MILLER v. STATE DEPARTMENT OF ECONOMIC DEVELOPMENT
David E. Miller, Appellant,
State of Nebraska Department of Economic Development, an agency of the State of Nebraska; Richard Baier, Individually and in his official capacity as Director of the Department of Economic Development for the State of Nebraska; Gary Hamer, Individually and in his official capacity as Deputy Director of the Department of Economic Development for the State of Nebraska; Steve Charleston, Individually and in his official capacity as Deputy Director for the Community Rural Development Division of the Department of Economic Development for the State of Nebraska; Don Fertig, Individually and in his official capacity as Legal Counsel for the Department of Economic Development for the State of Nebraska, Appellees.
United States Court of Appeals, Eighth Circuit.
Submitted: January 11, 2012.
Filed: April 16, 2012.
Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.
David E. Miller worked for the Nebraska Department of Economic Development ("NDED") from 1986 until his discharge in June 2007. Miller's father, Richard, was diagnosed with prostate cancer in 2005 and with stage IV terminal lung cancer in 2006. Miller regularly obtained leave from work to attend Richard's medical appointments throughout 2005 and 2006. On April 5, 2007, Dr. Douglas Fiedler, Richard's pulmonologist, predicted that Richard had a sixty- to ninety-day life expectancy and recommended that the family look into hospice care. Soon thereafter, Miller and Richard began to disagree on how to proceed with Richard's care. It is undisputed that Miller stopped attending Richard's medical appointments beginning on April 17, but Miller subsequently missed at least twenty-three days of work during April and May 2007, frequently with little or no explanation. On June 15, NDED terminated Miller's employment, citing his unexcused absences. Miller contested the termination through a collective bargaining agreement grievance process, explaining that he suffered a "complete physical and mental breakdown" beginning on April 17 from dealing with his father's medical condition. After an arbitrator rejected his wrongful discharge grievance, Miller brought this lawsuit for interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., alleging that he was absent to care for Richard. Concluding that no reasonable jury could find that Richard was unable to care for his own needs or that Miller used his absences to provide Richard with necessary care, the district court1 granted NDED's motion for summary judgment. We affirm. We review de novo a district court's grant of summary judgment. Roberson v. AFC Enters., Inc., 602 F.3d 931, 933 (8th Cir. 2010). "[W]e will affirm if, upon review, we agree that there are no genuine issues of material fact and that [the movant] is entitled to judgment as a matter of law." Thorson v. Gemini, Inc., 205 F.3d 370, 375-76 (8th Cir. 2000) (citing Fed. R. Civ. P. 56(c)). We must "(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, [and] (3) give the nonmovant the benefit of all reasonable inferences." Roberson, 602 F.3d at 933 (quoting Larson ex rel. Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996) (en banc)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
On appeal, Miller primarily challenges the district court's determination that no reasonable jury could conclude that Miller was needed to care for his father in April and May 2007. The FMLA does not define the phrase "needed to care for," but both parties rely on regulations issued by the Department of Labor. See 29 C.F.R. § 825.124 (2009) (formerly 29 C.F.R. § 825.116) (defining "needed to care for" as including physical and psychological care where, because of a serious health condition, a family member is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety"). Miller raises three challenges to the district court's conclusion that no reasonable jury could find that Miller was "needed to care for" Richard.
Miller contends that a reasonable jury could conclude that Richard was unable to care for his own basic medical, hygienic, or nutritional needs based on Miller's affidavit, in which he claims that Richard "would often need assistance" using the bathroom, dressing, and standing up, and based on Dr. Fiedler's declaration that he "would have certified that . . . Miller was needed to care for Richard" in April or May 2007 if he had been asked. Miller contends that the district court improperly disregarded this evidence in favor of the testimony of Lois Reed, Richard's companion of over twenty-one years, and her daughter that Richard did in fact care for his own medical, hygienic, and nutritional needs during that period.
Miller's affidavit does not create a direct factual conflict with the testimony of Lois and her daughter that, when he was with them, Richard was able to bathe, shampoo and comb his hair, brush his teeth, take his medication, dress himself, feed himself, use the telephone, shop for groceries, and use the restroom, all without assistance. While Miller claims to have provided assistance to Richard at times for some of these activities, even taking all of Miller's factual assertions as true, they do not contradict the testimony of Lois and her daughter as to what Richard was able to do on a daily basis during April and May 2007.2 During that period, Richard operated a motor vehicle, attended social functions and church services, went to restaurants, and even danced. Moreover, Richard spent ten days away from Miller traveling with Lois in Oklahoma and Texas in May 2007. During that trip, Richard attended a pool party, walked around a lake, went shopping, and attended commencement exercises for Lois's granddaughter. Richard took several more trips with Lois in June to attend a wedding, visit a friend for Father's Day, and vacation in Omaha. Miller did not accompany Richard and Lois on any of these trips and has offered no evidence to contradict Lois and Lois's daughter's accounts of Richard's activities and ability to care for himself. Because Miller asserts no personal knowledge of what Richard was able to do in his absence, his affidavit does not contradict Lois's testimony that Richard was able to care for his own basic medical, hygienic, and nutritional needs during those times. See Doza v. Am. Nat'l Ins. Co., 314 F.2d 230, 232 (8th Cir. 1963) (noting that an affidavit "must show that the affiant possesses the knowledge asserted" (quoting Sprague v. Vogt, 150 F.2d 795, 800 (8th Cir. 1945))).