United States Court of Appeals
For the First Circuit
No. 10-1169
MARIA LUCIA TAYAG,
Plaintiff, Appellant,
v.
LAHEY CLINIC HOSPITAL, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Monica J. Molnar with whom Peter H. Noone and Avery Dooley
Post & Avery, LLP were on brief for appellant.
Brian E. Lewis with whom David J. Kerman and Jackson Lewis LLP
were on brief for appellee.
January 27, 2011
BOUDIN, Circuit Judge. Maria Lucia Tayag ("Tayag") was
terminated by her employer, Lahey Clinic Hospital, Inc. ("Lahey"),
while taking an unapproved seven-week leave to accompany her
husband, Rhomeo Tayag ("Rhomeo"), on a spiritual healing trip. The
district court denied her claims against Lahey on summary judgment,
including one under the Family and Medical Leave Act ("FMLA"),
29 U.S.C. §§ 2601-2654 (2006), and she now seeks review.
The pertinent background events are largely not in
dispute. Rhomeo suffers from serious medical conditions, including
gout, chronic liver and heart disease, rheumatoid arthritis, and
kidney problems that led to a transplant in 2000. Tayag has looked
after him: transporting him to medical appointments, helping him
with household activities, preparing his food, aiding him in moving
around the house, providing medication, and giving psychological
comfort.
Tayag began working for Lahey as a health management
clerk in 2002 and received positive performance reviews. In 2003,
she became eligible for leave under Lahey's FMLA policy, and until
July 2006 Lahey consistently approved her requests for leave, which
typically lasted one or two days. In May 2006, without claiming
FMLA leave, Tayag used vacation time to travel with Rhomeo to
Lourdes, France--a major site for Roman Catholic pilgrimage and
reputed miraculous healings.
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In June 2006, Tayag submitted a vacation request form for
August 7 to September 22, 2006; her supervisor said this would
leave the department with inadequate coverage but, as Tayag had
indicated that her husband would be needing medical care, her
supervisor provided the paperwork for an FMLA leave request. On
July 8, Tayag requested FMLA leave to assist Rhomeo while he
traveled, but did not inform Lahey that the travel was for a
spiritual pilgrimage to the Philippines. Nor did she provide Lahey
with any contact information to reach her during the trip.
On July 11, 2006, Rhomeo underwent an angioplasty
procedure. That month, Tayag spoke to Susan Olsen--Lahey's
benefits administrator--about the FMLA request, and Olsen requested
new FMLA certification from Rhomeo's doctor. In early August,
Tayag gave Olsen a note and then a certification from Rhomeo's
primary care physician, Stephen Dong; the note stated that Rhomeo's
liver, kidney, and heart diseases "significantly affect his
functional capacity to do activities of daily living" and advised
that Tayag receive medical leave "to accompany Mr. Tayag on any
trips as he needs physical assistance on a regular basis."
Tayag also provided Olsen with the fax number of her
husband's cardiologist so Lahey could send the doctor a
certification form for completion. The cardiologist returned the
form on August 8, 2006, stating that Rhomeo was "presently . . .
not incapacitated" and that Tayag would not need leave. Olsen
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mailed Tayag letters on August 10 and 14 notifying her that the
leave was unapproved, and Lahey representatives left phone messages
at Tayag's home on August 8 and 17. Tayag did not receive any of
these messages because she was in the Philippines from August 7 to
September 22. Receiving no response, Lahey then sent a letter,
dated August 18, terminating her employment.
In the Philippines, during August and early September
2006, the Tayags went to Mass, prayed, and spoke with the priest
and other pilgrims at the Pilgrimage of Healing Ministry at St.
Bartholomew's Parish. From September 8 to 22, the Tayags visited
other churches and friends and family. While in the Philippines,
Rhomeo received no conventional medical treatment and saw no
doctors or health care providers. Tayag assisted him by
administering medications, helping him walk, carrying his luggage,
and being present in case his illnesses incapacitated him.
On April 30, 2008, Tayag filed suit against Lahey
alleging a number of claims,1 one being that her termination
violated the FMLA; only the FMLA claims are the subject of this
appeal. After discovery, Lahey moved for summary judgment on all
claims; Tayag moved for partial summary judgment on the FMLA
claims. The district court granted summary judgment in favor of
Lahey on all claims, determining as to the FMLA claims that the
1
Tayag also alleged violations of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213 (2006), Title VII of the
Civil Rights Act of 1964, id. §§ 2000e to 2000e-17, and state law.
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Tayags' trip was not "protected" under the statute because it was
effectively a vacation. Tayag v. Lahey Clinic Hosp., Inc., 677 F.
Supp. 2d 446, 452 (D. Mass. 2010). This appeal followed.
Orders granting summary judgment are reviewed de novo.
Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010).
Here, the issues turn on the interpretation of the FMLA. Tayag
makes two claims--interference with substantive rights and
retaliation for the exercise of those rights--that both hinge upon
whether the FMLA protects the type of trip taken by the Tayags.
See 29 U.S.C. § 2615(a); Colburn v. Parker Hannifin/Nichols
Portland Div., 429 F.3d 325, 331-32 (1st Cir. 2005); Hodgens v.
Gen. Dynamics Corp., 144 F.3d 151, 159-61 (1st Cir. 1998).
The FMLA entitles employees to twelve workweeks annually
"to care for the spouse . . . of the employee, if such spouse . . .
has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). The
leave "may be taken intermittently . . . when medically necessary,"
id. § 2612(b)(1), and if the leave "is foreseeable based on planned
medical treatment," the employee must make a reasonable effort to
schedule the treatment so that it does not unduly disrupt the
employer and must provide the employer with thirty days' notice
unless impracticable, id. § 2612(e)(2).
Tayag describes the travel as a series of "healing
pilgrimages" with incidental socializing. This comports with her
deposition, the district court made no finding directly to the
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contrary, and we will accept her characterization. Tayag properly
does not claim that caring for her husband would itself be
protected leave under the FMLA if the seven-week trip was for
reasons unrelated to medical treatment of Rhomeo's illnesses.2 So,
if the focus is on substantive protection, the result depends on
whether a "healing pilgrimage" comprises medical care within the
meaning of the FMLA.
Under the statute and associated regulations, the answer
is no. The statute defines "health care provider" as "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 . . . any other person determined by the Secretary to
be capable of providing health care services." 29 U.S.C. §
2611(6). Similarly, a "serious health condition" is "an illness,
injury, impairment, or physical or mental condition that involves
. . . inpatient care in a hospital, hospice, or residential medical
care facility; or . . . continuing treatment by a health care
provider." Id. § 2611(11).
2
See Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1048 (9th
Cir. 2005); Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1076
(9th Cir. 1999), cert. denied, 530 U.S. 1214 (2000). The inclusion
of "psychological comfort and reassurance," 29 C.F.R. § 825.116, in
the definition of care cannot extend to accompaniment of an ill
spouse on lengthy trips unrelated to medical care. (All citations
to the Code of Federal Regulations are to the July 1, 2006,
revision operative at the time of Tayag's FMLA leave request.)
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Faith healing is addressed solely in the regulation
identifying others "capable of providing health care services,"
which includes "Christian Science practitioners" subject to certain
conditions. 29 C.F.R. § 825.118. Christian Scientists reject
ordinary medical care as defined by the statute and so, as to a
Christian Scientist patient, there is no duplication either for
government insurance programs or for employers providing FMLA
leave. Tayag's husband gets ordinary medical care, and she has
taken full advantage of the FMLA to provide assistance to him in
connection with that care.
Further, Tayag does not invoke the Christian Science
exception to cover her situation--her husband is not a Christian
Scientist--but as the basis for a constitutional argument. Thus
she asserts summarily that, given the exception granted for
Christian Science practitioners,
it would be an unconstitutional distinction
between religions to state that a Catholic
priest is not covered. Both religiously
affiliated healing programs are aimed at
treating the illness and providing
psychological comfort.
This is hardly a serious treatment of a complex issue and is not
adequate to preserve the claim on appeal. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082
(1990). Even if the argument had been preserved, it would not be
likely to prevail in any form that assisted Tayag.
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Thus, when Children's Healthcare is a Legal Duty, Inc. v.
Vladeck, 938 F. Supp. 1466 (D. Minn. 1996), struck down a
counterpart Christian Scientist exception relating to Medicare and
Medicaid, id. at 1486, Congress adopted a new provision extending
the benefits of protection to care from "religious nonmedical
health care institutions" of "patients who choose to rely solely
upon a religious method of healing and for whom the acceptance of
medical health services would be inconsistent with their religious
beliefs," 42 U.S.C. § 1395x(ss)(1). The courts upheld this
solution.3
Even if a court felt free to impose such an extension
without legislation, it would do Tayag no good: she does not claim
that Rhomeo's religion forbids ordinary medical care, and she has
already taken FMLA leave a number of times to assist him in
connection with receiving such care. And it is hard to see how
more would be required: distinguishing among religions as such may
well be suspect; limiting FMLA coverage for faith healing trips to
those whose faith makes no other demands for medical assistance is
not self-evidently an improper discrimination. See note 3, above.
Tayag's claim of entitlement to FMLA leave also falls on
an independent ground. Lahey required certification by a health
care provider for FMLA leave, which is permitted. 29 U.S.C.
3
E.g., Kong v. Scully, 341 F.3d 1132, 1133-34 (9th Cir. 2003);
Children's Healthcare is a Legal Duty, Inc., v. Min De Parle, 212
F.3d 1084, 1088 (8th Cir. 2000), cert. denied, 532 U.S. 957 (2001).
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§ 2613. For intermittent leave, the certification must include
among other information "a statement that the employee's
intermittent leave . . . is necessary for the care of the . . .
spouse who has a serious health condition, or will assist in their
recovery, and the expected duration and schedule of the
intermittent leave." Id. § 2613(b)(1)-(4)(A), (7).
Intermittent leave periods may be of any length (less
than the twelve-week total allotment), 29 C.F.R. § 825.203(a), (d),
but the requested seven-week leave was different from the brief
leaves taken by Tayag over the previous four years and suggested by
earlier certifications. When Dr. Dong provided a new certificate
in August 2006, he included "coronary artery disease" for the first
time as a listed condition, but said only that Rhomeo's incapacity
would occur "intermittently" and for his "lifetime" and provided no
explanation as to why a seven-week leave would be needed. The
omissions gave Lahey "reason to doubt the validity of the
certification," 29 U.S.C. § 2613(c)(1), permitting Lahey to
designate another health care provider for a second opinion, id.4
4
Tayag argues that the second opinion was invalid because
"[t]here is no justification . . . supporting Lahey's assertion
that it had a right to insist on a certification from a particular
doctor." However, the statute states that the second health care
provider will be "designated or approved by the employer,"
29 U.S.C. § 2613(c)(1), saying only that the provider "shall not be
employed on a regular basis by the employer," id. § 2613(c)(2). No
other argument is made to us against the second certificate. Cf.
29 C.F.R. § 825.308(e) (limiting second opinions on
"recertifications").
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That certification, from Tayag's cardiologist, stated
that Rhomeo was "not incapacitated" and Tayag did not require
leave, although her presence could "possibly" provide psychological
comfort. Since nothing in Dr. Dong's certificate provided a basis
for a seven-week leave and the cardiologist had disavowed the need
for any leave, Lahey was justified in denying FMLA leave. See,
e.g., Stoops v. One Call Commc'ns, Inc., 141 F.3d 309, 314 (7th
Cir. 1998).
Even assuming dubitante that Dr. Dong's certification
adequately supports the leave, the statutory procedure in the event
of a conflict between certifying doctors would require joint
agreement on a third health care provider to give a binding final
opinion. 29 U.S.C. § 2613(d). At most Tayag might have been
entitled to a third opinion and "a reasonable opportunity to cure
any . . . deficiency" in certification raised by Lahey, 29 C.F.R.
§ 825.305(d), but Tayag's departure and failure to provide contact
information blocked such processes.
In sum, Tayag's seven-week absence was not protected
leave under the FMLA. Tayag's second claim--retaliation--is both
underdeveloped and confusingly framed; she says that the discharge
was retaliation for requesting and taking leave. Insofar as she is
asserting that she was discharged for taking leave, the claim fails
because her leave was not protected. See Orta-Castro v. Merck,
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Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 113-14 (1st Cir.
2006).
Requesting leave is also an FMLA-protected right, see
29 C.F.R. § 825.220(a)(1), for which retaliation conceivably could
be wrongful even where the leave itself was unprotected, see
Colburn, 429 F.3d at 336 n.10. But the discharge here was
expressly for taking improper leave--not for filing a leave
request--and no rational jury could find that the asserted and
adequate reason given was pretextual. See Hodgens, 144 F.3d at
166.
Affirmed.
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