Tellis v. Alaska Airlines Inc. ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
H. CHARLES TELLIS,  No. 04-35137
Plaintiff-Appellant,
v.  D.C. No.
CV-02-01407-TSZ
ALASKA AIRLINES, INC.,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
June 8, 2005—Seattle, Washington
Filed July 12, 2005
Before: Procter Hug, Jr., David R. Thompson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Thompson
8131
TELLIS v. ALASKA AIRLINES, INC. 8133
COUNSEL
Peter G. Cogan, Seattle, Washington, for the plaintiff-
appellant.
Jeffrey A. James, Bellevue, Washington, for the defendant-
appellee.
OPINION
THOMPSON, Senior Circuit Judge:
H. Charles Tellis appeals the district court’s summary judg-
ment in favor of Alaska Airlines on his Family Medical Leave
Act (“FMLA”) claim, 29 U.S.C. § 2601 et seq. Tellis argues
he raised a genuine issue of material fact as to whether his
cross-country trip to retrieve the family vehicle during his
wife’s late-stage pregnancy difficulties, and his calling her on
the phone during the three and a half days he was away, were
“to care for” his wife under the FMLA and thus a protected
absence from his employment. We conclude as a matter of
law that Tellis’s trip and phone calls were not “to care for” his
wife. Thus, his absence from work during that time was not
protected by the FMLA, and we affirm the district court’s
summary judgment in favor of Alaska Airlines.
8134 TELLIS v. ALASKA AIRLINES, INC.
I
Alaska Airlines employed Tellis in Seattle as a mainte-
nance mechanic. His wife was having difficulties with her
pregnancy, so on the morning of July 4, 2000, he told his
supervisor he needed to take a couple of weeks off. His super-
visor suggested he take FMLA leave and directed him to the
Health Benefits office to obtain the necessary forms. Instead
of showing up for his scheduled shift that evening, Tellis left
a leave request form, which requested holiday and vacation
leave for July 5, 6, and 7. On July 5, Tellis contacted the Ben-
efits office to request FMLA leave, and the office sent him the
appropriate forms.
On July 6, Tellis’s vehicle broke down. He owned another
vehicle in Atlanta so he decided to fly there and drive the
vehicle back to Seattle. He departed for Atlanta the evening
of July 6 and arrived back in Seattle the evening of July 10.
While he was gone, his sister-in-law stayed with his wife, and
on July 9 his wife gave birth to a baby girl. While he was
gone, he called his wife regularly on his cell phone from the
road.
Tellis’s next scheduled shift after his three days of
requested leave was July 11. When Tellis was absent without
having obtained the required advance approval, Alaska Air-
lines attempted without success to contact him. Alaska Air-
lines decided to terminate Tellis on July 18, 2000, for his
unexcused absences. Tellis and his union grieved the termina-
tion. In response, Alaska Airlines offered to reinstate Tellis if
he would accept the placement of a disciplinary letter in his
file. The letter would remain in Tellis’s file for one year, and
he would not be permitted to grieve it. Under his collective
bargaining agreement, Tellis would normally be allowed to
grieve a disciplinary letter. Tellis refused the offer, and after
arbitration before the System Board of Adjustment, he filed
the present lawsuit.
TELLIS v. ALASKA AIRLINES, INC. 8135
The district court granted Alaska Airlines’s summary judg-
ment motion, concluding that during Tellis’s FMLA leave, he
did not “care for” his wife; thus, he breached that leave, and
as a result Alaska Airlines could insist, as a condition of con-
tinuing his employment, that he accept the disciplinary letter
in his file. When he refused that offer, Alaska Airlines had the
right to terminate him, which it did. Tellis appeals. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
II
[1] Under the FMLA, an eligible employee is entitled to up
to 12 weeks of leave during a 12-month period “to care for”
a family member with a serious health condition. 29 U.S.C.
§ 2612(a)(1)(C). Tellis argues he cared for his wife consistent
with the FMLA because his trip to Atlanta and back to
retrieve the family car provided psychological reassurance to
her that she would soon have reliable transportation, and his
phone calls to her while he drove back to Seattle provided
moral support and psychological comfort. We disagree and
hold that as a matter of law, providing care to a family mem-
ber under the FMLA requires some actual care which did not
occur here.
[2] The Department of Labor’s regulations implementing
the FMLA explain that the phrase “to care for” a family mem-
ber
encompasses both physical and psychological care.
It includes situations where, for example, because of
a serious health condition, the family member is
unable to care for his or her own basic medical,
hygienic, or nutritional needs or safety, or is unable
to transport himself or herself to the doctor, etc. The
term also includes providing psychological comfort
and reassurance which would be beneficial to a
child, spouse or parent with a serious health condi-
tion who is receiving inpatient or home care.
8136 TELLIS v. ALASKA AIRLINES, INC.
29 C.F.R. § 825.116(a). Interpreting this rule, we have previ-
ously stated that caring for a family member with a serious
health condition “involves some level of participation in
ongoing treatment of that condition.” Marchisheck v. San
Mateo County, 199 F.3d 1068, 1076 (9th Cir. 1999).
[3] Courts in this Circuit and other jurisdictions that have
concluded a particular activity has constituted “caring for” a
family member under the FMLA have done so only when the
employee has been in close and continuing proximity to the
ill family member. In Scamihorn v. General Truck Drivers,
282 F.3d 1078, 1087-88 (9th Cir. 2002), we held that a son
who moved to his father’s town for a month to help him cope
with depression raised a genuine issue of material fact as to
whether he did so “to care for” his father. The son’s activities
included talking with his father daily, performing household
chores, and driving his father to the counselor. The court con-
cluded the son “participated in the treatment through both his
daily conversations with his father . . . and his constant pres-
ence in his father’s life.” Id. at 1088. Courts from other juris-
dictions have held similarly. See, e.g., Brunelle v. Cytec
Plastics, Inc., 225 F. Supp. 2d 67, 77 & n.13 (D. Me. 2002)
(denying employer’s summary judgment motion when son
spent “the entire day providing care and comfort to his criti-
cally ill father”); Briones v. Genuine Parts Co., 225 F. Supp.
2d 711, 715-16 (E.D. La. 2002) (denying employer’s sum-
mary judgment motion when employee took leave to care for
his three healthy children while his wife cared for his hospi-
talized fourth child).
One state court decision against an employee is also
instructive. In Pang v. Beverly Hospital, Inc., 94 Cal. Rptr. 2d
643, 648-49 (Cal. Ct. App. 2000), a California Court of
Appeal held an employee was not protected under Califor-
nia’s state law counterpart to the FMLA. The employee took
leave to help her ailing mother move from her two-story home
to a one-level apartment to minimize the need for at-home
assistance. The court stated:
TELLIS v. ALASKA AIRLINES, INC. 8137
Pang’s admissions make clear that she was not there
to directly, or even indirectly, provide or participate
in medical care for her mother. Instead, she was
there to help pack her mother’s belongings and tell
the movers where to place her mother’s furniture.
While Pang’s presence may have provided her
mother some degree of psychological comfort, this
was merely a collateral benefit of activities not
encompassed by the Commission’s regulations.
....
The same is true of the federal FMLA regulations
....
Id. at 649 (citing 29 C.F.R. § 825.116 and
Marchisheck, 199 F.3d at 1076).
[4] Although we need not embrace the breadth of these out-
of-circuit decisions to address Tellis’s case, the decisions do
support our conclusion that Tellis’s activities cannot be con-
sidered “caring for” his wife. Instead of participating in his
wife’s ongoing treatment by staying with her, he left her for
almost four days. Tellis claims his trip provided psychological
reassurance to his wife, but he did not travel to Atlanta to par-
ticipate in his wife’s medical care. Having a working vehicle
may have provided psychological reassurance; however, that
was merely an indirect benefit of an otherwise unprotected
activity — traveling away from the person needing care. Tel-
lis also claims his phone calls provided moral support and
comfort, but his phone calls during his trip did not constitute
participation in ongoing treatment. Common sense suggests
that the phone calls Tellis made do not fall within the scope
of the FMLA’s “care for” requirement. The language of the
decisions supra makes this clear: the Scamihorn court relied
on the son’s “daily conversations” and “constant presence.”
8138 TELLIS v. ALASKA AIRLINES, INC.
282 F.3d at 1088. Brunelle relied on the son’s spending the
“entire day” with his father. 225 F. Supp. 2d at 77 n.13.
III
[5] For the foregoing reasons, we hold that Tellis’s cross-
country trip to retrieve the family car, and phone calls to his
wife while he was away, cannot as a matter of law be consid-
ered “caring for” his wife under the FMLA. Consequently, his
absence from employment during that period was not pro-
tected by the FMLA. We therefore affirm the district court’s
decision granting Alaska Airlines summary judgment.
AFFIRMED.