LOKEN, Circuit Judge.
Nurse Lucinda Dalton was terminated from her supervisory position as Director of Care Delivery (DCD) at the ManorCare of West Des Moines skilled nursing facility. Dalton brought this action against ManorCare, various ManorCare affiliates, and three ManorCare managers (collectively, ManorCare), alleging they interfered with her statutory rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., and discriminated against her because of her Chronic Kidney Disease disability in violation of the Iowa Civil Rights Act, Iowa Code Ch. 216, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. Defendants removed the suit to federal court. After extensive discovery, the district court
Dalton served as a ManorCare nurse from May to July of 2009. Rehired in March 2010, she was promoted to DCD in September. That summer and fall, Dalton began experiencing significant weight gain and edema (excess fluid that makes tissues appear doughy). Her primary health care provider, Karen Heffernan, P.A., discontinued a high blood pressure medication, suspecting Dalton's edema was a side effect. This did not resolve the problems. In late December, Dalton had gained fourteen pounds and had pitting edema; Heffernan prescribed a fluid retention medication, noting Dalton expressed concern about kidney failure but her kidney functions had been normal in October. At a December 29 appointment, Heffernan noted concern that Dalton had not lost weight and sent her to Penn Avenue Internal Medicine in early January 2011 for a chest x-ray and for testing of her kidney functions and thyroid. The examining physician noted "weight gain of 15 pounds and edema, uncertain etiology," shortness of breath, and a history of mild persistent asthma. Dalton's chest x-ray was normal. He referred Dalton to a kidney specialist, Robert Leisy, D.O., for an evaluation of her edema and excess fluids.
Dalton saw Dr. Leisy on January 25, 2011. He diagnosed Stage One Chronic Kidney Disease (CKD), "secondary to obesity," not edema,
In early 2011, ManorCare nurses that Dalton supervised complained about her job performance to Dalton's supervisor, Holly Benedict. On February 21, Dalton met with Benedict and the facility's Human Resources Director, Memorea Schrader. They issued Dalton a Third/Final Written Warning for violating Major/Type B Work Rules. The Final Warning cited inappropriate negative comments about her work at the nurses' station, where patients could overhear; failure to notify staff members she had cancelled a meeting; and taking an extended lunch break and failing to attend patient care conferences. A Performance Improvement Plan accompanied the Final Warning, listing actions to correct the deficiencies and stating that Dalton and Benedict "will meet in one week to discuss progress." Dalton understood that any further
At the February 21 meeting, Dalton also was issued a First Written Warning reciting that she had arrived late, left early, or called in on ten different days between January 18 and February 18, 2011. For this Minor/Type C attendance issue, the employee handbook prescribed progressive disciplines that "normally require four stages" before termination. Dalton testified:
On Friday, February 25, Benedict spoke to Dalton about a number of unfinished tasks — completing over-due care plans, investigating and completing a report for two patient call-light responses, conducting skin sweeps on her patients, and completing paperwork for a new patient. Dalton testified that she believed she had until the end of the month on Monday to complete skin sweeps, care plans, and admission paperwork. When Benedict checked on Dalton's progress later on Friday, Dalton had left for the day, without completing care plans and call-light responses. Benedict also discovered on Dalton's desk a lab report with abnormal results that had not been passed along to the appropriate nurse.
Early on Monday, February 28, Dalton called Benedict, reporting that she was having chest pains and was going to the emergency room, where she was admitted with complaints of "atypical chest pain." Dalton was discharged at 4:30 without a definite diagnosis of the chest pain, with instructions to follow up with Dr. Leisy and Heffernan as soon as possible and a physician's note excusing her from work until Wednesday, March 2, which Dalton reported to Benedict. Benedict instructed Dalton to come to work at 1:00 on March 2, when Benedict and Schrader advised Dalton that she was suspended pending an investigation into her failure to perform job functions. Dalton testified she asked again about FMLA leave and was again told she was ineligible. On March 3, ManorCare issued Dalton a warning for failing to "observe written/oral instructions and carry out job responsibilities without errors," a Type C Work Rule violation that, combined with her prior Third/Final Written Warning, resulted in termination. This lawsuit followed.
The FMLA entitles an eligible employee to twelve weeks of unpaid leave during any twelve-month period if she has a serious health condition that makes her unable to perform the functions of her
Dalton argues that ManorCare interfered with her FMLA rights by terminating her for failing to perform job duties on February 28, when she was in the hospital being treated for a chronic serious health condition protected by the FMLA. The district court granted ManorCare summary judgment on three alternative grounds: (1) Dalton "failed to provide evidence she suffered from a serious health condition that made her unable to perform the functions of her position." (2) "Although Dalton had informed Benedict and Schrader about symptoms she was experiencing, she failed to place them on the required notice that she was going to be absent on February 28 and March 1, 2011, for a medical condition protected by the FMLA."
Dalton contends that her condition from mid-2010 until termination in March 2011 was a "chronic serious health condition" within the meaning of the regulations — one which "(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider ... (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma ... etc.)." 29 C.F.R. § 825.115(c). In the district court, Dalton argued her chronic condition was CKD. Without question, kidney disease can be a serious health condition. But Dr. Leisy testified that Stage One CKD is a warning that the kidneys are working too hard, not an advanced disease, and renal
Changing focus on appeal, Dalton argues that her unexplained edema and substantial weight gain were a "chronic serious health condition." But she did not make this fact-intensive argument to the district court. And she cites no authority — other than her expansive interpretation of ambiguous Department of Labor regulations — supporting the assertion that her edema and obesity were chronic serious health conditions entitling Dalton to FMLA leave. It is undisputed the conditions did not affect her ability to perform the functions of her position, and she did not request leave other than time needed to attend periodic medical appointments, which ManorCare consistently allowed. We do not doubt that edema and fluid retention may be signs of a potentially serious condition, such as congestive heart failure, liver disease, or primary kidney disease. But no such condition was ever diagnosed, and ManorCare did not interfere with Dalton's frequent medical appointments to obtain needed diagnosis and treatment.
Moreover, Dalton's edema and fluid retention did not result in any "incapacity" — inability to work — other than brief absences to obtain medical diagnosis and treatment. Dalton argues she was incapacitated on February 10 and 11, when she visited Heffernan with a myriad of complaints — cough, severe rash, continued fluid gain, and depression. Heffernan diagnosed pruritus and acute bronchitis, prescribed medication, and told Dalton to stay off work for two days. Those were "short-term conditions" FMLA was not intended to cover. Martyszenko v. Safeway, Inc., 120 F.3d 120, 123 (8th Cir.1997). Thus, as in Price v. Marathon Cheese Corp., 119 F.3d 330, 335 (5th Cir.1997), Dalton's "manifestation of this condition did not rise to the level of `serious health condition.'" See Beal v. Rubbermaid Commercial Prods. Inc., 972 F.Supp. 1216, 1224-25 (S.D.Iowa 1997) (eczema not a serious health condition); Boyce v. N.Y.C. Mission Soc., 963 F.Supp. 290, 299 (S.D.N.Y.1997) (chest pain and shortness of breath not a serious health condition).
For these reasons, we agree with the district court that the summary judgment record establishes that, as of the February 21 job performance meeting, Dalton was not suffering from a "chronic serious health condition," and ManorCare had not interfered with her efforts to seek diagnosis and treatment for the alarming but less serious conditions she was experiencing.
Dalton argues her February 28 hospital admission was a second period of incapacity attributable to a chronic serious health condition. But as we have explained, Dalton had no chronic serious health condition at that time, only recurring health issues that did not make her unable to perform her job. Moreover, Dalton failed to prove that her "atypical chest pain" on February 28 was "due to" her alleged chronic condition. The medical records prior to February 28 contain no mention of chest pain, let alone severe chest pain. There is no evidence, as 29 C.F.R. § 825.115(c) requires to establish a chronic condition, "that there were recurring episodes of severe chest pain caused by the underlying [conditions] or episodic periods of incapacity." Crowell v. Denver Health & Hosp. Auth., 572 Fed.Appx. 650, 657 (10th Cir.2014); accord Fink v. Ohio Health Corp., 139 Fed.Appx. 667, 670 (6th Cir.2005). "Where absences are not attributable to a serious health condition ... FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences." Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1147-48 (8th Cir.2001); see Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir.2000); Bailey v. Amsted Indus. Inc., 172 F.3d 1041, 1045-46 (8th Cir.1999).
Unlike nearly all our prior FMLA interference cases, this was not a termination for excessive absenteeism. In such cases, the issue often turns on whether absences the employer took into account were in fact FMLA-protected, in which case there may have been wrongful interference. See, e.g., Lovland, 674 F.3d at 812-13. Here, by contrast, Dalton's termination was the end of an on-going, unrelated disciplinary process. "[N]o employee taking FMLA leave is entitled to `any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.'" Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 977 (8th Cir.2005), quoting 29 U.S.C. § 2614(a)(3)(B).
Dalton testified that she believed ManorCare terminated her because of medically-justified poor attendance, rather than unrelated performance deficiencies. But it is undisputed that ManorCare was seriously
The judgment of the district court is affirmed.