                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-3016
                                   ___________

Debbie Stekloff,                      *
                                      *
             Appellant,               *
                                      * Appeal from the United States
       v.                             * District Court for the Eastern
                                      * District of Missouri.
                                      *
St. John's Mercy Health Systems,      *
                                      *
             Appellee.                *
                                 ___________

                             Submitted: April 14, 2000

                                  Filed: July 12, 2000
                                   ___________

Before RICHARD S. ARNOLD, ROSS, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Debbie Stekloff was employed as a psychiatric nurse for St. John's Mercy Health
Systems when she had an argument with her supervisor about making personal calls
during work hours. Within minutes after the conclusion of the argument, Ms. Stekloff
told her supervisor that she was too upset to perform her work and that she was
leaving. Ms. Stekloff then contacted her physician, who met her at the hospital. The
doctor wrote a note recommending that she not return to work for about two weeks,
and Ms. Stekloff immediately placed it in her supervisor's mailbox. St. John's fired her
eight days later for "job abandonment."

       Ms. Stekloff contends, first, that St. John's violated her rights under the Family
and Medical Leave Act of 1993 (FMLA), see 29 U.S.C. §§ 2601-2654, when it
terminated her employment and, second, that St. John's tortiously interfered with her
employment in a separate job. The district court granted summary judgment to
St. John's on the FMLA claim and then declined to exercise supplemental jurisdiction
over the tortious interference claim. Ms. Stekloff appeals, and we vacate the judgment
and remand the case for further proceedings.

                                            I.
      The FMLA provides that an "eligible employee" may take a total of 12 weeks
of unpaid leave during any 12-month period if a "serious health condition ... makes the
employee unable to perform the functions of [the employee's] position," see 29 U.S.C.
§ 2612(a)(1)(D), see also § 2612(c). It is undisputed that Ms. Stekloff was an "eligible
employee," see 29 U.S.C. § 2611(2). The parties differ, however, on whether
Ms. Stekloff has met the other two conditions, that is, whether she had a "serious health
condition" that rendered her unable "to perform the functions of [her] position."

       We note initially our disagreement with Ms. Stekloff's contention that St. John's
has waived its right to contest the fact that she has a "serious health condition."
Ms. Stekloff bases her argument on the provisions of the FMLA that allow an employer
to require an employee to provide a "certification" from the employee's health care
provider, see 29 U.S.C. § 2613(a). These provisions also allow an employer who
wishes to contest the validity of the medical certification to require the employee to
obtain a second opinion, see 29 U.S.C. § 2613(c)(1). In this case, St. John's made no
effort to get a second opinion, and Ms. Stekloff suggests that St. John's has therefore
waived its right to contest her assertion that she had a "serious health condition."




                                          -2-
       The language of § 2613(c)(1), however, is merely permissive: It states that an
employer with "reason to doubt the validity" of the employee's certification "may"
require the employee to obtain the opinion of a second health care provider. We do not
read § 2613(c)(1) as requiring an employer to obtain a second opinion or else waive
any future opportunity to contest the validity of the certification. We note, moreover,
that several of our recent cases involving the FMLA have considered employer
arguments that an employee did not have a serious medical condition in spite of the fact
that no second opinion was sought. See, e.g., Thorson v. Gemini, Inc., 205 F.3d 370,
375, 381-82 (8th Cir. 2000). We turn, therefore, to the merits of the parties' arguments.

                                             II.
       The FMLA's definition of "serious health condition" includes "mental
condition[s] that involve ... continuing treatment by a health care provider," see 29
U.S.C. § 2611(11)(B). The term is described in further detail in a relevant
administrative regulation that states that a "serious health condition" includes, among
other things, a "period of incapacity (i.e., inability to work ... due to the serious health
condition ...) of more than three consecutive calendar days ... that also involves ...
[t]reatment two or more times by a health care provider," see 29 C.F.R.
§ 825.114(a)(2)(i)(A). St. John's admits that Ms. Stekloff visited a health care provider
at least twice to treat her condition but contends that she has failed to show that she
was unable to work for more than three consecutive days.

       We believe that Ms. Stekloff has presented more than enough evidence to allow
a reasonable jury to find that she was unable to work in her job at St. John's for a
period of more than three consecutive calendar days. Her physician testified that
Ms. Stekloff "was sicker than her patients" and that she was unable to perform the
essential functions of her employment at St. John's. The doctor emphasized that
Ms. Stekloff needed a break from her work at St. John's because the environment in her
unit (and presumably in close proximity to the supervisor with whom she had her
disagreement) was "re-injuring a traumatized area of her life."



                                            -3-
       St. John's points out, however, that Ms. Stekloff was hired for a second part-time
nursing job at St. Anthony's Home Care Agency shortly before she took her leave from
St. John's. At that time, Ms. Stekloff was attending orientation during the mornings at
St. Anthony's, which consisted of "shadowing" another registered nurse. Ms. Stekloff
attended orientation at St. Anthony's the day after she took her leave from St. John's
and continued to attend orientation during all times relevant to this case. St. John's
contends that Ms. Stekloff did not suffer a "period of incapacity" of longer than three
calendar days because she "worked" at St. Anthony's within one day of taking her leave
from St. John's.

       We think that the key issue in this case is whether Ms. Stekloff's inability to
work at St. John's is enough to show that she was unable to work for FMLA purposes
and therefore was incapacitated within the meaning of the FMLA, or whether she must
further show that she was unable to work in some job other than her own. We are
aware of the parallels between the issue before us and the inquiry that is made to
determine whether a plaintiff is disabled within the meaning of the Americans with
Disabilities Act of 1990 (ADA), see 42 U.S.C. §§ 12101-12213. An ADA plaintiff
must demonstrate that he or she is unable to work in a "broad range of jobs" to show
that he or she is unable to perform "the major life activity of working" and is therefore
disabled for purposes of the ADA, see 29 C.F.R. § 1630.2(j)(3)(i). A plaintiff who
shows only an inability to perform his or her own job has not, therefore, made a
showing of disability sufficient to entitle him or her to the protections of the ADA. See
Taylor v. Nimock's Oil Co., No. 99-2018, 2000 WL 709495, at *3 (8th Cir. June 2,
2000).

       We do not think, however, that the FMLA requires a similar showing to
demonstrate an "inability to work." Indeed, the applicable regulations emphasize that
the "ADA's 'disability' and [the] FMLA's 'serious health condition' are different
concepts, and must be analyzed separately," see 29 C.F.R. § 825.702(b). Upon
consideration of the declared purposes of the FMLA and its legislative history, we hold
that a demonstration that an employee is unable to work in his or her current job due

                                          -4-
to a serious health condition is enough to show that the employee is incapacitated, even
if that job is the only one that the employee is unable to perform.

        In reaching this conclusion, we think that it is important to understand that a
motivating force behind the adoption of the FMLA was Congress's concern with the
"inadequate job security for employees who have serious health conditions," see 29
U.S.C. § 2601(a)(4). The regulations emphasize the benefits of "stable workplace
relationships," noting that "[w]hen workers can count on durable links to their
workplace they are able to make their own full commitments to their jobs," see 29
C.F.R. § 825.101(c). We therefore think that a desire to promote job security and
stability in workplace relationships was central to Congress's decision to pass the
FMLA. The fact that the employee perhaps could find work elsewhere does nothing
to mitigate the damage caused by a disruption in the working relationship already
established between the employee and his or her current employer.

       St. John's cites Martyszenko v. Safeway, Inc., 120 F.3d 120, 122 (8th Cir. 1997),
in which we awarded summary judgment to the defendant employer, for the proposition
that an employee must be generally incapacitated to have a "serious health condition"
under the FMLA. Martyszenko, 120 F.3d at 122, however, did not hold that a plaintiff
must show that he or she is totally incapacitated; it merely applied the regulation's
definition of "serious health condition," which includes the requirement of some
incapacity. We believe that Ms. Stekloff has provided sufficient evidence that she was
incapacitated, at least to the extent of being unable to work in her current job, a
showing that the plaintiff in Martyszenko failed to make: There was no indication that
the health condition in Martyszenko "hindered [the plaintiff's son's] ability to participate
in any activity at all," id. at 123.

       St. John's also directs our attention to Carter v. Ford Motor Co., 121 F.3d 1146,
1148 n.5 (8th Cir. 1997), in which we suggested that it was doubtful that the plaintiff
had a "serious health condition" because he worked in an unrelated job during the same
time period in which his doctor had characterized him as totally disabled. We note,

                                            -5-
however, that this passing comment was dictum and does not bind us. See RTC
Mortgage Trust v. Haith, 133 F.3d 574, 577 (8th Cir. 1998). We believe, moreover,
that the facts of Carter are distinguishable from ours. There was no indication in
Carter, 121 F.3d at 1148, that the circumstances of the plaintiff's illness rendered him
unable to work for one employer but not another, and therefore the fact that the plaintiff
in Carter was working for a different employer at the same time as his alleged
disability led us to speculate that his claim of being "totally disabled" was "doubtful."
Ms. Stekloff, on the other hand, never claimed to have been "totally disabled," and the
fact that she worked at St. Anthony's is not inconsistent with the serious health
condition that she claims to have had.

       We think, in other words, contrary to the position of St. John's, that the concept
of "serious health condition" was meant to be "broad," see S. Rep. No. 103-3, at 28
(1993), reprinted in 1993 U.S.C.C.A.N. 3, 30, and that the FMLA's provisions should
be interpreted to effect its remedial purpose. See Hodgens v. General Dynamics
Corp., 144 F.3d 151, 164 (1st Cir. 1998). In our case, a reasonable jury could find that
Ms. Stekloff's condition rendered her unable to perform her duties at St. John's for more
than three consecutive days, and we hold that that is enough for a jury to conclude that
she was incapacitated within the meaning of the FMLA.

                                          III.
       Having found that Ms. Stekloff raised a material question of fact as to whether
she had a "serious health condition," we now inquire whether a jury could reasonably
find that her condition rendered her "unable to perform the functions of [her] position,"
see 29 U.S.C. § 2612(a)(1)(D). The regulations define this phrase as "unable to work
at all" or "unable to perform any one of the essential functions of the employee's
position within the meaning of the American with Disabilities Act," see 29 C.F.R.
§ 825.115. These functions are determined "with reference to the position the
employee held at the time ... leave commenced," id.




                                           -6-
       As we have said, we think that Ms. Stekloff has made a sufficient showing that
she could not perform the essential functions of her position as a psychiatric nurse at
St. John's, which allows us to conclude that she had a "serious health condition." There
is some question, however, as to whether the second requirement for FMLA eligibility,
namely, that Ms. Stekloff be unable to perform the essential functions of her position,
obligates her to show that she was unable to perform these functions in job
environments other than her present one.

       For the same reasons that we believe that the "serious health condition" inquiry
should focus on an employee's current job with her current employer, we believe that
the inquiry into whether an employee is able to perform the essential functions of her
job should focus on her ability to perform those functions in her current environment.
Ms. Stekloff has provided sufficient evidence that she could not perform the essential
duties of her position as a psychiatric nurse at St. John's as a result of the serious health
condition, and it appears to us that that is all that 29 U.S.C. § 2612(a)(1)(D) requires.
Although the parties disagree on whether Ms. Stekloff's work at St. Anthony's rose to
the level of work performed by a psychiatric nurse, we do not think that that issue is
material to her FMLA eligibility: Ms. Stekloff's leave is protected by the FMLA even
if she was continuously able to work as a psychiatric nurse for some other employer.

                                          IV.
       St. John's points out that a few hours elapsed between the time when
Ms. Stekloff left the floor of the psychiatric unit and the time when she obtained the
note from her doctor recommending that she stay home from work. St. John's contends
that Ms. Stekloff could properly be terminated for "abandoning" her patients for a few
hours, and that such an action would not run afoul of the FMLA because Ms. Stekloff
had not yet received permission from her doctor to leave work. We disagree.

       There is no requirement in the statute that an employee be diagnosed with a
serious health condition before becoming eligible for FMLA leave. The regulations
note that absences attributable to the employee's serious health condition can qualify

                                            -7-
for FMLA leave even if the employee "does not receive treatment from a health care
provider during the absence," and cite as an example an asthmatic person who is unable
to report to work because of an asthma attack. See 29 C.F.R. § 825.114(e). As a
matter of common sense, moreover, it seems to us that an employee who falls and
breaks a leg while on the job should not be required to attempt to keep working (and
be subject to termination for failure to do so or even for failure to perform some tasks
up to standard) until a doctor arrives and excuses him or her.

                                           V.
       For the reasons stated, we vacate the district court's grant of summary judgment
to St. John's on Ms. Stekloff's FMLA claim and remand for further proceedings not
inconsistent with this opinion. The district court declined to exercise jurisdiction over
Ms. Stekloff's state-law claim since it had granted summary judgment to St. John's on
her federal claim. In light of our remand with respect to Ms. Stekloff's FMLA claim,
we also vacate the district court's dismissal of Ms. Stekloff's state-law claim and
remand for a determination of whether the exercise of supplemental jurisdiction would
be proper. See 28 U.S.C. § 1367(a), § 1367(c).

      A true copy.

             Attest:

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




                                          -8-
