                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      September 5, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    N O RM A SILC OX ,

             Plaintiff-Appellant,

    v.                                                    No. 05-6401
                                                    (D.C. No. 05-CV-242-M )
    VIA CHRISTI OKLAHOM A                                 (W .D. Okla.)
    REGIONA L M EDICAL CENTER –
    PONCA CITY INC., an Oklahoma
    Corporation formerly known as St.
    Joseph Regional M edical Center of
    Northern Oklahoma Inc.,

             Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before O’BRIEN, PO RFILIO, and ANDERSON, Circuit Judges.


         Plaintiff Norma Silcox appeals from a district court order granting

summary judgment in favor of her former employer, Via Christi Oklahoma

Regional M edical Center (Via C hristi), on her claim of illegal discharge in


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
violation of the Family and M edical Leave Act (FM LA or Act), 29 U.S.C.

§§ 2901 – 2654. Because we agree with the district court that Silcox failed to

establish that she suffered from a “serious health condition” as that term is

defined in the Act, we exercise our jurisdiction under 28 U.S.C. § 1291 to affirm.

                                    Background 1

      Silcox began w orking for Via Christi as a certified nurse’s aid in August

1998. O n M arch 14, 2002, she injured her back while at work and left early. O n

her time card for that day, she reported leaving at 19:50, although she actually left

some time in the morning. On M arch 18, 2002, Silcox visited Dr. Rebecca

Bristow, a chiropractor, for the injury to her back. Dr. Bristow did not take any

x-rays of Silcox’s spine. She diagnosed Silcox with a spinal subluxation,

however, and filled out a disability slip indicating that Silcox was temporarily

totally disabled and restricted from working. On M arch 18 and again on

M arch 20, Dr. Bristow performed manipulative therapy on Silcox’s spine to

correct the subluxation.

      Dr. Bristow released Silcox to return to work on M arch 27, 2002. On that

day, Silcox’s supervisor confronted her about the discrepancy on her time card

concerning her clock-out time for M arch 14, 2002. Silcox explained that she




1
       In reviewing the district court’s order, we view the record in the light most
favorable to Silcox, the party opposing summary judgment. B-S Steel of Kan.,
Inc. v. Tex. Indus., Inc., 439 F.3d 653, 660 (10th Cir. 2006).

                                         -2-
wrote down 19:50 by accident. Nonetheless, she was fired. Via Christi maintains

that it fired Silcox for reporting a fraudulent clock-out time. Silcox argues,

however, that Via Christi actually fired her for exercising her right to take leave

under the FM LA and that the fraud excuse was pretextual.

      On February 28, 2005, Silcox sued Via Christi in district court alleging that

Via Christi interfered with her right to take medical leave and discriminated

against her in violation of the FM LA. She also alleged various state law claims.

Via Christi filed a motion for summary judgment seeking dismissal of the FM LA

claim based on Silcox’s failure to establish that she suffered from a “serious

health condition” within the meaning of the FM LA. The court agreed and on

November 21, 2005, issued an order granting Via Christi’s motion for summary

judgment, dismissing the FM LA claim and declining to exercise supplemental

jurisdiction over Silcox’s state law claims. This appeal followed.

                                      Analysis

      “On appeal, we review the district court’s grant of summary judgment de

novo, applying the same legal standards as employed by the district court. . . .

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law.” B-S Steel of Kan.,

Inc. v. Tex. Indus., Inc., 439 F.3d 653, 660 (10th Cir. 2006) (quotations and

citations omitted).




                                         -3-
      The district court dismissed Silcox’s federal claim because it found that she

failed to establish the applicability of the FM LA. The court explained that “a

‘serious health condition’ entitling an employee to FM LA leave involves either

inpatient care, or ‘continuing treatment by a health care provider’.” Aplt. App. at

242 (citing 29 C.F.R. § 825.114). As it further explained, a “health care

provider” is defined in the FM LA as “(A) a doctor of medicine or osteopathy who

is authorized to practice medicine or surgery (as appropriate) by the State in

which the doctor practices; or (B) any other person determined by the Secretary

[of Labor] to be capable of providing health care services.” 29 U.S.C. § 2611(6).

The court noted that under the Secretary’s regulations, chiropractors are among

those “capable of providing health care services” only to the extent that the

chiropractor’s treatment “consist[s] of manual manipulation of the spine to correct

a subluxation as dem onstrated by X-ray to exist.” 29 C.F.R. § 825.118(b)(1)

(emphasis added). Since it was undisputed that Dr. Bristow did not take x-rays of

Silcox’s spine, the court concluded Dr. Bristow was not a health care provider

w ithin the meaning of the FM LA .

      Silcox raises two challenges to the district court’s decision. She argues

that the court erred by failing to consider Dr. Bristow’s qualifications under

§ 825.118(b)(4) 2 and that the Secretary’s interpretation of health care provider



2
      Under that section, “[o]thers ‘capable of providing health care services’
                                                                      (continued...)

                                         -4-
with respect to chiropractors is arbitrary and capricious. W e conclude that neither

of these challenges has merit, and that the district court properly dismissed

Silcox’s claims for her failure to establish the applicability of the FM LA. 3 The

judgment of the district court is, therefore, AFFIRM ED for the same reasons

stated in its well-reasoned decision of November 21, 2005.


                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




2
 (...continued)
include . . . [a]ny health care provider from whom an employer or the employer’s
group health plan’s benefits manager will accept certification of the existence of a
serious health condition to substantiate a claim for benefits.” 29 C.F.R.
§ 825.118(b)(4).
3
       Silcox’s attempt to invoke 29 C.F.R. § 825.118(b)(4) is specious given the
Secretary’s clear intent to limit coverage to chiropractic treatment that is
accompanied by diagnostic x-rays. W e also note that Silcox’s attack on the
validity of the Secretary’s regulations is devoid of any authority and does not
even attempt to explain why this court should not defer to the Secretary’s
interpretation of the FM LA, a law she is entrusted to administer. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

                                         -5-
