FANNY TSUN V. WDI INTERNATIONAL, INC., No. 13-15645 (9th Cir. 2014)
Annotate this Case
Download PDF
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 20 2014 MOLLY C. DWYER, CLERK FANNY K.F. TSUN, Plaintiff - Appellant, No. 13-15645 U.S. COURT OF APPEALS D.C. No. 1:12-cv-00051-LEKKSC 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
