medical condition

which caused Russell’s absences from work is a “serious health condition”

involving continuing treatment, as that term is used in the FMLA. 29 U.S.C.

§ 2611(11). The answer to that question, in turn, depends upon the interpretation

and validity of 29 C.F.R. § 825.114, a regulation that the Department of Labor



                                             2
adopted to provide an objective definition for the terms “serious health condition”

and “con tinuing tr eatment.” The regulation does so, in relevant part, by specifying

that in order to qualify as a serious health condition involving continuing treatment

under the FMLA, the health condition must result in a period of incapacity of

“more than three consecutive calendar days.”

       The issue the facts of this case present about the meaning of the regulatory

definition is whether the only days of incapacity that count are those in which the

employ ee is incap acitated all d ay long. I f so, the lea ve that R ussell too k fails to

meet the requirements of a “serious health condition involving continuing

treatment,” as defined in the regulation, because she was never incapacitated for

any continuous period of more than 72 hours. Our answer to that issue requires us

to decide as well whether the regulation is invalid insofar as it adopts a definition

of “serious health condition involving continuing treatment” that imposes a more-

than-72 -hour in capacity re quirem ent.

       Those two issues are pretty much what this case is about, although there are

also som e collateral a nd ancilla ry issues w hich w e need to address along th e way to

explaining our conclusion that “more than three consecutive calendar days” of

incapacity means a period of continuous incapacity extending more than 72 hours




                                               3
and our conclusion that this regulatory definition is not invalid. Given those two

holding s and the facts of th is case, the la st word in this op inion is: “A ffirmed .”



                                              I

                                             A.

       Marg aret Rus sell began work ing at the H ospital as a Patient A ccounts

Adjustment Representative in June of 1996. She was employed through a

temporary employment agency until April 21, 1997, when the Hospital gave her a

permanent position. Russell’s duties included computer work, light typing, filing,

and telephone work. By mid-January of 2000, Russell had been disciplined three

times for unscheduled absences. She had received a verbal reprimand on June 24,

1999, a written corrective action report on July 6, 1999, and a written final

corrective action report on January 17, 2000. Under the Hospital’s progressive

disciplinary system Russell was suspended for three days without pay after her

third tran sgressio n and ris ked term ination if h er absen teeism co ntinued .

       On May 31, 2000, Russell slipped and fell at work. The events of the ten

days immediately following that accident are at the heart of this appeal, so we lay

them out in some detail. The same day that Russell fell, the Hospital’s Employee

Health Department referred her to the Medwork clinic, a Hospital approved



                                              4
workers’ compensation health care provider, for examination. She was diagnosed

with a fr actured r ight elbo w and a spraine d ankle ( later she lea rned tha t her ank le

was actually fractured). When R ussell fell, she also aggravated an existing wrist

condition for which she had been receiving treatment before she fell. The treating

physician gave R ussell a slin g for he r arm an d prescr ibed D arvocet f or her p ain.

The physician told Russell that she could return to work, but restricted the use of

her right arm. After leaving the Medwork clinic and filling her prescription,

Russell d id return to wor k and fin ish out h er shift.

       The next day, June 1, Russell reported to work at 8:00 a.m. but left at 10:00

a.m. to go back to the Medwork clinic because she was experiencing what she

described as “severe pain.” Medwork told her that she needed to consult an

orthopaedist about her injuries. Russell, still in pain, called her supervisor, Marsha

Miller, and told her that she would n ot be returning to work that day. S he also

asked for the following day off, but Miller refused. Russell was paid for two hours

of work and six h ours of sick leave that day.

       On Ju ne 2 Ru ssell again reported to wor k at 8:00 a.m., but s oon be gan to

feel ill and s tarted vo miting (s he says it w as becau se she ha d taken h er pain

medicatio n on an empty sto mach). R ussell info rmed a s upervis or that sh e could

not con tinue w orking that day an d she w ent hom e at 9:05 a.m. Also on June 2,



                                              5
Luane Rutt, the Hospital’s workers’ compensation agent, authorized Russell to see

an ortho paedist an d sched uled her an appo intment f or June 5.

       Russell testified that she was in “excruciating pain” over the weekend of

June 3 and 4. The record reveals nothing else about that weekend. On the

following Monday, June 5, Russell went to see an orthopaedist, Dr. Boutin, who

certified that she could return to work but indicated that she should have “light

duty” because she “cannot use right arm.” Dr. Boutin also told Russell to keep

taking the Darvocet for her pain. She scheduled a follow-up appointment with Dr.

Boutin for a week later. After her appointment on June 5, Russell went to work for

the remainder of her shift, from about 11:20 a.m. to 4:30 p.m. Because she was

having trouble p erform ing her d uties, she r equested the use o f a speak er phon e.

The Hospital did not provide her with one that day or at any other time during her

final we ek of em ployme nt.

       On June 6 Russell reported to work at 8:00 a.m. but, because the pain had

yet to subside, she asked Miller if she could leave early. Miller allowed her to do

so, and R ussell left w ork at 2:0 0 p.m.

       On June 7 Russell was scheduled for another appointment with Medwork,

but Ru tt called her at home the even ing befo re, and ag ain that m orning , and told

her not to go to Medwork, but instead to wait for Rutt to schedule an appointment



                                             6
for Russell to see Dr. Boutin that day. Russell did not go in to work, but instead

waited a t home f or Rutt’s call. Wh en Rutt f inally called back at 2 :30 p.m . she told

Russell th at Dr. B outin’s o ffice wo uld be ca lling her w ith an app ointmen t time.

Dr. Boutin’s office did call and tell Russell she had an appointment for 3:30 that

afternoon. Russell said she did not have enough time to get to that appointment

and w ould no t be goin g. She did not go to the appo intment o r to wo rk, but sh e did

call Miller and exp lain wh y she had failed to re port to w ork. The next day, June 8,

Russell w orked a full day.

       On Ju ne 9 Ru ssell return ed to see D r. Boutin , and on e of his as sistants

placed her arm in a cast. She left the doctor’s office at 11:15 a.m. and went home

to get her medicin e and ch ange clo thes. Sh e fell asleep at home , did not g o to

work that day, an d did no t call to info rm M iller that she was go ing to be out.

       On Monday, June 12, M iller called Russell into her office shortly after

Russell r eported to wor k. Miller told her to go hom e, that hum an resou rces wo uld

contact her. The next day, Miller called Russell and asked her to come in for a

meeting at 10 :30 a.m. At th e meeting, the H ospital terminated Russell’s

employ ment be cause of her exce ssive abs enteeism .




                                              7
                                               B.

       Thereafter, Russell filed this lawsuit claiming that the Hospital had retaliated

against her for exercising a protected FMLA right. The protected right she claims

is the right to be absent from work during the period between May 31 and June 9,

2000, for a serious health condition.1 Russell’s compla int also inc ludes a cla im

that the Hospital fired her in retaliation for filing a workers’ compensation claim,

in violation of the Florida Workers’ Compensation Act. (On May 31, 2001,

Russell filed an amended complaint which added a claim under 42 U.S.C. § 1983,

but the district court later dismissed that claim, and Russell does not pursue it on

appeal.)

       At trial, in connection with her FMLA claim Russell submitted a jury

instruction relating to the requirements for a “serious health condition.” Her

proposed instruction tracked the statutory language, but it did not include the

regulation-based requirement of more than three consecutive calendar days of

incapacity . The H ospital su bmitted its own p ropose d jury ins truction, w hich did

include th e require ment. The district court, over Russell’s objection, instructed the

       1
         As we discuss later, Russell says only that her required “period of incapacity” extended
from May 31 until June 6. If she were to prevail on that contention, however, her later absences
on June 7 and 9 might be protected under the Act because 29 C.F.R. § 825.114 provides that
“any subsequent treatment or period of incapacity relating to the same condition” that caused the
initial qualifying period of incapacity of more than three days is protected under the Act. That
leads to her contention here that she had a right to be absent from work from May 31 until June
9.

                                                8
jury that m ore than three con secutive c alendar d ays of inc apacity are required to

constitute a “serious health condition.”

       During its deliberations, the jury submitted several questions about the

definition of a “serious health condition,” the last of which was whether three

consecutive partial days of incapacity could constitute a “serious health condition.”

The district court told the jury that what is required is “three consecutive calendar

days, 72 hours or more.” Shortly thereafter, the jury returned a verdict in favor of

the Ho spital.

       The district court entered final judgment for the Hospital, and Russell filed a

motion for judgment as a matter of law or, in the alternative, a new trial. The

district court denied that motion.



                                             II

       Before turning to the primary issues on appeal, we need to address three

prelimin ary ones the parties raise in the ir briefs: (A ) Wha t type of F MLA claim did

Russell b ring? ( B) Giv en the H ospital’s p rogress ive discip line system , can Ru ssell

base her claim on the pre-fall absences for which she was disciplined (absences

that resulte d from her dep ression a nd mig raine hea daches) ? An d, (C) C an Rus sell




                                             9
establish her claim by showing that her wrist injury was a “chronic serious h ealth

condition”?

                                              A.

       The two types of claims available to employees under the FMLA are

interferen ce and re taliation claim s. See Strickland v. Water Works & Sewer Bd.,

239 F.3d 119 9, 1206 (11th Cir. 200 1). In an interference claim the employee mu st

show only that he or she “was entitled to the benefit denied.” In contrast, with a

retaliation c laim the em ployee “fa ces the inc reased burden o f show ing that h is

employer’s actions were motivated by an impermissible retaliatory or

discriminatory animus.” Id. at 1206-07 (citation and internal quotation marks

omitted). Russell, wanting to take advantage of the lesser burden for interference

claims, has briefed this case as though she had brought an interference claim. The

Hospital will have none of it, though, and protests that Russell pleaded and tried a

retaliation c laim, not a n interfer ence claim .

       We need not decide which of those two legal theories Russell pursued in the

district cou rt, becaus e it does n ot matter. I nterferen ce and re taliation claim s both

require th e emplo yee to estab lish a “serio us health conditio n,” and a s we w ill

explain, Russell has failed to do that. As a result, she has not established her

entitlement to a benefit even under the more em ployee-friendly interference theory.



                                              10
                                              B.

       Russell also contends that the early disciplinary measures taken against her –

the verbal counseling, written counseling, and suspension – were for exercising

leave that was protected under the FMLA because it was leave caused by her

needing treatment for depression and migraine headaches. She contends that even

if the direct cause of her termination – her absences after her accident – is not

protected conduct under the FMLA, the termination nevertheless violated the Act

because it was the last step in a series of progressive disciplinary measures, and the

earlier step s leading up to it w ere discip linary actio ns impo sed for le ave that is

protected under th e Act.

       Whatever the merits of this theory, it is not one Russell presented to the

district court. The following colloquy between her trial counsel and the court

makes that clear:

       The Court: [A]s I understand it, and I want you to correct me if I am
       wrong, there is no claim in this case that has anything to do with the
       Family M edical Le ave Ac t, there is an y violation of the F amily
       Medic al Leave Act reg arding th at depres sion time ; is that righ t?

       [Russell’s Counsel]: Not a claim for that, but ties to the progressive
       discipline.

       The C ourt: A bsolutely . The jur y has a rig ht to kno w in pr esenting all
       the infor mation to the jury, b ut the jury needs to unders tand the o nly
       claim being made here, there is a violation of the Family Medical



                                              11
       Leave Act because o f the June, 2000 matters [her slip and fall injuries]
       we hav e been d iscussing .

Consistent with that exchange, the district court later instructed the jury to focus on

whether “the actions that took place in June of 2000 constituted violations of the

[FM LA],” a nd Ru ssell did n ot object to that instruction. Ru ssell’s slip an d fall

accident is the only b asis of the FML A claim she pres ented in the district c ourt,

and for that reaso n it is the on ly basis fo r recove ry preser ved for appeal. See Irving

v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998) (“Too often our

colleagues on the district courts complain that the appellate cases about which they

read were not the cases argued before them. We cannot allow Plaintiff to argue a

different case from the case she presented to the district court.”).

                                             C.

       Russell a lso conte nds that h er existing wrist inju ry, aggra vated in h er fall,

was a chronic serious health condition. Chronic serious health conditions, she

argues, d o not req uire mo re than th ree cons ecutive ca lendar d ays of inc apacity to

qualify fo r FM LA lea ve. See 29 C.F .R. § 82 5.114( a)(2)(iii). But see Price v.

Marathon Cheese Corp., 119 F .3d 330 , 334 n.1 6 (5th C ir. 1997 ) (“It is unc ertain

wheth er the thre e day req uiremen t applies to chronic serious h ealth con ditions.”) .

There is no men tion of a c hronic s erious h ealth con dition in R ussell’s co mplaint, in

the pretrial stipulation, or in her motion for judgment as a matter of law. The

                                              12
evidenc e of Ru ssell’s wr ist conditio n that w as introduced at tria l was of fered on ly

as background evidence to give the jury the entire picture of her health problems

and employment history, not for the purpose of establishing the existence of a

chronic serious health condition. Russell’s contention that her wrist injury

qualifies a s a chron ic serious health co ndition u nder the FML A is no t proper ly

before u s. Irving, 136 F.3d at 769.



                                             III

       Turning to the heart of this appeal, Russell contends that the district court

should have granted her motion for judgment as a matter of law because no

reasonable jury could have found that she did not meet the requirement of

incapacity for more than three consecutive calendar days. She argues that she

established seven consecutive partial days of incapacity and maintains that partial

days of incap acity always, as a m atter of law, me et the regulatory d efinition’s

requirem ents.

       Alternatively, Russell contends that if we determine that partial days of

incapacity do not meet the regulatory requirements as a matter of law, then we

should hold that partial days of incapacity may sometimes m eet those

requirem ents, and leave it up to the jury to decide if they do in any pa rticular cas e.



                                             13
If we agree with that, she say s, we will hav e to conclude that the district court’s

instruction that the period of incapacity necessary to satisfy the regulation is “three

consecutive calendar days, 72 hours or more” misled the jury into believing that

partial day s of incap acity can never satisf y the regu latory req uiremen t. This

decisional path, she says, will lead us to the conclusion that she is entitled to a new

trial.

         If all else fails , Russell a rgues th at the De partmen t of Lab or’s regu lation is

invalid, and that she should be granted judgment as a matter of law because she

satisfied th e unexp licated statu tory defin ition of a “s erious h ealth con dition.”

We believe that all else does fail for Russell, and that so does her fallback

argum ent that the regulatio n is invalid .

                                                A.

         The FMLA provides that “an eligible employee shall be entitled to a total of

12 workweeks of leave during any 12-month period . . . [b]ecause of a serious

health condition that makes the employee unable to perform the functions of the

position of such employ ee.” 29 U .S.C. § 2 612(1 )(D) (e mphas is added ).

Employees who take leave to which they are entitled under that provision must be

reinstated to the position they held before the leave; they cannot be fired for taking

the leave. Id. § 2614 (a).



                                                14
       The FM LA defines a “serious health con dition” as “an illness, injury,

impairment, or physical or mental condition that involves – (A) inpatient care in a

hospital, hospice, or residential medical care facility; or (B) continuing treatment

by a health care provider.” Id. § 2611(11). The first part of that definition is not

relevant to this case because Russell’s absences did not involve inpatient care. The

second part of the “serious health condition” definition, the one involving

“continu ing treatm ent by a h ealth care p rovider ” is at issue.

       The F MLA does no t define “co ntinuing treatmen t by a health care pro vider,”

but the D epartme nt of La bor has issued a r egulation defining that phra se, in

relevant part, as follows:

       (2) Continuing Treatment by a health care pro vider. A serious h ealth
       condition involving continuing treatment by a health care provider includes
       any one or more of the following:

       (i) A perio d of inca pacity (i.e., inability to work, attend school or
       perform other reg ular daily a ctivities du e to the ser ious hea lth
       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 prov ider, by a nurse
       or physician’s assistant under direct supervision of a health care
       provider, or by a provider of h ealth 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.

                                             15
       ....

29 C.F.R. § 825.114(a)(2)(i) (emphasis added).

                                               B.

       Russell’s first argument is that the district court should have granted her

judgment as a matter of law. “W e review the denial of a motion for jud gment as a

matter of law de novo, applying the same standard as the distr ict court.”

McC ormick v. Ade rholt, 293 F.3d 1254, 1258 (11th Cir. 2002). In doing so, we

look at the evidence in the light most favorable to the Hospital, the non-moving

party, dra wing a ll reasona ble infere nces in its f avor. See id. We must affirm the

jury verd ict unless “th ere is no le gally suff icient evid entiary ba sis for a re asonab le

jury to fin d for [th e Hosp ital] on that is sue.” Fe d. R. Civ . P. 50(a )(1).

       Russell s ays that sh e was in capacitated from M ay 31 to J une 6 an d asserts

that fact necessarily satisfies the regulation’s requirement that she be incapacitated

for more than three consecutive calendar days. She does not contend, however,

that at any point in time she suffered from an incapacity lasting three consecutive

full days o r more. I nstead, sh e argues that partial d ays of inc apacity are enoug h to

satisfy the regulation, and it is undisputed that she was incapacitated for parts of




                                               16
more than three consecutive calendar days during the period from May 31 to June

6.2

       Russell has not cited to us any judicial or administrative interpretation of

§ 825.114 supp orting the proposition that partial days of incapacity can ever, much

less will always, satisfy the regulation’s requirement of more than three

consecutive days of incapacity. Apparently, whether consecutive partial days of

incapacity count to ward th e § 825 .114 req uiremen t is an issue of first im pression in

the feder al appellate courts.

       The plain language of § 825.114 – “a period of incapacity . . . of more than

three consecutive calendar days” (emphasis deleted) – points the way to resolution

of this issue. A “period,” in the sense relevant here, means “any specified division

or portio n of time .” Rand om H ouse U nabridg ed Dictio nary 14 40 (2d ed. 199 3).

The specified portion of time in § 825.114 is “more than three consecutive calendar

days,” and a “calendar day” has a simple and universally understood meaning:



       2
         The Hospital’s argument does not focus on this question, but we note some doubt about
whether Russell has presented enough evidence that she was incapacitated – unable to perform
her normal daily activities – on June 3 and 4, two weekend days on which she was not scheduled
to work. We need not decide the question, however, because even if we assume that she has
established incapacity on those two days, Russell still has not put forward evidence that her
incapacity lasted more than three consecutive calendar days. She does not contend that she was
incapacitated all day on either June 2 or June 5.




                                              17
“[T]he p eriod fro m one m idnight to the follow ing mid night.” Id. at 296; see also

Black’s Law Dictionary 402 (7th ed. 1999) (“A consecutive 24-hour day running

from midnight to midnight.”); Webster’s Third New International Dictionary 316

(1986) (“[T]he time from midnight to midnight.”). A “calen dar day” thus refe rs to

a who le day, no t to part of a day, and it takes som e fraction more th an three w hole

calendar days in a row to constitute the “period of incapacity” required under

§ 825.1 14.

       If we interpret § 825.114 as requiring full days of incapacity, as we do, the

requirement will ensure that “serious health conditions” are in fact serious, and are

ones tha t result in an extende d period of incap acity, as Co ngress in tended. T his

interpretation adds certainty to the law by reading the regulation to set forth an

objective, bright-line rule defining the period of incapacity necessary to invoke the

protectio ns of the FML A.

       On the other hand, if w e were to interpret § 825.114 as a llowing partial days

of incap acity to me et the requ irement – a strained interpreta tion give n the plain

regulato ry langu age – the objectivity and certa inty that the regulatio n fosters will

be und ermined . Unde r that opp osing in terpretatio n, whic h Russ ell urges u pon us ,

courts and juries would continually confront confounding issues about how much

incapacity on a given day is enough for that day to count toward the regulatory



                                            18
requirement. Are five hours enough? Fifty minutes? Fifteen minutes? Five

minutes? Does it depend on the circumstances? If so, how so?

       We are loathe to adopt a strained interpretation of a regulatory provision that

would result in employers, employees, and courts facing an uncertain and ever-

shifting le gal lands cape. W e think th e better ru le, and m ore imp ortantly th e rule

that the language of § 825.114 indicates the Secretary of Labor has chosen, is the

one that sets forth an objective standard of more than three consecutive full days of

incapacity. Partial days do not count, except at the beginning or end of the “period

of incap acity” in or der to m ake up th e “more th an” elem ent.

       Russell stakes her position on the contention that partial incapacity days do

count; she does not contend that she was incapacitated for more than three

consecu tive calend ar days. We reje ct her par tial days po sition and conseq uently

affirm the jury’s implicit finding that she did not have a “serious health condition.”

Given the facts, no reasonable jury could have found otherwise.

                                             C.

       Our co nclusion that mor e than thr ee conse cutive w hole day s of incap acity

are required means that we also reject Russell’s contention that the district court

erred by instructing the jury that what is required is “three consecutive calendar

days, 72 hours o r more.”



                                             19
                                                D.

       As a fallback position, Russell argues that if the regulation requires more

than thre e consec utive full d ays of inc apacity, it is in valid. It do es, but it isn ’t.

Congress delegated to the Secretary of Labor the authority to “prescribe such

regulations as are necessary to carry out” the FMLA’s general requirements for

leave. 29 U.S.C. § 2654. The regulation at issue here was promulgated in the

exercise of that authority, using formal notice and comment rulemaking

procedures. The familiar two-step Chevron analysis ap plies. See United States v.

Mead Corp., 533 U.S. 218, 226-27, 121 S. Ct. 2164, 2171 (2001).

       Under Chevron, we first d ecide “w hether C ongres s has dire ctly spok en to

the precis e questio n at issue” and, if it ha s not, “the q uestion f or the co urt is

wheth er the age ncy’s ans wer is b ased on a permis sible con struction of the statu te.”

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104

S. Ct. 27 78, 278 1-82 (1 984). W hen con sidering wheth er the con struction is

permiss ible, “Chevron manda tes that w e defer to a reasonable agen cy effort to fill

the gaps in a given statutory scheme.” Southern Co. v. F.C.C., 293 F.3d 1338,

1348 (11th Cir. 2002). Also, if the statute is ambiguous, a regulation promulgated

in response to a direct delegation of authority, like the one here, “is binding in the




                                                20
courts unless procedurally defective, arbitrary or capricious in substance, or

manifestly contrary to the statute.” Mead, 533 U .S. at 227 , 121 S . Ct. at 217 1.

       Russell argues that Congress did not explicitly set forth in the FMLA a

requirem ent of m ore than three con secutive c alendar d ays, and th at “Cong ress only

intended the condition last ‘more than a few days.’” Brief of Appellant at 31 (citing

Corcino v. Banco Popular de Puerto Rico, 200 F. Supp. 2d 507, 509 (D.V.I.

2002)); see also Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir.

1999) (“[T]he FMLA was designed to cover serious illnesses that last more than a

few days.”). She objects to the imposition of any objective standard by the

Department of Lab or, arguing that a requirement of mo re than three calendar days

“is just as arbitrary as if [it were] 7 days, 30 days or 1 year.” Brief of Appellant at

32-33 . Of cou rse, mos t objective standard s are arbitr ary in the s ense that v irtually

any line that is drawn could be moved a little one way or the other with as much

reason as not, but lines have to be drawn somewhere because they are an inherent

part of a predictive system of law. Som etimes Congress draw s the fine lines,

sometim es admin istrative ag encies do , and som etimes co urts hav e to draw them.

       Here Congress entrusted the task of drawing the fine lines to the Department

of Lab or. The statute do es not sp eak prec isely to the is sue beca use it doe s not tell

us exactly which medical or health conditions are serious enough to qualify for



                                             21
FMLA leave protection. What Congress did was sketch the outlines of the picture

and leave to the Department of Labor the task of drawing in the finer lines and

coloring the space s. That is n ot unus ual. Con gress of ten conf ines itself to the big

picture an d leaves th e detail w ork to ad ministrativ e agencie s, subject o f course to

congre ssional o versigh t.

       Acting pursuant to the authority Congress gave it, the Department of Labor

has defined the otherwise undefined statutory term “serious health condition” when

it involves “continuing treatment.” Insofar as the requirement of more than three

consecutive full calendar days is concerned – which is all we have before us – the

Department’s linedrawing is reasonable and consistent with the underlying intent

behind the FMLA. We agree with the Eighth Circuit that the regulatory “objective

test for ‘serious health condition,’ which avoids the need for employers – and

ultimately c ourts – to make su bjective d ecisions a bout statu tory ‘serio us health

conditions,’ clearly is a permissible construction of the statute.” Thorson v.

Gemini, Inc., 205 F.3d 370, 380 (8th Cir. 2000) (deferring to materially identical

interpreta tion of “se rious he alth cond ition” pro mulgate d as an in terim rule ); see

also Rhoads v. F.D.I.C., 257 F.3d 373, 382 n.7 (4th Cir. 2001) (same). Under

Chevron, we defer to the Department of Labor’s permissible construction of the

FML A, and accordin gly reject R ussell’s co ntention that 29 C .F.R. § 8 25.114 is



                                             22
invalid insofar as it defines a “serious health condition” involving “continuing

treatment.”



                                           IV

      Finally, in the misce llaneous issues cate gory, R ussell arg ues that sh e should

be granted a new trial for two other reasons. One of them is that the district court

failed to ad mit into ev idence a d ecision b y the Flo rida Un employ ment A ppeals

Commission containing factual findings favorable to her. That state administrative

decision determined: “[T]here was no preponderance of evidence to show that

[Russell’s] actions while employed by [the Hospital] demonstrated a wanton and

intentional disregard of the employer’s interests.” Okay, but so what? The finding

that it was not established that Russell wantonly or intentionally disregarded the

Hospital’s interest has no relevance to whether she had a serious health condition

for FMLA purposes, which is the pivotal issue in this case, or to any other issue

that matters here.

      The final reason Russell puts forward for reversal relates not to her FMLA

claim but to her state worker’s compensation retaliation claim. The only issue she

raises about this claim is her contention that the district court should have

instructed the jury that if the Hospital were “threatening, coercing, or retaliating”



                                           23
against R ussell w hen it den ied her ac cess to a sp eaker ph one and when Rutt told

her not to go to her scheduled appointment at the Medwork clinic, then a verdict

should be returned in her favor on this claim. The district court instructed the jury

on retaliatio n only as it related to h er discha rge. Th e court’s d ecision n ot to

instruct the jury as to the matters invo lving the speak er phone an d doctor’s

appointment was not error, because no reasonable jury could have found from the

evidence that when the Hospital took those actions it had any motive to threaten,

coerce, or retaliate against Russell for filing a state worker’s compensation claim.

                                              V

       To summarize our conclusions, we hold that 29 C.F.R. § 825.114, the

Department of Labor’s regulation requiring that an employee be incapacitated for

more than three consecutive calendar days in order to have a qualifying “serious

health condition,” is valid. And it is properly understood to require more than

three con secutive f ull days o f incapac ity; consec utive par tial days are not eno ugh.

Accor dingly, th e district co urt corre ctly entered judgm ent for th e Hosp ital, in

accordance with the jury’s verdict, and correctly denied Russell’s motion for

judgment as a matter of law or, in the alternative, for a new trial. All of the other

issues Russell raises in her brief are either not preserved or are meritless.

       AFFIRMED.



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