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May 8, 1998


The opinion of the court was delivered by: TRAGER


 TRAGER, District Judge:

 Plaintiff sued her employer under 29 U.S.C. § 2601, et seq., alleging that she was denied the benefits of the Family Medical Leave Act when she was terminated from her job. Defendant moves for summary judgment on the grounds that plaintiff's condition was not a "serious health condition" within the meaning of the statute. Plaintiff cross moves for summary judgment. For the reasons discussed below, defendant's motion for summary judgment is granted and plaintiff's cross motion for summary judgment is denied.


 Defendant Human Development Association ("HDA") is an organization which provides health care to patients in their homes. Plaintiff was employed by HDA as a home health care aide for approximately seven years prior to the events which gave rise to this lawsuit.

 On Thursday morning, May 25, 1995, plaintiff, then sixty-four years old, was working at the home of Marie Crupie, a woman in her eighties, when plaintiff began experiencing what she describes as heavy post-menopausal vaginal bleeding. See Tr. Pl. Dep. at 52-54. Plaintiff states that at the time of this incident, she had been in menopause for approximately eight years and had never before experienced post-menopausal bleeding. *fn1"

 According to her complaint, upon becoming aware of this condition, plaintiff called the emergency number at her office to request that a replacement attendant be sent to relieve her at Mrs. Crupie's home. Apparently, plaintiff was advised that the person with whom she needed to speak in order to place this request was not in the office and that plaintiff should call back. Plaintiff testified at her deposition that she called back several times over the course of the following two hours before she was eventually advised that a replacement attendant would be sent. Although the replacement had not yet arrived when plaintiff left Mrs. Crupie's home, plaintiff states that both Mrs. Crupie and her daughter, Lillian, told plaintiff that she should go and that Mrs. Crupie's daughter would stay with her mother until the replacement attendant arrived. *fn2"

 Upon leaving her work site, plaintiff went directly to Kings County Hospital, where she waited in the emergency room for several hours before being treated. Plaintiff was ultimately seen by a doctor around 3:00 p.m. At approximately 4:00 p.m., plaintiff underwent a dilation and curretage ("D and C"). *fn3" See Compl. P 5. Plaintiff's husband picked her up from the hospital and she returned home around 7:00 p.m. that evening.

 Plaintiff was not specifically advised by any medical personnel that she was required to remain at home for any period of time following her release from the hospital. Plaintiff states that she planned to stay home Friday, May 26 and return to work on Monday, May 29, 1995. See Tr. Pl. Dep. at 211-13. Plaintiff called her office early the next morning, May 26, 1995, presumably to inform her supervisors of her status and that she would not be in that day, at which time she was informed that she had been terminated because she had left her job on the previous day before a replacement aide had arrived. Upon learning this, plaintiff had her husband drive her to HDA's offices, approximately a thirty minute drive from her house, in an attempt to offer proof of her outpatient hospitalization the day before and thereby save her job. This entreaty proved fruitless, however, and plaintiff filed a complaint with this court on July 10, 1995.

 In her complaint, plaintiff alleges that she was terminated in violation of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. ("the Act"). As her first cause of action, plaintiff claims that she was denied her twelve week period of leave pursuant to 29 U.S.C. § 2612 and she requests relief in an amount equal to the difference between twelve weeks of salary minus the salary she received from May 26, 1995 to date, as well as liquidated damages equal to the sum of this amount. For her second cause of action, plaintiff alleges that she is entitled to be restored to the position she held when her leave commenced and she seeks relief in the form of all wages, employment benefits, or other compensation denied her from May 26, 1995 to date, as well as an additional amount of liquidated damages equal to the sum of this amount. Plaintiff seeks employment reinstatement and reasonable attorneys' fees as to both causes of action. *fn4"



 The Family Medical Leave Act permits an employee to take up to twelve weeks of leave during any twelve month period because, inter alia, of "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). An eligible employee who takes leave pursuant to the Act is entitled, upon return from such leave, "to be restored" to either the same position the employee held at the beginning of such leave or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. See 29 U.S.C. § 2614(a)(1). An employer is prohibited from interfering with or denying an eligible employee the rights and benefits provided by the Act. See 29 U.S.C. § 2615(a)(1).

 Plaintiff claims that her termination occurred in violation of the Act because the medical condition which necessitated her leaving her job on May 25, 1995 constituted a serious health condition within the meaning of the Act. The Act defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves - A) inpatient care in a hospital, hospice, or residential medical care facility; or B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).

 HDA argues that plaintiff's condition does not qualify as a serious health condition as a matter of law because plaintiff neither received inpatient treatment nor continuing treatment as those terms are used by the Act. HDA contends that plaintiff's condition of "post-menopausal bleeding and associated cramps" was a minor illness and as such, is exempted from the Act's coverage. See Def.'s Mem. at 2. Citing the legislative history of the Act, HDA emphasizes that Congress did not intend the Act to cover minor illnesses:

The term "serious health condition" is not intended to cover short-term conditions for which treatment and recovery are very brief. It is expected that such conditions will fall within even the most modest sick leave policies. Conditions or medical procedures that would not normally be covered by the legislation include minor illnesses which last only a few days and surgical procedures which typically do not involve hospitalization and require only a brief recovery period.

 H.R. Rep. No. 8, 103rd Cong., 1st Sess., pt. 1 at 29 (1993); U.S. Code Cong. & Admin. News 1993 at 3, 31. See also Boyce v. New York City Mission Soc'y, 963 F. Supp. 290, 298-99 (S.D.N.Y. 1997)(citing legislative history); Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108, 1121 (W.D.N.Y. 1996)("It is clear that, in general, Congress intended the FMLA to cover illnesses lasting more than a few days.")(citing legislative history). For its argument that plaintiff's condition was a minor illness which is excluded from the Act's coverage, HDA relies on the legislative history of the Act which provides as examples of "serious health conditions" the following non-exhaustive list:

heart attacks, heart conditions requiring heart bypass of valve operations, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, severe respiratory conditions, spinal injuries, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth.

 H.R. Rep. No. 8, 103rd Cong., 1st Sess., pt. 1 at 29 (1993); U.S. Code Cong. & Admin. News 1993 at 3, 31; see also 58 Fed. Reg. 31, 799 (1993). An examination of the congressional debate surrounding the Act reveals that "this definition of 'serious health condition' is also intended to include emergency health conditions that require immediate short-term treatment to prevent serious aggravation of the condition or to minimize the likelihood of longer term illness, injury, or disability." 139 Cong. Rec. S1348 (daily ed. Feb. 4, 1993)(statement of Rep. Harkin). Additionally, HDA refers to the Department of Labor's substantive regulations for the Act, issued pursuant to authority granted by the Act in 29 U.S.C. § 2654, which clarify what is meant by the phrase "serious health condition." *fn5"

 From these regulations the Department of Labor has devised a test for what illnesses qualify as serious health conditions. If an employee is 1) incapacitated (i.e., unable to work, attend school or perform other regular activities due to the serious health condition, treatment therefor, or recovery therefrom) for more than three days; 2) seen once by a doctor; and 3) prescribed a course of medication, such as an antibiotic, she has a "serious health condition" which is covered by the Act. See Boyce, 963 F. Supp. at 299 (footnote omitted)(citing Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028, 1036 (M.D.Tenn. 1995)); 29 C.F.R. § 825.114.


 Plaintiff did not receive inpatient care for her medical condition because she was not in the hospital overnight. Thus, in order to come within the Act's protection, she must demonstrate that she satisfies the "continuing treatment" alternative of the "serious health condition" definition set forth in 29 U.S.C. § 2611(11). To do this, plaintiff must make a dual showing that she was incapacitated for more than three days and that she received continuing treatment by a health care provider. Indeed, only where an incapacity is shown is it necessary to proceed to consideration of whether the employee received "continuing treatment" within the meaning of the Act. See Murray v. Red Kap Indus., Inc., 124 F.3d 695, 698 (5th Cir. 1997). Thus, construing the facts in a light most favorable to ...

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