                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 20 2014
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
FANNY K.F. TSUN,                                 No. 13-15645

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00051-LEK-
                                                 KSC
  v.

WDI INTERNATIONAL, INC.,                         MEMORANDUM*

              Defendants - Appellees.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                            Submitted October 8, 2014**
             University of Hawaii William S. Richardson School of Law
                                 Honolulu, Hawaii

Before: TASHIMA, RAWLINSON, and CLIFTON, Circuit Judges.

       Fanny K.F. Tsun appeals the district court’s order granting summary

judgment in favor of WDI International, Inc. on her claims under the Hawaii

Family Leave law (HFLL) and the Family Medical Leave Act of 1993 (FMLA).

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Tsun’s requested leave under the HFLL could only be premised on her

father-in-law’s “serious health condition.” Haw. Admin. C. § 12-27-1 (defining

“serious health condition” and “parent” to include “parent-in-law”); Haw. Admin.

C. § 12-27-6(f) (HFLL protected leave “shall not include the serious health

condition of the employee”). However, once her father-in-law passed away, she no

longer had a qualifying reason to request leave under the HFLL. See Haw. Rev.

Stat. § 398-1 (“Serious health condition” means “a physical or mental condition

that warrants the participation of the employee to provide care during the period of

treatment or supervision by a health care provider . . .”).

      Tsun’s claim for leave under the FMLA was predicated on her statement that

she injured her back while in Hong Kong. To qualify for leave under the FMLA,

Tsun had to experience a “serious health condition.” 29 U.S.C. § 2612, found

unconstitutional on other grounds in Coleman v. Ct. App. Md., 132 S. Ct. 1327

(2012). A “serious health condition” is defined as “an illness, injury, impairment

or physical or mental condition that involves . . . continuing treatment by a health

care provider . . . ” 29 U.S.C. § 2611(11). In turn, a “health care provider” is

defined as:

              (1) 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


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             (2) Any other person determined by the Secretary to be capable of
             providing health care services.

29 C.F.R. § 825.125(a).

      Other persons capable of providing health care services in a country outside

the United States include only those “authorized to practice in accordance with the

law of that country, and who is performing within the scope of his or her practice

as defined under such law.” Id. at § 825.125(b)(5).

      Tsun failed to raise a material issue of fact that she was being treated by a

health care provider as defined in the FMLA. She proffered evidence that she was

treated in Hong Kong by “a licensed bone specialist [who] also practiced Chinese

medicine.” The treatment consisted of a “special type of ointment” and a back

massage. No evidence was submitted that the “Chinese doctor,” was a health care

provider as defined under the FMLA. Tsun failed to raise a material issue of fact

that she was treated by a health care provider as defined in the FMLA, thereby

failing to raise a material issue of fact that she suffered from a “serious health

condition” that qualified her for FMLA leave. 29 U.S.C. § 2612; 29 U.S.C. §

2611(11); 29 C.F.R. § 825.125(a); Sanders v. City of Newport, 657 F.3d 772, 778

(9th Cir. 2011) (holding that a viable FMLA claim requires a showing that the

employee was entitled to leave).



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AFFIRMED.




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