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SEIDLE v. PROVIDENT MUT. LIFE INS. CO.

December 19, 1994

AUDREY M. SEIDLE
v.
PROVIDENT MUTUAL LIFE INSURANCE COMPANY



The opinion of the court was delivered by: CHARLES R. WEINER

 WEINER, J.

 DECEMBER 19, 1994

 The plaintiff brought this action, claiming that her termination by the defendant following her four-day absence from work violated the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. ยง 2601 et seq., because her absence had been occasioned by the need to care for her ill, four-year old son, Terrance Johnson ("Terrance"). Plaintiff seeks back pay from the date of her discharge, reinstatement or front pay, and other remedies available under the FMLA. Presently before the court are the parties cross-motions for summary judgment on the limited issue of whether Terrance's illness constitutes a "serious health condition" within the meaning of the FMLA. *fn1" For the reasons which follow, the motion of the defendant is granted and the motion of the plaintiff is denied.

 STANDARD OF REVIEW

 Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted when, "after considering the record evidence in the light most favorable to the non-moving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Turner v. Schering-Plough Corp., 901 F.2d 335, 340-41 (3d Cir. 1990). For a dispute to be "genuine," the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Williams v. Borough of Chester, 891 F.2d 458, 460 (3d Cir. 1989). To establish a genuine issue of material fact, the non-moving party must introduce evidence beyond the mere pleadings to create an issue of material fact on "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden of demonstrating the absence of genuine issues of material fact is initially on the moving party regardless of which party would have the burden of persuasion at trial. First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins., 824 F.2d 277, 280 (3d Cir. 1987). Following such a showing, the non-moving party must present evidence through affidavits or depositions and admissions on file which comprise of a showing sufficient to establish the existence of every element essential to that party's case. Celotex, 477 U.S. at 323. If that evidence is, however, "'merely colorable' or is 'not significantly probative', summary judgment may be granted." Equimark Commercial Finance Co. v. C.I.T. Financial Corp. 812 F.2d 141, 144 (3d Cir. 1987) (quoting, in part, Anderson, 477 U.S. at 249-50).

 FACTS

 The following facts concerning the narrow issue of whether Terrance's illness constitutes a "serious health condition" under the FMLA are undisputed: *fn2"

 The facts concerning Terrance's illness are as follows: On October 11th, between 11:30 p.m. and 12:00 a.m., Terrance awoke from his sleep and began to vomit and experience symptoms of fever and a runny nose. Id. at 83. His temperature at that time was "about 100 degree". Id. at 84. Plaintiff gave Terrance "some Tylenol" which Terrance also vomited. Id. On October 12, 1994, at approximately 2:00 a.m., Terrance's temperature had risen to 102 degree. Id. at 85. At 2:00 a.m., plaintiff phoned the office of Terrance's pediatrician, Patricia Camody-Johnston, M.D., F.A.A.P. ("Dr. Johnston"). Id. Plaintiff described Terrance's condition to "Donna" who answered the phone. Id. at 86. *fn3" Donna instructed plaintiff to monitor Terrance's temperature, continue to administer Tylenol and, if his condition did not improve overnight, to bring him in to see Dr. Johnston. Id. Donna did not direct plaintiff to take Terrance to either an emergency room or a hospital. Id. at 87. At 6:00 a.m., Terrance's temperature had dropped to 100degree. Id. at 88. Plaintiff subsequently scheduled an appointment for Terrance to see Dr. Johnston around 2:00 or 3:00 p.m. on October 12th. Id. at 96. At no time did Terrance complain about any ear pain. Id. at 86.

 Dr. Johnston examined Terrance in her office for about 20 minutes. Id. at 100. At the time of the examination, Terrance had a temperature of 99.8degree. Notes of Dr. Johnston included in the Appendix to plaintiff's Motion for Summary Judgment as Exhibit B. Dr. Johnston diagnosed Terrance as suffering from a "right otitis media" or "ROM". Id; Letter dated March 30, 1994 from Dr. Johnston to plaintiff's attorney included in the Appendix to Plaintiff's Motion for Summary Judgment as Exhibit C. Dr. Johnston prescribed an oral antibiotic (Amoxicillin) to be taken by Terrance twice a day over a full ten day period. Id; Notes of Dr. Johnston; Seidle Dep. at 23, 100, 102. Dr. Johnston did not prescribe any ear drops. Id. at 101. Nor did she recommend taking Terrance to an emergency room or hospital. Id. Dr. Johnston requested that plaintiff bring Terrance back in two weeks to ensure that the ear infection had been resolved. Exhibits B, C. Dr. Johnston also told plaintiff to keep Terrance home for two days and to monitor his temperature. Seidle Dep. at 101. Indeed, it is Dr. Johnston's "usual advice to a parent with a child with an ear infection that the child not return to day care or other prearranged baby sitting situation and remain home until the child has no more fever for at least 48 hours and feels better." Exhibit C.

 By late in the evening on October 12, 1994, Terrance's fever had disappeared. Id. at 107. Nor did he have a fever for the rest of the week. Id. at 108. Terrance did not eat any food that evening. Id. He did not vomit and did not complain about any pain in his ear. Id. He slept soundly that evening. Id.

 On the morning of October 13, 1993, Terrance did not eat anything for breakfast but did drink a little juice. Id. at 110. Plaintiff did not take Terrance to his day care center that day. Id. at 111-112. Instead, Terrance remained inside all day either dozing or watching TV. Id. Terrance did not eat any lunch or dinner. Id. He just drank a little juice. Id. He continued to take Amoxicillin along with Tylenol and Pediacare, a non-prescription medication for children. Id. Terrance again slept soundly that night. Id.

 On the morning of October 15, 1993, Terrance ate a "couple spoonfuls of cereal" for breakfast. Id. at 118. Terrance did not eat lunch and ate "just a little" for dinner. Id. at 118. Plaintiff continued to give Terrance Amoxicillin and Pediacare that day. Id. Plaintiff did not report to work that day because "Terrance still had a runny nose and the day care would not allow him to be there." Id. at 117, 28. Terrance remained inside all day. Id. at 119. He spent most of the day either watching TV or napping. Id. He once again slept soundly that night. Id.

 On the morning of October 16, 1993, Terrance ate a "little" for breakfast, lunch and dinner. Id. at 120. Terrance started playing with his toys "a little more" and started talking "a little more." Id. He also went with his mother to the supermarket for about 45 minutes. Id. Plaintiff continued to give Terrance Amoxicillin and Pediacare that day. Id. at 121. Terrance once again slept soundly that night. Id.

 On the morning of October 17, 1993, plaintiff thought Terrance was feeling better since he was playing and talking "a little bit more." Id. at 122. He ate waffles for breakfast, nothing for lunch and chicken and rice for dinner. Id. Plaintiff continued to give Terrance Amoxicillin. Id. at 124. Terrance stayed inside all day. Id. His runny nose "started to dry up" late that day. Id. at 123. He again slept soundly that night. Id.

 On the morning of October 18, 1993, plaintiff took Terrance to the day care center. Id. Plaintiff also returned to work that day. Id. Plaintiff gave Terrance Amoxicillin in the morning and again in the evening. Id. at 125.

 Terrance had never had an ear infection prior to October, 1993 and has not had one since. Id. at 126-127. Other than the October 13 visit, plaintiff had no further communications, either in person or by telephone, with Dr. Johnston or any other health care provider regarding Terrance's ear infection. Id. at 103-104. Plaintiff never took Terrance back to Dr. Johnston for a follow-up examination concerning his ear infection. Id. at 103, 135. The next time Dr. Johnston examined Terrance was on December 17, 1993 for an unrelated illness. Exhibit B.

 STATUTORY CONSTRUCTION OF THE FMLA

 To support its decision to pass the FMLA, Congress made six Findings, three of which are relevant to the case sub judice:

 
(2) it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing and the care of family ...

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