Navarro Pomares v. Pfizer Corporation

United States Court of Appeals
For the First Circuit

No. 00-1856

GLADYS NAVARRO, A/K/A GLADYS NAVARRO POMARES, ET AL.,

Plaintiffs, Appellants,

v.

PFIZER CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Selya, Circuit Judge.

Manuel Porro-Vizcarra for appellants.
Pedro J. Manzano-Yates, with whom Fiddler Gonzalez &
Rodriguez, LLP was on brief, for appellee.

August 20, 2001
 SELYA, Circuit Judge. Faced with the arduous demands

of legislating for an increasingly complex society, Congress

often leaves interstitial details to selected administrative

agencies. Congress followed this praxis when it enacted the

Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-

2654, delegating implementation to the Secretary of Labor (the

Secretary). See id. § 2654.

Responding to this directive, the Secretary promulgated

extensive regulations. See 29 C.F.R. §§ 825.100-825.800. At

one point in the process, however, she caught the nearest way;

in lieu of tailoring the definition of terms such as

"impairment," "major life activities," and "substantially

limits" to suit the peculiar needs of the FMLA, the Secretary

simply co-opted existing definitions designed by a different

agency — the Equal Employment Opportunity Commission (EEOC) —

for use in connection with a different statute — the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. See 29

C.F.R. § 825.113(c)(2). Some perplexing difficulties lurk in

the shadows cast by this cross-reference, including questions

about the extent to which the EEOC's informal interpretations of

the borrowed definitions are binding in the FMLA context.

This appeal brings those difficulties into sharp focus.

It requires us to explore terra incognita — to date, no other

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court of appeals has grappled with the meaning of the term

"disability" under the FMLA — and set the parameters of a

mother's right to take an unpaid leave of absence in order to

care for her seriously ill adult child. The able district

judge, considering himself bound to defer unhesitatingly to an

EEOC interpretive guidance devised with the ADA in mind, found

that the mother had no such entitlement in the circumstances of

this case and, accordingly, granted the employer's motion for

summary judgment. Navarro Pomares v. Pfizer Corp., 97 F. Supp.

2d 208, 214 (D.P.R. 2000). We think that the court below

acquiesced too readily in this interpretive guidance. For FMLA

purposes, the guidance neither merits Chevron deference, see

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-43 (1984), nor possesses persuasive force. The

objectives and structure of the FMLA, and the scope of the

relief that it provides, require us to give effect instead to

the regulation as written. Doing so, we reverse and remand for

further proceedings.

I. BACKGROUND

Because the district court determined this case on

summary judgment, we recount the essential facts in the light

most favorable to the summary judgment loser. Suarez v. Pueblo

Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000).

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 Plaintiff-appellant Gladys Navarro Pomares (Navarro)

began working for Pfizer Corporation as a secretary in 1994. On

October 14, 1997, she requested an unpaid leave of absence until

January 5, 1998; her plan was to travel to Germany so that she

might minister to her adult daughter (Gladys Hernandez) and her

two grandchildren. At the time she made this request, the

appellant provided Pfizer with a note from her daughter's

attending physician which reported that "Mrs. Hernandez is

pregnant in 36th week. Because of high blood pressure bed rest

is recommended to carry the baby to full term. So she cannot

watch her other children."

Pfizer denied the appellant's request. She implored

the company to reconsider. On October 25, having received no

further response from her employer, the appellant departed for

Germany. On November 6, she received correspondence from Pfizer

directing her to return to work forthwith. The appellant

remained at her daughter's bedside and Pfizer terminated her

employment within the week.

Eleven months later, the appellant sued.1 She asserted

that Pfizer had denied her leave to which she was entitled under

1 Navarro's husband and their conjugal partnership joined as
parties plaintiff. Their claims are derivative of Navarro's
own, so for simplicity's sake we proceed as if she were the only
appellant.

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the FMLA and then had added insult to injury by cashiering her

for attempting to exercise her rights. When, thereafter, Pfizer

moved for brevis disposition, the district court determined that

the appellant was not entitled to FMLA leave and granted the

motion. Navarro Pomares, 97 F. Supp. 2d at 214.

On appeal, we consider the appellant's asseveration

that she raised a trialworthy issue anent her entitlement to

FMLA leave. Because she has not renewed her retaliation charge,

we deem that claim abandoned. See United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

II. STANDARD OF REVIEW

We review orders granting or denying summary judgment

de novo. Suarez, 229 F.3d at 53. The decisional path is well-

trodden, so we borrow an earlier description of how the

operative rule, Federal Rule of Civil Procedure 56, functions:

Once a properly documented motion has
engaged the gears of Rule 56, the party to
whom the motion is directed can shut down
the machinery only by showing that a
trialworthy issue exists. As to issues on
which the summary judgment target bears the
ultimate burden of proof, she cannot rely on
an absence of competent evidence, but must
affirmatively point to specific facts that
demonstrate the existence of an authentic
dispute. Not every factual dispute is
sufficient to thwart summary judgment; the
contested fact must be "material" and the
dispute over it must be "genuine." In this
regard, "material" means that a contested
fact has the potential to change the outcome

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 of the suit under the governing law if the
dispute over it is resolved favorably to the
nonmovant. By like token, "genuine" means
that the evidence about the fact is such
that a reasonable jury could resolve the
point in favor of the nonmoving party.

McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.

1995) (citations and some internal punctuation omitted).

Applying these tenets in a given case requires the

court to scrutinize the summary judgment record "in the light

most hospitable to the party opposing summary judgment,

indulging all reasonable inferences in that party's favor."

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). If no

genuine issue of material fact emerges, then the case may be

ripe for summary adjudication.

III. THE FMLA: AN OVERVIEW

The FMLA applies to private sector concerns that employ

fifty or more persons. 29 U.S.C. § 2611(4). Congress enacted

it as a means of alleviating the tension that so often exists

between the demands of earning a living and the obligations of

family life. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,

159 (1st Cir. 1998); Price v. City of Fort Wayne, 117 F.3d 1022,

1024 (7th Cir. 1997). To achieve this objective, the FMLA seeks

to balance authentic family needs and legitimate employer

interests. See 29 U.S.C. § 2601(b)(1), (3). This accommodation

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entails a set of entitlements for employees and a matched set of

rules for employers.

An employee becomes eligible for FMLA leave if he or

she has been employed by a covered employer for no less than a

year and has worked at least 1250 hours during the preceding

twelve months. Id. § 2611(2)(A). Once eligible, an employee

may take reasonable periods of unpaid leave for medical reasons,

for childbirth or adoption, or for the care of a spouse, parent,

or child who suffers from a serious health condition. Id. §

2601(b)(2). Leave periods are circumscribed: an eligible

employee may take a maximum of twelve workweeks of FMLA leave in

any twelve-month span. Id. § 2612(a)(1). Following such a

leave, an employee is entitled to reclaim his or her former job

(or some other position with equivalent pay, benefits, and

conditions of employment). Id. § 2614(a)(1).

Ministering to sick children falls within a section of

the FMLA that permits a period of leave "[i]n order to care for

the . . . son [or] daughter of the employee, if such . . . son

[or] daughter . . . has a serious health condition." Id. §

2612(a)(1)(C). In providing this protection, the FMLA

differentiates between children under eighteen years of age and

children eighteen years of age and older, defining a son or

daughter as

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 a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a
person standing in loco parentis, who is —
(A) under 18 years of age; or
(B) 18 years of age or older
and incapable of self-care
because of a mental or
physical disability.

Id. § 2611(12).2

The rules for employers are straightforward. In

writing the FMLA, Congress took pains to proscribe employers

from "interfer[ing] with, restrain[ing], or deny[ing] the

2
The FMLA's legislative history is not very precise as to
Congress's reason for elevating the bar for older children. The
sole pertinent passage in the legislative history reads:
The bill thus recognizes that in special
circumstances, where a child has a mental or physical
disability, a child's need for parental care may not
end when he or she reaches 18 years of age. In such
circumstances, parents may continue to have an active
role in caring for the son or daughter. An adult son
or daughter who has a serious health condition and who
is incapable of self-care because of a mental or
physical disability presents the same compelling need
for parental care as the child under 18 years of age
with a serious health condition.
S. Rep. No. 103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N.
3, 24. This rather amorphous paragraph admits of two possible
constructions. Our dissenting brother opts for the more
restrictive construction: that Congress wanted to afford
coverage only if a child's disability continues from an early
age until after he or she turns eighteen. For reasons stated in
this opinion, we deem it far more likely that the paragraph is
properly construed to reflect Congress's recognition that the
bond between parent and child endures long after the child turns
eighteen, and that the Act affords coverage whenever an adult
child suffers from a serious health condition and is incapable
of self-care as the result of a disability.

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exercise of or the attempt to exercise, any right provided" by

the law. Id. § 2615(a)(1). To this end, an employer may not

discharge or otherwise unfairly discriminate against an

individual for opposing practices made illegal by the FMLA. Id.

§ 2615(a)(2). An employer who flouts these rules can be held

liable for compensatory damages and, unless the violation

occurred in good faith, additional liquidated damages. Id. §

2617(a)(1)(A). Appropriate equitable relief, such as

reinstatement, also may be available. Id. § 2617(a)(1)(B).

IV. FRAMING THE THRESHOLD LEGAL ISSUE

In this case, it is undisputed that Pfizer was a

covered employer, that the appellant was an eligible employee,

that Hernandez was over eighteen years of age, and that 29

U.S.C. § 2611(12)(B) governed the appellant's claim of

entitlement to the requested leave. Hence, the appellant's case

depends upon whether her daughter (1) had a serious health

condition, (2) was incapable of self-care, and (3) was so

incapacitated because of a mental or physical disability. For

summary judgment purposes, the first two steps in this pavane

have been satisfactorily executed, but the third is problematic.

We start with the existence vel non of a "serious

health condition." This phrase can denote "an illness, injury,

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impairment, or physical or mental condition that involves . . .

continuing treatment by a health care provider." Id. §

2611(11). The regulations promulgated for the FMLA by the

Secretary supply further insight: one way to demonstrate a

serious health condition based on continuing treatment by a

health care professional is to show that the underlying

condition involves a period of incapacity due to pregnancy or

for prenatal care. See 29 C.F.R. § 825.114(a)(2)(ii).

The appellant's evidence suffices to create a genuine

issue of material fact as to whether her adult daughter was in

the throes of a serious health condition. The doctor's

certification, which plainly indicates that Hernandez's

incapacity was tied to her pregnancy, serves this purpose. It

follows that the appellant has made a showing adequate to

withstand summary judgment on the first of the three required

inquiries. See, e.g., Pendarvis v. Xerox Corp., 3 F. Supp. 2d

53, 55-56 (D.D.C. 1998) (denying summary judgment to employer in

an FMLA case on the ground that any pregnancy-related period of

incapacity, including morning sickness, constitutes a serious

health condition).

We turn next to the question of whether Hernandez was

able to care for herself. An individual is incapable of self-

care if she "requires active assistance or supervision to

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provide daily self-care in three or more of the 'activities of

daily living' (ADLs) or 'instrumental activities of daily

living' (IADLs)." 29 C.F.R. § 825.113(c)(1). The same

regulation defines ADLs to encompass "adaptive activities such

as caring appropriately for one's grooming and hygiene, bathing,

dressing and eating." Id. IADLs "include cooking, cleaning,

shopping, taking public transportation, paying bills,

maintaining a residence, using telephones and directories, using

a post office, etc." Id.

Considering the broad sweep of these definitions, the

doctor's note appears sufficient to create a genuine issue of

material fact as to Hernandez's capability to care for herself.

After all, her physician confined her to bed for the remainder

of her pregnancy. At a bare minimum, such a prescription would

appear to signal the patient's need for active assistance or

supervision in the performance of everyday activities such as

cooking, cleaning, shopping, and doing housework. Cf. Bryant v.

Delbar Prods., Inc., 18 F. Supp. 2d 799, 803 (M.D. Tenn. 1998)

("[I]t is only logical to conclude that [plaintiff's son] could

not cook, clean, shop or take public transportation . . . while

he was in the hospital."). It follows that the appellant has

made a showing adequate to withstand summary judgment on the

second of the three required inquiries.

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 The district court appropriately analyzed the case to

this juncture. It then pondered the third inquiry and ruled

that the appellant had alleged no facts sufficient to support a

reasoned conclusion that her daughter's impairment qualified as

a "disability" (and, therefore, that the appellant had failed to

raise a genuine issue of material fact regarding her eligibility

for FMLA leave). Navarro Pomares, 97 F. Supp. 2d at 214. This

is the nub of the case, and it presents a question of first

impression at the appellate level. We approach this question —

the meaning of the term "disability" under 29 U.S.C. § 2611(12)

— mindful that the crucial moment for determining if a

particular condition qualifies as a disability for FMLA purposes

is the time that leave is requested or taken. See, e.g.,

Bryant, 18 F. Supp. 2d at 804.

V. RESOLVING THE THRESHOLD LEGAL ISSUE

Congress left the task of defining "disability" to the

Secretary, see 29 U.S.C. § 2654, who reasonably concluded that

a disability is an "impairment that substantially limits one or

more of the major life activities of an individual." 29 C.F.R.

§ 825.113(c)(2). In so doing, she abjured any independent

effort to define the terms "impairment," "major life

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activities," and "substantially limits," instead referring the

reader, without explanation, to regulations issued by the EEOC

pursuant to the ADA. See 29 C.F.R. § 825.113(c)(2). Given the

provenance of these borrowed definitions, we think it is useful

to proceed by asking the same three questions as in an ADA

inquiry: (1) Is there a physical impairment? (2) What, if any,

major life activity is implicated? (3) Does the impairment

substantially affect the identified major life activity?

Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

A. Impairment.

The EEOC's regulations state that an impairment can be:

Any physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more of the following body
systems: neurological, musculoskeletal,
special sense organs, respiratory (including
speech organs), cardiovascular,
reproductive, digestive, genito-urinary,
hemic and lymphatic, skin, and endocrine.

29 C.F.R. § 1630.2(h)(1). High blood pressure is such an

impairment. See Murphy v. United Parcel Servs., Inc., 527 U.S.

516, 523-24 (1999). Because the source of an impairment is

irrelevant to a determination of whether that impairment

constitutes a disability, cf. Cook v. R.I. Dep't of MHRH, 10

F.3d 17, 24 (1st Cir. 1993) (stating that the Rehabilitation Act

— a precursor of the ADA — contains no language suggesting that

its prophylaxis is linked to how an individual became impaired),

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it makes no difference that the appellant's daughter's high

blood pressure was induced by her gravidity.

Even were the source of the impairment relevant, the

result would be the same. While pregnancy itself may not be an

impairment, the decided ADA cases tend to classify complications

resulting from pregnancy as impairments. See, e.g., Gabriel v.

City of Chicago, 9 F. Supp. 2d 974, 981-82 (N.D. Ill. 1998);

Hernandez v. City of Hartford, 959 F. Supp. 125, 130 (D. Conn.

1997); Cerrato v. Durham, 941 F. Supp. 388, 393 (S.D.N.Y. 1996).

But see Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109,

119 (D.N.H. 1995) (finding that neither pregnancy nor pregnancy-

related conditions are impairments under the ADA). We agree

with the majority view.3

These cases indicate to us that there is at least a

genuine issue of material fact as to whether the appellant's

daughter's high blood pressure constitutes an impairment under

the ADA. We discern no reason why we should not similarly

consider it a possible impairment for FMLA purposes.

3Even though we do not grant a high level of deference to an
EEOC interpretive guidance or policy manual in an FMLA context,
see text infra, we note the EEOC's recognition that
complications resulting from pregnancy can be impairments. See
EEOC Compliance Manual § 902.2(c)(3), at 5308 (1999). In taking
that position, the EEOC specifically cites hypertension brought
on by pregnancy as an example of a covered impairment. See id.

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Consequently, the appellant has made a sufficient showing, at

the summary judgment stage, on the impairment prong.

B. Major Life Activity.

We next must identify the impacted major life activity.

See Bragdon, 524 U.S. at 631. The appellant has made a prima

facie showing that her daughter was substantially limited in at

least three such pursuits: working, caring for herself, and

reproduction. For ADA purposes, the EEOC specifically

acknowledges that both working and caring for oneself are major

life activities, see 29 C.F.R. § 1630.2(i), and the Supreme

Court has held that reproduction so qualifies, see Bragdon, 524

U.S. at 637-39. We see no reason why this taxonomy should not

hold true under the FMLA as well. As a taxonomic matter, then,

the appellant has made a sufficient showing, for summary

judgment purposes, on the "major life activity" prong.

C. Substantially Limiting.

We now reach the crux of the parties' dispute: whether

the specified impairment substantially limits the identified

major life activity. See 29 C.F.R. § 1630.2(g)(1). We put the

major life activities of reproduction and working to one side4

4
In taking this step, we acknowledge that it might prove
difficult (or at least complex) for the appellant to show that
her daughter's reproductive activity was substantially limited.
Cf. Bragdon, 524 U.S. at 639-42. We likewise acknowledge that
surviving summary judgment by demonstrating an impairment which

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and focus on what we perceive to be the appellant's strongest

case: her emphasis on the major life activity of caring for

oneself.

According to the regulations, "substantially limits"

means that an individual is:

(i) Unable to perform a major life activity
that the average person in the general
population can perform; or
(ii) Significantly restricted as to the
condition, manner or duration under which an
individual can perform a particular major
life activity as compared to the condition,
manner, or duration under which the average
person in the general population can perform
that same major life activity.

Id. § 1630.2(j)(1). For ADA purposes, the factors to be

evaluated in assessing whether an individual is substantially

limited in a major life activity include (1) the nature and

severity of the impairment, (2) the duration or expected

duration of the impairment, and (3) the permanent or long-term

substantially limits the major life activity of working
involves, for purposes of the ADA, a specialized series of
showings anent the individual's inability to perform either a
class of jobs or a broad range of jobs in various classes. See
29 C.F.R. § 1630(j)(3); see also Gelabert-Ladenheim v. Am.
Airlines, Inc., 252 F.3d 54, 59-61 (1st Cir. 2001) (performing
"individualized inquiry" by which a court determines whether a
plaintiff is substantially limited in the activity of working);
Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 11-13 (1st Cir.
1999). The EEOC suggests avoiding this specialized inquiry
where an individual is substantially limited in another major
life activity. See 29 C.F.R. pt. 1630, App. § 1630.2(j).
Although the case at bar is an FMLA case, there is no reason not
to follow such a course, and prudence dictates that we do so.

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impact, or the expected permanent or long-term impact, of or

resulting from the impairment. Id. § 1630.2(j)(2).5

The appellant's position is that a factfinder, drawing

reasonable inferences in her favor from the doctor's note, could

conclude, consistent with the borrowed material, that

Hernandez's high blood pressure constituted an impairment that

substantially limited her in major life activities (including

the ability to care for herself). For summary judgment

purposes, the employer does not contest the facts that undergird

this claim, but, rather, posits that so fleeting an impairment

— one that may last no more than a matter of weeks — cannot

substantially limit a major life activity (and, therefore,

cannot constitute a covered disability). Accepting this

reasoning, the district court ruled that the appellant's

daughter's condition was "a temporary, non-chronic impairment []

of short duration" and that, therefore, it did not amount to a

disability. Navarro Pomares, 97 F. Supp. 2d at 214. Though

plausible at first blush, this ruling cannot survive close

scrutiny.

5
The distinction between duration and long-term impact is
not obvious on its face. The EEOC's interpretive guidance
states that duration "refers to the length of time an impairment
persists," while long-term impact "refers to the residual
effects of an impairment." 29 C.F.R. pt. 1630, App. §
1630.2(j).

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 In holding that a "temporary, non-chronic impairment"

did not constitute a disability, the lower court relied entirely

on an EEOC interpretive guidance, 29 C.F.R. Pt. 1630, App §

1630(h), at 396, thereby implicitly if not explicitly granting

Chevron deference to the EEOC's interpretation of its own rules.

This was error: although Chevron deference to an agency's

interpretive guidance is generally appropriate when a regulation

is ambiguous and the agency's resolution of the ambiguity is a

permissible construction of the regulation, Christensen v.

Harris County, 529 U.S. 576, 587 (2000), the Supreme Court

recently has clarified that not all agency interpretations merit

Chevron deference. See United States v. Mead Corp., 121 S. Ct.

2164, 2171 (2001). Pertinently, the Mead Court warned that

"where statutory circumstances indicate no intent to delegate

general authority to make rules with force of law, or where such

authority was not invoked," a court must review agency

interpretations under a less tolerant standard. Id. at 2177

(directing, in such circumstances, resort to the rule of

Skidmore v. Swift & Co., 323 U.S. 134 (1944)). In the last

analysis, then, such an agency interpretation is entitled to

respect only to the extent that the interpretation has the power

to persuade. Mayburg v. Sec'y of HHS, 740 F.2d 100, 106 (1st.

Cir. 1984) ("[U]nder Skidmore the agency ultimately must depend

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upon the persuasive power of its argument. The simple fact that

the agency has a position, in and of itself, is of only marginal

significance.") (Breyer, J.).

This is significant here because an EEOC interpretive

guidance issued pursuant to the ADA simply is not entitled to

Chevron deference when applied in the FMLA context. The EEOC

never had any authority to promulgate regulations pursuant to

the FMLA. To the contrary, Congress explicitly delegated to the

Secretary of Labor the sole authority to promulgate such

regulations. Even if the Secretary adopts certain EEOC rules as

her own (as happened here), she does not automatically adopt the

EEOC's informal interpretations of those rules. Moreover, the

EEOC itself has been granted no rulemaking power under the FMLA,

and therefore its interpretive guidance is certainly not

entitled to deference. Indeed, it borders on the Kafkaesque to

suggest that the EEOC, acting some three years before Congress

passed the FMLA, had invoked the authority delegated to the

Secretary of Labor and written interpretations to govern an as-

yet-unenacted statute. Accordingly, we decline to grant Chevron

deference to the EEOC's interpretive guidance and instead apply

the Skidmore standard.

Despite the concerns of our dissenting brother, this

seems to us a bedrock principle of administrative law. After

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all, a court cannot blindly defer to the interpretations of an

administrative agency simply because that agency has expertise

in a field that bears some relation to the statute at issue. To

warrant Chevron deference, Congress must actually delegate

authority to that agency, and the agency must invoke that

authority.

Where, as here, an agency's pronouncement (in this

instance, the EEOC's interpretive guidance) fails to meet these

criteria, an inquiring court must scrutinize that pronouncement

and question whether it is in harmony with the statute and the

regulations. See Joy Techs., Inc. v. Sec'y of Labor, 99 F.3d

991, 996 (10th Cir. 1996); (explaining that regulations should

be construed to mesh with the objectives of the statute that

they implement); Dunn v. Sec'y of USDA, 921 F.2d 365, 367 (1st

Cir. 1990) (similar); see also Martinez v. R.I. Hous. & Mortg.

Fin. Corp., 738 F.2d 21, 26 (1st Cir. 1984) (noting that "a rule

out of harmony with the statute is a mere nullity"). The

results of this inquiry will, in turn, determine the persuasive

force of the interpretive guidance. We turn, then, to the

question of whether the interpretive guidance passes Skidmore

muster when applied in an FMLA context.

Under Skidmore, we are constrained to weigh the

"thoroughness evident in [the guidance's] consideration, the

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validity of its reasoning, its consistency with earlier and

later pronouncements, and all those factors which give it power

to persuade, if lacking power to control." Skidmore, 323 U.S.

at 140. The EEOC's guidance does not fare well when measured

against these benchmarks.

We can find no thoroughness evident in the

consideration of the guidance. For one thing, an interpretive

guidance, much like "interpretations contained in policy

statements, agency manuals, and enforcement guidelines," is not

the product of notice-and-comment rulemaking or formal

adjudication. Christensen, 529 U.S. at 587. For another thing,

this guidance simply was not meant to apply in the FMLA context;

the EEOC promulgated it well before the FMLA was anything more

than a gleam in its sponsors' eyes. By like token, the guidance

is idiosyncratic; it has little consistency with other EEOC

pronouncements on the FMLA as the EEOC has made no such

pronouncements.

This interpretive guidance, moreover, cannot be

reconciled with the fundamental premise that a balancing test

should be pliant, the scale weighted differently in each case.

The Supreme Court has cautioned that "in the context of a rule

based on a multifactor weighing process[,] every consideration

need not be equally applicable to each individual case." FCC v.

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Nat'l Citizens Comm. for Broad., 436 U.S. 775, 808 n.29 (1978).

The regulation here at issue constructs just such a balancing

test, and the Supreme Court's caveat conduces to the view that

the regulation's list of factors should not be treated as some

sort of mandatory checklist (even in the ADA context). 6 The

Court's heavy emphasis on the individualized nature of what

constitutes a disability for purposes of the ADA, see

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999);

Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999);

Bragdon, 524 U.S. at 641-42, reinforces the desirability of a

flexible case-by-case approach.

6 This verity is made manifest by the inclusion of long-term
impact in its litany of factors to be considered when
determining the existence of a disability under the ADA. The
EEOC's gloss is that long-term impact refers to an impairment's
residual effects (e.g., a limp resulting from a spinal injury or
an improperly healed broken leg). 29 C.F.R. pt. 1630, App. §
1630.2(j). Clearly, this factor is not relevant in every ADA
case. For example, if an impairment is severe and of
indeterminate duration, a finding of disability would lie even
if long-term impact was entirely speculative. See, e.g.,
McKenzie v. Dovala, 242 F.3d 967, 972-73 (10th Cir. 2001)
(reversing summary judgment for employer; concluding that
plaintiff could show disability when impairment was severe and
of significant duration, despite lack of any evidence of long-
term impact). The lesson to be gleaned is that the three listed
factors can combine in a number of different ways, even to the
exclusion of one or more of them. This is all the more true
under the FMLA, where common sense counsels that the long-term
impact of a family member's serious health condition should have
little if anything to do with an employee's entitlement to an
unpaid leave that, by definition, cannot exceed twelve weeks.

-23-
 Indeed, the Court's ADA jurisprudence strongly suggests

that the three factors contained in the borrowed regulatory

definition of "substantially limits" should not be given equal

weight. When considering the definition of "disability" under

the ADA, the Justices have maintained a steady focus on the

present state of an individual's impairment. The Sutton Court

observed that "[b]ecause the phrase 'substantially limits'

appears in the Act in the present indicative verb form, we think

that language is properly read as requiring that a person be

presently — not potentially or hypothetically — substantially

limited in order to demonstrate a disability." Sutton, 527 U.S.

at 482. This keen attention to the statute's verb tense is

persuasive evidence that an individual's present, actual state

(rather than a hypothetical, projected state) is paramount in

determining whether he or she suffers from a disability. In

turn, this designated point of reference militates against

according talismanic effect to factors such as duration and

long-term impact, which may require the factfinder to

hypothesize as to the future course of the impairment. Accord

Katz v. City Metal Co., 87 F.3d 26, 30-32 (1st Cir. 1996)

(reversing directed verdict for employer on ADA claim even

though plaintiff had presented almost no evidence as to the

duration of his impairment); EEOC Compliance Manual § 902.4(a),

-24-
at 5311 (1999) (calling the "extent to which an impairment

restricts one or more of an individual's major life activities"

the hallmark of a disability under the ADA, and noting that the

impairment's duration is no more than a "secondary factor that

may affect the analysis") (emphasis supplied). The mechanistic

assumption that all the enumerated factors invariably must be

present before an impairment can be termed "substantially

limiting" in an ADA case is, therefore, unfounded. The argument

against the assumption is even more cogent in an FMLA case.

Most importantly, the EEOC interpretive guidance cannot

be applied to the FMLA because it clashes with the underlying

purposes of the statute. The ADA and the FMLA have divergent

aims, operate in different ways, and offer disparate relief.

These dissimilarities argue convincingly that the trio of

factors – particularly duration – must be treated somewhat

differently in the FMLA context than in the ADA context. Cf.

Chevron, 467 U.S. at 863-64 (finding definition of “source” to

be flexible and approving EPA’s varying interpretations of it in

different contexts); Stowell v. Sec'y of HHS, 3 F.3d 539, 542

(1st Cir. 1993) (deeming it "apodictic that Congress may choose

to give a single phrase different meanings in different parts of

the same statute").

-25-
 Two salient considerations fortify this conclusion.

First, the concept of disability serves a much different

function in the ADA than in the FMLA. Where the ADA is

concerned, a finding of disability is the key that unlocks the

storehouse of statutory protections. Title I of the ADA

provides that a covered employer may not discriminate against a

qualified individual with a disability because of that

disability. 42 U.S.C. § 12112(a). This means that the employer

must, inter alia, make "reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability" as long as that disability

persists, unless and until those accommodations impose an undue

hardship on the employer. Id. § 12112(b)(5)(A). Such

accommodations can take various forms, and the duty to

accommodate is an ongoing responsibility that is not exhausted

by a single effort on the employer's part. García-Ayala v.

Lederle Parenterals, Inc., 212 F.3d 638, 648 n.12 (1st Cir.

2000). Given the centrality of a finding of disability under

the ADA and the panoply of rights and responsibilities that such

a finding triggers, it makes sense to insist that, in most

cases, an impairment have an extended duration before it will be

deemed so limiting as to constitute a disability.

-26-
 In contrast, the only time that the concept of

disability becomes relevant under the FMLA is in the relatively

rare instance in which an employee seeks FMLA leave to care for

a seriously ill child over the age of eighteen. Even then, the

existence vel non of a disability simply provides a partial

answer to the question of whether the employee is entitled to

leave. See 29 U.S.C. §§ 2612(a)(1)(C), 2611(12)(B). The minor

role that the disability determination plays in the context of

the FMLA — one of three criteria to be met in respect to the

infirmity of an adult child before a modest unpaid leave can be

taken — indicates that very little weight should be placed on

the duration of an impairment. This is especially so since the

duration of the impairment is not even likely to determine the

precise term of an FMLA leave, which is far more apt to be

measured by how long the child's serious health condition lasts

or how long the child is incapable of self-care. See, e.g.,

Bryant, 18 F. Supp. 2d at 804 (reporting that while son's

disabling kidney condition persisted over a period of years,

plaintiff's FMLA leave was only part of one day).

The second consideration that leads us to believe that

factors such as duration must be accorded reduced significance

in the FMLA context is that the FMLA deals in much lower levels

of employer engagement and employee rewards than does the ADA.

-27-
For one thing, the FMLA implicates shorter time frames: an

employee may qualify for FMLA leave to care for a child under

eighteen merely by showing that the child suffers from a serious

health condition, which, as defined, can be an illness that

lasts as little as four days. See 29 U.S.C. § 2612(a)(1)(C); 29

C.F.R. § 825.114(a)(2)(i); see also Brannon v. Oshkosh B'Gosh,

Inc., 897 F. Supp. 1028, 1037 (M.D. Tenn. 1995) (finding that a

child who had a fever, was taken to a doctor, and stayed home

from day care from Friday through Tuesday had a serious health

condition within the purview of the FMLA). For another thing,

the maximum annual benefit under the FMLA is twelve weeks of

unpaid leave, see 29 U.S.C. § 2612(a)(1), whereas reasonable

accommodations under the ADA can last for years on end. Finally,

the obligatory interactive process that is a staple of the ADA,

see, e.g., Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir.

1998), is entirely foreign to the FMLA. We mention these

contrasting levels of engagement and reward because we think it

highly unlikely that, with so much less at stake under the FMLA,

Congress would have required FMLA litigants to make the same

durational showing as ADA litigants.

Having established that the differences between the ADA

and the FMLA render the durational factor less important under

the latter statute, we turn to the purpose of the FMLA and the

-28-
light that it sheds on that factor's proper role. A regulation

must harmonize with the purpose of the statute it implements.

See Grunbeck v. Dime Sav. Bank, 74 F.3d 311, 336 (1st Cir. 1996)

("[C]ourts will reject an agency interpretation which conflicts

with congressional intent."). The FMLA's primary purposes are

"to balance the demands of the workplace with the needs of

families, to promote the stability and economic security of

families, and to promote national interests in preserving family

integrity." 29 U.S.C. § 2601(b)(1). Those objectives would be

frustrated by reading the implementing regulations through the

prism of the EEOC's interpretive guidance, for this would impose

a rigid requirement that an employee must prove that an

impairment is long-lasting before it can qualify as

substantially limiting (and, thus, furnish the basis for FMLA

leave).

We illustrate this point with a practical example. A

worker who seeks to take FMLA leave to care for a child often

does so in response to a crisis situation. See, e.g., Caldwell

v. Holland of Tex., Inc., 208 F.3d 671, 673 (8th Cir. 2000)

(three-year-old son's sudden ear infection); Bryant, 18 F. Supp.

2d at 802 (adult son's unanticipated kidney failure). In many

instances, the emergency will have abated by the time that the

duration of the child's impairment can be ascertained. If a

-29-
hard-and-fast durational requirement is enforced, an employee

will be effectively prevented from taking family leave to care

for an adult child until it can be established that the child's

problem will have an adequate duration. By then, the crisis may

well have passed.

Such a scenario would place an employee with a sick

adult child between a rock and a hard place, forcing him or her

to choose between employment demands and family needs. This

would run at cross purposes with the FMLA's goal of reassuring

workers that "[w]hen a family emergency arises . . . they will

not be asked to choose between continuing their employment, and

meeting their personal and family obligations." 29 C.F.R. §

825.101. We do not believe that Congress intended to create so

illusory a benefit.

The foregoing analysis of the purpose of the FMLA, its

structure, and the relief it provides leads us to conclude that

— as the borrowed definition provides — the duration of an

impairment is one of several factors that should be considered

in determining the existence of a disability under the FMLA. We

also conclude, however, that Congress did not intend that the

impairment always be shown to be long-lasting. This last

conclusion comports with the major goals of the statute while at

the same time respecting Congress's clear intent to set a higher

-30-
bar for a parent's leave entitlement to care for a child

eighteen years of age or older. See 29 U.S.C. § 2611(12). All

that is required to ground a leave request vis-à-vis a younger

child is that the child have a serious health condition, see id.

§§ 2612(a)(1)(C), 2611(12)(A), which can be an illness lasting

as little as four days, see 29 C.F.R. § 825.114(a)(2)(i). In

comparison, to be eligible for leave to care for an older child,

the child not only must have a serious health condition but also

must lack the capacity to care for himself or herself due to a

disability (which requires demonstrating an impairment,

identifying a major life activity, and showing how the

impairment substantially limits the major life activity). See

29 U.S.C. § 2611(12)(B); 29 C.F.R. § 825.113(c)(2). Thus, we do

not "overlook[]," as our dissenting brother charges, that

Congress intended a meaningful consequence to attach to its use

of the word "disability" in 29 U.S.C. § 2911(12)(B). Rather, we

recognize that although the regulation, 29 C.F.R. §

825.113(c)(2), properly interpreted (i.e., without regard to the

EEOC's interpretive guidance), does not eliminate duration as

relevant factor, it leaves room for an impairment of modest

-31-
duration to be regarded, in some cases, as "substantially

limiting" for FMLA purposes.7

VI. DECIDING THE APPEAL

We now return to the case at hand. At this point, we

crystalize the insights derived from our investigation into the

nuances of administrative law and the comparative jurisprudence

7
We wish to make clear that even if Chevron applied, we
still would not defer to the EEOC interpretive guidance because
the regulation in question is not ambiguous. See NLRB v.
Beverly Enterps-Mass., Inc., 174 F.3d 13, 22 (1st Cir. 1999)
("Thus, if the legislative intent is clear, we do not defer to
the agency and we end the Chevron analysis at step one."). The
regulation clearly sets forth a balancing test. Under Supreme
Court precedent, this does not permit deference to an agency's
guidance on how such a balance should be calibrated. In
Christensen, for example, the Court examined the validity of an
interpretation of a regulation promulgated by the Secretary of
Labor under the Fair Labor Standards Act. The regulation
provided that "[an] agreement or understanding may include other
provisions governing the preservation, use, or cashing out of
compensatory time so long as these provisions are consistent
with [the applicable statute]." 29 C.F.R. § 553.23(a)(2)
(emphasis supplied). The Court concluded that "[t]he text of
the regulation itself indicates that its command is permissive,
not mandatory," and thus refused to defer to an opinion letter
issued by the Secretary advising that this regulation required
employers to include a compelled use policy in an agreement.
Christensen, 529 U.S. at 588. So it is here: the text of the
regulation, 29 C.F.R. § 825.113(c)(2), quoted supra, permits a
court to weigh the duration of an impairment as one of three
factors to determine the severity of a putative disability. As
such, it is unambiguous, and the EEOC interpretive guidance on
how such a balance should be weighed is not entitled to
deference.

-32-
of the ADA and the FMLA. We distill these insights into a

tripartite rule: (1) Courts facing the question, under the

FMLA, of whether an adult child’s impairment substantially

limits a major life activity should apply the Secretary's

borrowed regulation, 29 C.F.R. § 825.113(c)(2), as written,

ignore the EEOC's unpersuasive interpretive guidance (crafted

for use in connection with a different statute), and consider

(a) the nature and severity of the impairment, (b) its expected

duration, (c) its anticipated long-term impact, and (d) any

other relevant factors. (2) This assessment must be performed

on a case-by-case basis, balancing all factors in light of the

FMLA’s purpose, structure, and provisions for relief. See

O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir. 1996)

(emphasizing the need to afford statutes a practical,

commonsense reading that gives due weight to design, structure,

purpose, and overall language). (3) The requisite test is a

balancing test: apart from the severity of the impairment, no

one factor is indispensable to finding that a disability exists

for FMLA purposes.

Applying this rule, we hold that the provisions of 29

U.S.C. § 2611(12)(B) may be satisfied by various combinations of

factors. One such permissible combination entails, at least in

-33-
certain circumstances, a showing that the employee's adult child

is suffering from a severe impairment which has a modest

projected duration and an as-yet-unquantified long-term impact.8

The case before us fits within the contours of that category.

It follows that the court below improvidently granted summary

judgment for Pfizer. We expound on this conclusion.

High blood pressure is, by its nature, a serious

impairment. Given that the attending physician ordered

Hernandez confined to bed, a factfinder reasonably could regard

its manifestation as severe. As to duration, the appellant

provided evidence that Hernandez's high blood pressure would

last at least to the end of her pregnancy, an interval of

several weeks. Long-term impact hardly seems relevant to the

appellant's leave request, see supra note 6, but in all events,

Hernandez’s condition arguably might persist after childbirth

and have a lasting impact. Crediting this evidence, as we must

at the summary judgment stage, the record seems adequate to

support a finding — although it surely does not compel one —

that the appellant's daughter had a "disability" within the

purview of the FMLA.

8
Other, equally valid, combinations of factors are possible,
depending on the circumstances of particular cases.

-34-
 We summarize succinctly. Taking the evidence as it

stands, drawing all reasonable inferences in the appellant's

favor, and applying the appropriate legal standard, there is a

jury question as to whether Hernandez's high blood pressure

substantially limited her in the major life activity of self-

care. From the evidence, a jury could find that, at the time

the appellant requested leave, her bedridden daughter was

"[s]ignificantly restricted as to the . . . manner" in which she

could perform the major life activity of self-care "as compared

to the . . . manner [in] which the average person in the general

population [could] perform that same major life activity." 29

C.F.R. § 1630.2(j)(1)(ii). The jury also could find that

Hernandez's condition, though not proven to be of extremely

protracted duration, threatened to persist long enough to

qualify her as disabled for purposes of the FMLA. Consequently,

the lower court erred in granting summary judgment.

VII. CONCLUSION

We need go no further. Reading the statutory text and

the applicable regulation with an eye toward congressional

purpose and practical consequences, and disregarding the EEOC's

interpretive guidance, see Mead, 121 S. Ct. at 2177; Skidmore,

323 U.S. at 139-40, we hold that the district court's decision

-35-
overstates the importance of the durational element to the

determination of the existence of a disability under the FMLA.

Since the summary judgment previously entered in the employer's

favor hinged on that overstatement, it must be set aside.

Reversed and remanded.

— Dissenting Opinion Follows —

-36-
 CAMPBELL, Senior Circuit Judge, dissenting. While my

colleagues’ result is humanly appealing, I cannot agree with it.

It seems to me to run counter to proper standards of legal

analysis and to substitute judicial discretion for that

conferred upon the Secretary of Labor. I would affirm the

district court.

I.

Appellant complains that her employer violated the

Family Medical Leave Act (FMLA or the Act) by refusing to grant

leave so that she could look after her pregnant daughter. In

her thirty-sixth week of pregnancy, the daughter had been placed

on bed rest because of a pregnancy-induced hypertension.

Because the district court found the daughter was not “disabled”

-- a threshold requirement for FMLA leave in order to care for

an adult child, “disability” being defined in the Act’s

regulations in terms of ADA criteria -- the district court

dismissed appellant’s FMLA claim. My colleagues now reverse

that judgment. They do not suggest that, under ADA standards,

appellant’s daughter was disabled, but rather they hold that the

FMLA requires a more relaxed standard of disability than does

the ADA -- one with little or no durational requirements. I

-37-
think my colleagues both misread the FMLA and improperly

override the authority given by Congress to the Secretary of

Labor to prescribe regulations in this area.

To explain, I begin with the words of the statute. In

enacting the FMLA, Congress specifically distinguished between

entitlements of leave to care for minor children and of leave to

care for adult children. The Act broadly grants leave rights to

employees “[i]n order to care for the spouse, or a son,

daughter, or parent, of the employee, if such spouse, son,

daughter, or parent has a serious health condition,” 29 U.S.C.

§ 2612(a)(1)(C). However, the Act then proceeds to provide a

limiting definition of who may be considered to be a son or a

daughter: “[S]on or daughter” is defined as the employee’s child

who is “(A) under 18 years of age; or (B) 18 years of age or

older and incapable of self-care because of mental or physical

disability.” 29 U.S.C. § 2911(12)(emphasis supplied). The

statute’s clause (B) thus imposes a significant limitation upon

the class of adult children for whose care parental leave is

mandated. Leave is provided solely to care for those adult

children fitting within the category of children who are

“incapable of self-care because of ... disability.” Notably,

the statute imposes no such disability limitation in respect to

-38-
leaves to care for minor children, spouses and parents. While

the majority brushes aside as “weak” the above limitation

pertaining to adult children only, the fact that it was crafted

as part of the very definition of the class for whose care

leaves may be granted accentuates its importance. Whether or

not we like the limiting phrase in § 2911(12)(B), we cannot

responsibly ignore or downplay it. See Massachusetts Ass'n of

Health Maintenance Organization v. Ruthardt, 194 F.3d 176, 181

(1st Cir. 1999) ("[A]ll words and provisions of statutes are

intended to have meaning and are to be given effect, and no

construction should be adopted which would render statutory

words or phrases meaningless, redundant or

superfluous.")(internal quotation marks omitted).

The Senate Report relating the legislative history of

the FMLA illuminates Congress’s reasons for inserting this

unique provision, which limits leave to parents to care for

their seriously ill adult children to only those children

“incapable of self-care because of ... disability.” This

legislative history deserves repeating, ante note 2, as it

clarifies the critical issue in this appeal: the significance

and meaning of the phrase “incapable of self care because of

mental or physical disability.” The majority simply describes

-39-
this history as “amorphous” and thereafter treats the Senate

Report as essentially without import. Nevertheless, the Senate

Report states:

The bill [FMLA] thus recognizes that in
special circumstances, where a child has a
mental or physical disability, a child’s
need for parental care may not end when he
or she reaches 18 years of age. In such
circumstances, parents may continue to have
an active role in caring for the son or
daughter. An adult son or daughter who has
a serious health condition and who is
incapable of self-care because of a mental
or physical disability presents the same
compelling need for parental care as the
child under 18 years of age with a serious
heath condition.

S. Rep. No. 103-3, at 22 (1993), reprinted in 1993 U.S.C.C.A.N.

3, 24.

The most obvious and reasonable construction of the

above quoted passage -- a reading that the Secretary of Labor’s

regulations faithfully mirror, infra -- indicates that Congress

wanted to restrict leave benefits for parents to care for their

adult children 18 and older to only those special cases where

because of some mental or physical disability the adult child is

or remains especially dependent on the parent in the same ways

-40-
minor children typically are dependent.1 In other words, for the

adult child to trigger leave rights, it is not enough that he or

she be seriously ill; the child must also be “incapable of self-

care because of ... disability,” a factor Congress deemed

essential to place the adult child within a special class

deserving of parental care for FMLA leave purposes. The Senate

Report explains that in such cases “a child’s need for parental

care may not end [as presumably happens otherwise] when he or

she reaches 18 years of age. ... [And] parents may continue to

1
This is in contrast to the statute’s providing leave for
spouses to take care of their seriously ill spouse without
limitation and for adult children to take care of their
seriously ill parent also without limitation. Although some
might believe the duty to care for one’s adult child should be
equal or similar to one’s duty to care for one’s spouse or
parent, Congress plainly did not see matters that way.
Congress seemed to have faced something of a dilemma in the
case of parental leave for adult children. The statute for the
first time forced qualifying employers to grant leave to their
employees in order to assist family members. Some members of
Congress might have felt that employers should not be forced to
grant any leave at all for care of adult children because of the
adult child’s presumed independence. And, if leave were to be
granted, it might be believed that a line should be drawn
between those adult children qualifying for parental care and
the more usual case of those who should be expected to look
elsewhere. The concept of “disability” appears to have been
harnessed as a way to resolve this dilemma, the idea being that
an adult who is legally disabled (thus having a serious
impairment that continues over time) belongs to a more dependent
category justifying continuing parental care to the employer’s
detriment, whereas an adult child who is seriously ill but is
not deemed disabled does not.

-41-
have an active role in caring for the son or daughter.” Id. It

is clear from this passage that Congress contemplated an adult

child who is especially dependent over some period of time on

parental care for physical or mental reasons. 2 This is in

contrast to the typical scenario in which, at and after age 18,

a child may be regarded as having achieved substantial

independence and self-sufficiency so as to be able to live on

her own, support herself, and be ministered to by others than

her parents. By restricting parental leaves to unemancipated

minor children and a restricted class of adult children who may

still require some sort of on-going parental care, Congress was

imbuing the word “disability” with a serious and severe

consequence, one which, however, the majority simply overlooks

in its assumption that the sole and overriding purpose of the

FMLA is to provide a liberal leave policy in all instances.

2 The majority misconstrues my position as wanting “to
afford coverage only if a child’s disability continues from an
early age until after he or she turns eighteen.” While certain
language in the Senate Report could lead to that interpretation
(e.g., “a child’s need for parental care may not end when he or
she reaches 18 years of age”), a more reasonable reading is
simply that at the time leave is sought, the child is disabled
in the ADA sense, see infra, whether or not continuously
disabled.

-42-
 For the above reasons, I believe that Congress’s

intentions along the lines indicated are amply signaled both in

the statutory language and the Senate Report. The FMLA,

however, leaves to the Secretary of Labor a major role in the

interpretation of Congress’s wishes, hence I turn next to the

Secretary’s regulations. The FMLA provides that the “Secretary

of Labor shall prescribe such regulations as are necessary to

carry out ... this chapter....” 29 U.S.C. § 2654. In

promulgating regulations to enforce congressional intent,

including the difference in the statute between leave granted to

care for minor children and leave granted to care for adult

children, the Secretary of Labor has defined the relevant terms

“incapable of self-care” and “physical or mental disability.”

And, in so doing, the Secretary has construed the terms

precisely in accord with the congressional intent one would

glean from the construction of the statute and the Senate Report

I have just set forth.

As the majority notes, with regard to the term

“physical or mental disability,” instead of defining from

scratch the term “disability” for the purposes of the FMLA, the

Secretary has borrowed the statutory ADA definition as further

-43-
refined in regulations issued by the EEOC pursuant to the ADA.

The Secretary states in her FMLA regulations that

physical or mental disability means a
physical or mental impairment that
substantially limits one or more of the
major life activities of an individual. [The
ADA definition.] Regulations at 29 C.F.R. §
1630.2(h),(i), and (j), issued by the Equal
Employment Opportunity Commission under the
Americans with Disabilities Act ... define
these terms.

29 C.F.R. § 825.113(c)(2)(2000)(emphasis supplied). The

relevant ADA provision and EEOC regulations are undoubtedly

restrictive in their scope with regard to the kinds and

durations of impairments that will qualify as disabilities.3

Nonetheless, as already discussed above, Congress’s very purpose

in using the term “disability” seems to have been to limit the

3 The ADA defines disability as, among other things, “a
physical or mental impairment that substantially limits one or
more of the major life activities of an individual.” 42 U.S.C.
§ 12012(2)(A). The relevant EEOC regulations state:

The following factors should be considered in
determining whether an individual is substantially
limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the
impairment; and
(iii) The permanent or long term impact, or the
expected permanent or long term impact of or resulting
from the impairment.

29 C.F.R. § 1630.2(j)(2)(ii),(iii).

-44-
class of adult children for whose benefit leave was mandated.

The ADA and EEOC definitions achieve this task very reasonably.

They effectuate congressional intent to differentiate between

entitlement to leave to care for, on the one hand, a narrower

class of adult children whose long-term afflictions limit major

life activities, and, on the other hand, all seriously ill minor

children whether or not disabled.

And in cross-referencing to the ADA and to the EEOC

regulations, the Secretary achieves advantages that would be

lost were she to have defined the term “disability” by new and

separate regulations tailored solely to the FMLA. By cross-

referencing, the Secretary makes use of interpretations

developed and being developed in another relevant on-going

regulatory scheme, thereby achieving more precise standards in

what -- given the vagueness of the term “disability” -- could

otherwise be a chaotic area of interpretation.

Given what Congress was attempting to accomplish by

creating in the FMLA a narrower, more needy class of adult

children, I see nothing wrong or unreasonable with the

Secretary’s giving the FMLA term “disability” the exact same

meaning as provided in the ADA and its interpretive regulations.

The ADA pre-dates the FMLA and is perhaps the primary federal

-45-
statute dealing with the subject of disability. Its

incorporated concept of a relatively long-term physical or

mental condition ties precisely into what the FMLA intended when

separating out all adult children whose need for parental care

has ended from those whose “parents may continue to have an

active role” in their care. S. Rep. No. 103-3, at 22 (1993),

reprinted in 1993 U.S.C.C.A.N. 3, 24. Over time, the ADA

definition has been refined by regulation and administrative and

judicial precedent so that by now its meaning in many (or even

most) situations has become relatively clear. The Secretary’s

cross-reference to the ADA’s definition of “disability” with its

concomitant history and administrative and judicial guidance

makes it possible for employers, employees and tribunals

interpreting the FMLA to refer to well-established coherent

principles and precedent, providing predictability and clarity

to a term “disability” that, by itself, is anything but plain.

Viewed this way, the Secretary’s borrowing of ADA and

EEOC criteria to define “disability” under the FMLA makes

eminent good sense. These criteria, it is true, will limit

leave to parents whose sons or daughters suffer from more

chronic, fairly long-term physical and mental handicaps.

Borrowing and faithfully applying to the FMLA the ADA’s

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disability definition means that parental leaves will not be

available in all situations where leaves, from a purely

compassionate point of view, may seem equally well-justified –

as where, for example, an adult child needs but lacks care, yet

falls short of having a “disability” within the definition of

that term in the ADA and the applicable EEOC regulations. But,

given both the plain statutory language and Congress’s intent as

explained in the Senate Report in inserting the limiting phrase

“incapable of self-care because of mental of physical

disability,” I cannot see how one can contend that the

limitation inherent in borrowing from the ADA and its precedent

runs counter to the objectives of the FMLA.

I therefore believe that the district court’s analysis

and judgment is correct on the facts of this case. The

pregnancy-related medical condition of appellant’s daughter

lacked sufficient duration to be a “disability” as that term is

used within the ADA as further defined by the EEOC regulations.

Indeed, my colleagues do not seem to contend otherwise. That

should end the matter.

Instead, however, my colleagues insist that because

this is an FMLA case, a different, more relaxed durational

standard of their own invention needs to be read into the ADA

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and EEOC criteria. This they term a “balancing” process. But

balancing usually means balancing the facts of a case against

statutory and regulatory standards, not altering the latter at

will. In any case, I see no contradiction between the intent of

Congress when using the term “disability” in the FMLA context

and the ADA “disability” definition and related EEOC criteria as

used in an ADA context. Curiously, my colleagues do not suggest

that borrowing the ADA definition of “disability” and related

EEOC regulations constituted legal error by the Secretary. They

accept the Secretary’s borrowing from the ADA and EEOC but then

say the same regulations should mean different things depending

on whether used in an ADA case or in an FMLA case. Not only do

I find this incomprehensible, but I can see no reason for

attempting such an exercise given the close fit, see supra,

between Congress’s reasons for using the term “disability” in

the FMLA and the meaning of that term as developed in ADA case

law.

In taking a different view, my colleagues point only

to the FMLA’s broadly stated, and by no means self-explanatory,

statutory purpose of balancing family needs with employer

interests. But striking the balance so as to favor only persons

disabled under ADA criteria appears to meet this very principle

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given the statutory language and the intent of Congress as set

out in the Senate Report. Of course, one may still argue as a

matter of personal preference that it would be better to strike

the balance differently or more in favor of the family, but it

is not our business as judges to choose among competing policies

where the statutory text, the legislative history, and the

Secretary’s interpretation are all so plainly in accord.

In effect, my colleagues are instructing courts to turn

their backs on the Secretary’s entirely rational invocation of

the ADA standards – standards which, if applied as construed in

ADA cases, reasonably effectuate congressional purpose in using

the term “disability” here. The result of the majority’s

opinion will be simply to destabilize the meaning of the FMLA in

an area requiring clarification, not greater obscurity. The

only future guidance the majority gives to litigants and the

courts is to “balance” and presumably to follow the majority’s

preference for granting leaves liberally to all parents with

sick adult children. This approach effectively reads the phrase

“incapable of self-care because of ... disability,” as applied

solely to adult children, out of the FMLA. I see no proper

legal justification for this position.

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 II.

To be sure, in reversing the district court, the

majority says that it does not dispute the Secretary’s

importation of the ADA and its concomitant EEOC regulations into

the FMLA. The majority says it takes issue only with the

district court’s consideration of the EEOC’s interpretive

guidance in its analysis of the plaintiff’s entitlement to FMLA

leave. In particular, the majority contends that it was error

for the district court to rely on the EEOC’s interpretive

guidance that a “temporary, non-chronic impairment” does not

constitute a disability. 29 C.F.R. Pt. 1630, App § 1630(h), at

396. Such reliance was error, says the majority, because the

EEOC’s interpretive guidance, issued pursuant to its own

regulations promulgated to enforce the ADA, merits no deference

in the context of another, distinct statute, such as the FMLA.

Ante at 16-17 (citing to classic administrative law

jurisprudence, such as Chevron and Skidmore, as modified by

recent Supreme Court cases, such as Mead and Christensen). In

so holding, the majority seems to imply either that the EEOC’s

interpretive rule flies in the face of the FMLA or that absent

reliance on the EEOC guidance, the result below would have been

different. I see no basis for either position. As already

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suggested, and as further discussed, the ADA’s durational

concepts, as clarified in the EEOC’s interpretive guidance, mesh

well with the purpose of the term “disability” as used in this

part of the FMLA. Moreover, I fail to see how one can reject

the EEOC’s interpretive guidance without also rejecting the ADA

or the EEOC’s regulation, both of which the Secretary expressly

adopts and which my colleagues do not question.4 The result of

the majority’s opinion, even absent consideration of the EEOC

interpretive guidance, is to read out of the Secretary’s and the

EEOC’s regulations any requirement that the plaintiff-parent

provide some evidence of the duration and long-term impact of

4 The majority’s holding that the EEOC interpretive guidance
deserves no deference, while the Secretary of Labor’s
regulations (which include her adoption of the EEOC regulations)
does deserve deference, makes little sense to me. Although I
understand the majority’s reasoning, following Mead, that
interpretive guidelines of the kind at issue here are often not
due anything but Skidmore deference, I see no basis for
distinguishing in this case between the EEOC interpretive
guidance and the EEOC regulations. If the Secretary had really
meant to exclude the former, surely she would have so indicated;
nothing in the Secretary’s FMLA regulations suggests such a
bizarre separation. Where we all agree to defer to the
Secretary’s choice of definitions, taken, in relevant part from
the EEOC regulations promulgated under another statute, how can
we choose to defer only to her choice of the EEOC regulations
and not to its interpretive guidance issued to illuminate those
regulations? It seems to me that neither Mead nor Christensen
speak to this precise scenario.

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their child’s impairment. This, I think, we are not permitted

to do. I explain briefly.

Let us assume arguendo, in line with my brethren’s

conclusion, that the EEOC interpretive guidance deserves no

deference (despite my own belief that utilization of the

provision is entirely sound, see supra note 4). The outcome, in

my view, would still be to affirm the district court by relying

solely on the ADA standards and EEOC regulations, the

reasonableness of which no one -- not even my colleagues --

disputes.

In finding a genuine dispute of fact as to whether

Navarro’s daughter is disabled within the meaning of the FMLA

(i.e., within the meaning of the ADA minus the EEOC interpretive

guidance), the majority argues that the balancing required of

the ADA and EEOC factors, see supra note 3, “should not be

treated as some mandatory checklist.” Ante at 20. From this,

the majority explains that the Supreme Court has decided that

each factor of the “substantially limits” prong as illuminated

by the EEOC “should not be given equal weight.” Ante at 21

(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 481-82

(1999)). In particular, the majority argues that the durational

and long-term impact factors (numbers (ii) and (iii) at 29

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C.F.R. § 1630.2(j)(2), see supra note 3) should not be accorded

“talismanic effect”. As this is so in the ADA context where the

label of “disability” is the touchstone for any relief under the

statute, it should be even more true, they say, in the FMLA

context, given that the FMLA provides only short-term relief and

that the term “disability” becomes relevant only with regards to

relatively rare cases in which FMLA leave is requested to care

for an adult child. A proper balancing on this record of the

EEOC factors in light of the FMLA’s distinct purpose (as

compared with the ADA), leads the majority to conclude that a

jury could find that Navarro’s daughter is disabled despite the

lack of evidence that her impairment would last beyond the three

weeks remaining in her pregnancy.

The difficulty with this analysis is that it disregards

the ADA’s and the EEOC’s requirement that some consideration be

given both to duration and long-term or permanent impact. The

plaintiff has pointed to no evidence that would support an

inference that Navarro’s daughter would not fully recover upon

the birth of her child from her pregnancy-induced hypertension,

an impairment that developed in her thirty-sixth week of

pregnancy. As was the case, the record shows that plaintiff

requested leave on October 14, 1997 to begin on October 25,

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1997. Plaintiff’s daughter gave birth on October 26, 1997. The

only evidence offered by plaintiff in support of her contention

that her daughter qualified as disabled under the FMLA was a

physician’s certificate wherein her daughter’s doctor certified

that “Navarro’s daughter was in her thirty-sixth week of

pregnancy, was suffering from high-blood pressure, and had been

placed on bed rest so that she could bring her fetus to term,

which made her incapable of caring for her two young children.”

As the district court stated “[p]laintiff[] does not allege that

[her] daughter was suffering from high blood pressure throughout

much of her pregnancy, or that her condition would have any

long-term or permanent impact.” Without more, there is simply

not enough evidence to raise a genuine issue of material fact as

to the existence of a disability as defined by the ADA, unless,

of course, we do not consider duration or long-term impact at

all, two of the three factors the ADA’s regulations require a

court to consider.

In disregarding these two factors, the majority

contends it is merely “balancing” and, in so doing, according

little weight to the duration and long-term impact prongs in

view of the FMLA’s purpose. With respect, I see no balancing

whatsoever in light of the total absence of evidence, as

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described above, regarding any duration or long-term impact of

Navarro’s daughter’s hypertension beyond the three weeks left in

her pregnancy. Morever, I see no basis for the court to rely on

the FMLA’s broadly stated purposes ( e.g., balancing “the demands

of the workplace with the needs of families,” 29 U.S.C. §

2601(b)(1)(“Purposes [for the FMLA]”)) as a reason to accord so

little weight to two of the three EEOC factors (if any weight

could in fact be given on this bare record). The majority is,

in effect, using the FMLA’s generally stated aims to overturn

what are otherwise the specifics of the operation of the

Secretary’s regulation. As noted, however, Congress seems to

have used the term “disability” deliberately and precisely to

limit in certain respects the granting of parental leaves in

situations involving adult children. It is circular reasoning

to evade that deliberate limitation, as adduced by Congress and

construed by the Secretary, by reference to nothing more than

bland and by their nature imprecise statutory objectives.

On this record, applying only the ADA standards and

its EEOC regulations and adducing no durational or long-term

impact of plaintiff’s daughter’s impairment, no reasonable jury

could conclude that Navarro’s adult daughter had a “disability”

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and that Navarro was, therefore entitled to leave to care for

her under the FMLA.

III.

As Congress gives the parents of some seriously ill

adult children a statutory right to leave (their children having

a “disability”), and yet denies leave to other parents of adult

children whose situations may be equally disturbing (their

children not having a “disability” but being nonetheless

seriously ill), any line-drawing in this area will obviously to

some degree be discomfiting. Unhappiness over this dilemma

seems to be the impetus behind the majority opinion.

As an antidote, my colleagues have created a legal cure

that is, in my view, worse than the disease. They have rejected

the durational aspects of the ADA definition of “disability”,

thus blurring the line drawn in the FMLA between minor children

and adult children, a line that Congress itself inserted into

the statute. The reasons they offer for doing so are that a

strict application of the EEOC factors would, in their opinion,

be out of harmony with the general aims of the FMLA and that,

under the ADA, the Supreme Court has mandated “balancing.” For

the reasons stated in Parts I and II of this dissenting opinion,

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however, it is by no means obvious that this lack of harmony

exists or that a proper balancing does not lead to an affirmance

of the district court’s judgment. Congress itself added the

disability condition to leaves for parents to care for their

adult children, while inserting no such condition limiting the

granting of leaves to care for parents, minors or spouses.

Compare 29 U.S.C. § 2611(12)(B)(children 18 years of age or

older) with 29 U.S.C. § 2611(7)(“Parent”),(12)(A)(children under

18 years of age) and (13)(“Spouse”). Thus, by using the term

“disability”, Congress rather clearly intended to place special

limits, not imposed for care of other family members, on leaves

to provide parental care for children 18 years of age or older

– otherwise why require that adult children, but not others, be

“incapable of self care because of ... disability” in addition

to having a serious health condition which in all other cases

would alone justify a leave? See Senate Report, supra. By

eviscerating the difference Congress clearly intended there be

between leave policy for parents to care for their adult

children and leave policy for parents to care for their minor

children, my colleagues ignore the strong evidence of the

congressional purpose behind the FMLA provision at issue.

Consideration of the record in light of the statute and the

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Senate Report leads, in my mind, to the conclusion that summary

judgment was properly granted.

In sum, without much clearer evidence of congressional

purpose favoring my colleagues’ position, I see no basis for

rejecting a textual reading of the Secretary’s directive --

adopting the ADA and the EEOC’s regulations promulgated

thereunder -- as the basis for determining whether or not a

parent-employee may take leave under the FMLA to care for an

adult child. In so saying, I do not wish to imply that, had I

been in Congress when the FMLA was enacted, I would necessarily

have favored the disability distinction that Congress inserted.

As a matter of policy, I might well agree with my colleagues

that the current disability yardstick is a rather arbitrary and

clumsy way to separate out those adult children entitled to be

cared for by their parents under the FMLA from those who are

not. But, as judges, our own philosophies and policy-choices

are not the issue. The questions here are what Congress wrote,

how the Secretary of Labor has exercised her power under the

statute, whether what she did was within her authority, and,

finally, whether putting that all together, the district court

construed the law properly. I am constrained to believe that

the district court did construe the law with total propriety.

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Indeed, I find it hard to see how the district court could have

read the statute and regulations differently. This is not an

obscure or ambiguous statute as regards the provision in issue.

That seems to me to end the matter, however any one of us might

have acted as a member of Congress or the Secretary of Labor.

Unwonted activism in the present appeal not only upsets

a district court judgment reached by application of the

appropriate and conventional legal rules, it creates a precedent

with the potential for serious mischief, since our decision will

create confusion as to the relevant standard, while adherence to

the Secretary’s directive would not.5 If Congress were to be

persuaded in the future that the Secretary’s interpretation of

the Act is too narrow, or that its own language needs

enlargement, it can always amend the FMLA; and, of course, the

Secretary, too, can rewrite her regulations. These well-

established remedies would come too late, to be sure, to assist

the present appellant, but I think they better serve the public

5Another reason why I respectfully suggest the majority
opinion is ill-conceived is that no party to this case, to my
knowledge, has championed the argument or urged the legal
position on which the majority opinion rests.

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than a judicial opinion that is sure to create more uncertainty

than answers.

I would affirm the district court.

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