Fanny Tsun v. Wdi International, Inc. ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FANNY K.F. TSUN, No. 13-15645
Plaintiff - Appellant, D.C. No. 1:12-cv-00051-LEK-
KSC
v.
WDI INTERNATIONAL, INC., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted October 8, 2014**
University of Hawaii William S. Richardson School of Law
Honolulu, Hawaii
Before: TASHIMA, RAWLINSON, and CLIFTON, Circuit Judges.
Fanny K.F. Tsun appeals the district court’s order granting summary
judgment in favor of WDI International, Inc. on her claims under the Hawaii
Family Leave law (HFLL) and the Family Medical Leave Act of 1993 (FMLA).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Tsun’s requested leave under the HFLL could only be premised on her
father-in-law’s “serious health condition.” Haw. Admin. C. § 12-27-1 (defining
“serious health condition” and “parent” to include “parent-in-law”); Haw. Admin.
C. § 12-27-6(f) (HFLL protected leave “shall not include the serious health
condition of the employee”). However, once her father-in-law passed away, she no
longer had a qualifying reason to request leave under the HFLL. See Haw. Rev.
Stat. § 398-1 (“Serious health condition” means “a physical or mental condition
that warrants the participation of the employee to provide care during the period of
treatment or supervision by a health care provider . . .”).
Tsun’s claim for leave under the FMLA was predicated on her statement that
she injured her back while in Hong Kong. To qualify for leave under the FMLA,
Tsun had to experience a “serious health condition.” 29 U.S.C. § 2612, found
unconstitutional on other grounds in Coleman v. Ct. App. Md., 132 S. Ct. 1327(2012). A “serious health condition” is defined as “an illness, injury, impairment
or physical or mental condition that involves . . . continuing treatment by a health
care provider . . . ” 29 U.S.C. § 2611(11). In turn, a “health care provider” is
defined as:
(1) A doctor of medicine or osteopathy who is authorized to practice
medicine or surgery (as appropriate) by the State in which the doctor
practices; or
2
(2) Any other person determined by the Secretary to be capable of
providing health care services.
29 C.F.R. § 825.125(a).
Other persons capable of providing health care services in a country outside
the United States include only those “authorized to practice in accordance with the
law of that country, and who is performing within the scope of his or her practice
as defined under such law.” Id. at § 825.125(b)(5).
Tsun failed to raise a material issue of fact that she was being treated by a
health care provider as defined in the FMLA. She proffered evidence that she was
treated in Hong Kong by “a licensed bone specialist [who] also practiced Chinese
medicine.” The treatment consisted of a “special type of ointment” and a back
massage. No evidence was submitted that the “Chinese doctor,” was a health care
provider as defined under the FMLA. Tsun failed to raise a material issue of fact
that she was treated by a health care provider as defined in the FMLA, thereby
failing to raise a material issue of fact that she suffered from a “serious health
condition” that qualified her for FMLA leave. 29 U.S.C. § 2612; 29 U.S.C. §
2611(11); 29 C.F.R. § 825.125(a); Sanders v. City of Newport, 657 F.3d 772, 778
(9th Cir. 2011) (holding that a viable FMLA claim requires a showing that the
employee was entitled to leave).
3
AFFIRMED.
4