Rose M. Rankin v. Seagate Tech., Inc., 246 F.3d 1145 (8th Cir. 2001). · Go Syfert
Rose M. Rankin v. Seagate Tech., Inc., 246 F.3d 1145 (8th Cir. 2001). Cases Citing This Book View Copy Cite
57 citation events (51 in the last 25 years) across 17 distinct courts.
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
examined Cited "but see" Johnson v. Dollar General (3×) also: Cited as authority (rule), Cited as authority (verbatim quote)
N.D. Iowa · 2012 · signal: but see · 1 verbatim quote · confidence high
where absences are not attributable to a 'serious health condition,' however, the fmla is not implicated and does not protect an employee against disciplinary action based upon such absences.
discussed Cited as authority (verbatim quote) Steve Curtis v. Nucor Corporation
8th Cir. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
where absences are not attributable to a 'serious health condition,' however, fmla is not implicated and does not protect an employee against disciplinary action based upon such absences.
discussed Cited as authority (verbatim quote) Aboulhosn v. Merrill Lynch, Pierce, Fenner & Smith Inc.
C.D. Cal. · 2013 · signal: see also · quote attribution · 1 verbatim quote · confidence high
where absences are not attributable to a 'serious health condition,' ... fmla is not implicated and does not protect an employee against disciplinary action based upon such absences
cited Cited as authority (rule) Germundson v. Armour-Eckrich Meats, L.L.C.
N.D. Iowa · 2017 · confidence medium
See Stallings, 447 F.3d at 1051 n.3; Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001).
discussed Cited as authority (rule) Jamie Smith v. AS America, Inc.
8th Cir. · 2016 · confidence medium
“We have previously observed that although conditions like the common cold or the flu will not routinely satisfy the requirements of a ‘serious health condition,’ absences resulting from such illnesses are protected under FMLA when the regulatory tests are met.” Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir. 2001) (citing Thorson, 205 F.3d at 379).
discussed Cited as authority (rule) Wilkerson v. Great Prairie Area Education Agency
S.D. Iowa · 2015 · confidence medium
FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.” (alteration in original) (quoting Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1147-48 (8th Cir.2001))); Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir. 2000) (finding that the , employee who was terminated for absences related to his shoulder injury could not establish that he received “continuing treatment” by . a health care provider, as required to prevail on his FMLA claim because neither of the employee’s visits to physicians resulted in a program o…
discussed Cited as authority (rule) Lucinda Dalton v. Manor Care of West Des Moines
8th Cir. · 2015 · confidence medium
FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.” Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1147-48 (8th Cir.2001); see Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir.2000); Bailey v. Amsted Indus.
discussed Cited as authority (rule) Giddens v. UPS Supply Chain Solutions (2×) also: Cited "see, e.g."
D. Del. · 2014 · confidence medium
Rankin, 246 F.3d at 1147 (internal quotation omitted).
discussed Cited as authority (rule) James Hansen v. Fincantieri Marine Group, LLC
7th Cir. · 2014 · confidence medium
See Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156, 161 (3d Cir.2010) (holding that “[s]ome medical evidence is still necessary” and that an employee can create a genuine issue of material fact as to incapacity “through a combination of expert medical and lay testimony”); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148-49 (8th Cir.2001) (holding that plaintiffs own affidavit testimony that she was “too sick to work” and her testimony concerning her conversation with nurses about her condition combined with her medical records created a genu *839 ine issue of material…
discussed Cited as authority (rule) Todd Johnson v. Dollar General
8th Cir. · 2013 · confidence medium
See 29 U.S.C. § 2611 (11) (defining “serious health condition”); Ballato v. Comcast Corp., 676 F.3d 768, 772 (8th Cir.2012) (initial burden of proof in FMLA interference case is on employee to show that he was entitled to benefit denied); Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1147 (8th Cir.2001) (conditions like common cold or flu will not routinely satisfy requirements).
cited Cited as authority (rule) Dollar v. Smithway Motor Xpress, Inc.
N.D. Iowa · 2011 · confidence medium
See Stallings, 447 F.3d at 1051 n. 3; Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir.2001).
discussed Cited as authority (rule) Fritz v. Phillips Service Industries, Inc.
E.D. Mich. · 2008 · confidence medium
See Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001); Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir.2001); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir.1997).
discussed Cited as authority (rule) Husinga v. Federal-Mogul Ignition Co.
S.D. Iowa · 2007 · confidence medium
Id. at 1206-07 ; Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (applying objective test to substantive FMLA claim and rejecting use of traditional burden-shifting analysis for same). 29 U.S.C. § 2612 (a)(1)(D) provides that an employee covered by the FMLA is entitled to leave “[b]eeause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” The statute defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospit…
discussed Cited as authority (rule) Kesler v. Barris, Sott, Denn & Driker, PLLC
E.D. Mich. · 2007 · confidence medium
See Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001); Rankin v. Seagate Tech., Inc., 246 F.3d 1145, 1148 (8th Cir.2001); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir.1997).
discussed Cited as authority (rule) Jones v. Denver Public Schools
10th Cir. · 2005 · confidence medium
That court has since reiterated that “the fact that an employee is ‘sufficiently ill to see a physician two times in a period of just a few days’ is all that FMLA requires for ‘continuing treatment.’ ” Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1149 (8th Cir.2001) (quoting Thorson, 205 F.3d at 379).
cited Cited as authority (rule) Willemssen v. Conveyor Co.
N.D. Iowa · 2005 · confidence medium
Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir.2001).
discussed Cited as authority (rule) Conrad v. Eaton Corp.
N.D. Iowa · 2004 · confidence medium
The Eighth Circuit Court of Appeals applies an objective test to determine whether an employee suffers from a “serious health condition,” which requires the plaintiff to prove: “(1) [he] had a ‘period of incapacity requiring absence from work,’ (2) that this period of incapacity exceeded three [consecutive] days, and (3) that [he] received ‘continuing treatment by ... a health care provider’ within the period.” *1001 Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (citing Thorson v. Gemini Inc., 205 F.3d 370 , 377 (8th Cir.2000) and Martyszenko, 120 F.3…
cited Cited as authority (rule) Jennings v. Mid-American Energy Co.
S.D. Iowa · 2003 · confidence medium
Id. at 1206-07 ; Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (applying objective test to substantive FMLA claim and rejecting use of burden-shifting analysis for same).
discussed Cited as authority (rule) Penny Bachelder Mark Bachelder v. America West Airlines, Inc. (2×)
9th Cir. · 2001 · confidence medium
Wayne Foundry Corp., 131 F.3d. 711, 712 (7th Cir.1997) (holding that a claim by a former employee that he was denied the use of FMLA leave is a claim of a substantive right, covered under (a)(1), and not (a)(2); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (same)).
cited Cited "see" Tonya Huber v. Westar Foods, Inc.
8th Cir. · 2024 · signal: see · confidence high
See Rankin v. Seagate Techs., Inc., 246 F.3d 1145 , 1147–49 (8th Cir. 2001).
discussed Cited "see" Schultz v. NW Permanente P.C.
D. Or. · 2020 · signal: see · confidence high
See Bachelder, 259 F.3d at 1125 (“[T]he ‘FMLA is not implicated and does not protect an employee against disciplinary action based upon [ ] absences’ if those absences are not taken for one of the reasons enumerated in the Act”) (quoting Rankin v. Seagate Techs., 246 F.3d 1145, 1147 (8th Cir. 2001)).
discussed Cited "see" Barger v. Jackson, Tennessee Hospital Co.
W.D. Tenn. · 2015 · signal: see · confidence high
See Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1147 (8th Cir.2001) (“We have previously observed that although conditions like the common cold or the flu will not routinely satisfy the requirements of a ‘serious health condition,’ absences resulting from such illnesses are protected under FMLA when the regulatory tests are met.” (citing Thorson v. Gemini, Inc., 205 F.3d 370 , 379 (8th Cir.2000))); WHD Op. FMLA-86 (Dec. 12, 1996) (The FMLA regulations also provide examples, in section 825.11[3(d) ], of conditions that ordinarily, unless complications arise, would not meet the …
discussed Cited "see" Kendrick Johnson v. Wheeling Machine Products
8th Cir. · 2015 · signal: see · confidence high
See Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir.2001) (“Where absences are not attributable to a ‘serious health condition,’ ... [the] FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.”); Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1195 (8th Cir.2000) (“Where an employee has not shown his absences to be a result of a serious health condition, he is not protected by the FMLA.”).
discussed Cited "see" Lubke v. City of Arlington
5th Cir. · 2006 · signal: see · confidence high
See Rankin v. Seagate Techs., Inc., 246 F.3d at 1145, 1148 (8th Cir.2001) (plaintiffs affidavit that she was too sick to work, her testimony of her conversations with nurses about her condition, and her medical records were “sufficient to create a genuine issue of material fact regarding her incapacity”); Marchisheck v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir.1999) (plaintiffs declaration that “I just did not and could not do anything for four or five days” created a disputed fact issue on incapacity).
discussed Cited "see" Lubke v. City of Arlington
5th Cir. · 2006 · signal: see · confidence high
See Rankin v. Seagate Techs., Inc., 246 F.3d at 1145, 1148 (8th Cir.2001) (plaintiff's affidavit that she was too sick to work, her testimony of her conversations with nurses about her condition, and her medical records were "sufficient to create a genuine issue of material fact regarding her incapacity"); Marchisheck v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir.1999) (plaintiff's declaration that "I just did not and could not do anything for four or five days" created a disputed fact issue on incapacity). 24 Finally, the City argues that, even if lay opinion may suffice to demonstrate a …
discussed Cited "see" Gurley v. Ameriwood Industries, Inc. (2×)
E.D. Mo. · 2002 · signal: see · confidence high
See, *975 e.g., Rankin v. Seagate Techs., Inc., 246 F.3d 1145 (8th Cir.2001); Bailey v. Amsted Indus., Inc., 172 F.3d 1041, 1045-46 (8th Cir.1999); Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir.1997) (cited with approval in Rankin, 246 F.3d at 1148 ).
cited Cited "see" Stiefel v. Allied Domecq Spirits & Wine U.S.A., Inc.
W.D. Ark. · 2002 · signal: see · confidence high
See Rankin v. Seagate Tech., 246 F.3d 1145, 1148 (8th Cir.2001).
discussed Cited "see" Morgan v. FBL Financial Services, Inc.
S.D. Iowa · 2001 · signal: see · confidence high
See Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (holding fired plaintiffs absences were attributable to “serious health condition,” and therefore FMLA was implicated and protected her against disciplinary action based on her absences; “[a]pplying rules designed for anti-discrimination laws to statutes creating substantive entitlements is apt to confuse”) (quoting Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir.1997) (declining to apply McDonnell Douglas analysis to plaintiffs claim he was improperly denied leave when he was fired)).
cited Cited "see" Teresa Ann Peters v. Mutual of Omaha
8th Cir. · 2001 · signal: see · confidence high
See Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1147 (8th Cir.2001) (FMLA); Cossette v. Minn. Power & Light, 188 F.3d 964, 972 (8th Cir.1999) *589 (retaliation); Snow v. Ridgeview Med.
discussed Cited "see, e.g." Wegelin v. Reading Hospital & Medical Center
E.D. Pa. · 2012 · signal: see, e.g. · confidence medium
See, e.g., Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 11481149 (8th Cir.2001) (plaintiffs affidavit testimony that she was “too sick to work” combined with medical records showing she suffered from the same symptoms were sufficient to create a genuine issue of material fact regarding plaintiffs incapacity); Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1074 (9th Cir.1999) (holding that a plaintiffs declaration that “I just did not and could not do anything for four or five days” creates “a disputed issued of fact and precludes summary judgment on the issue of ‘incapacity.’ �…
discussed Cited "see, e.g." Municipality of Anchorage v. Gregg
Alaska · 2004 · signal: see, e.g. · confidence medium
Bui any victim of domestic violence who meets the tests for a "serious health condition," as Gregg did, certainly has a right to statutory leave. 22 . 29 CFR. § 825.114(a)(2)G)(A) & (B); see, eg., Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir.2001); Thorson, 205 F.3d at 377; Martyszenko v. Safeway, Inc., 120 F.3d 120, 122-23 (8th Cir.1997). 23 .
discussed Cited "see, e.g." Rhoads v. Federal Deposit Insurance
4th Cir. · 2001 · signal: see also · confidence medium
See Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir.1997) (holding that FMLA interference suits are to be resolved “by asking whether the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims”); see also Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir.2001) (requiring plaintiff in FMLA action to prove a serious health condition pursuant to a three-prong objective test); cf. Miller v. AT & T Corp., 250 F.3d 820 (4th Cir.2001) (affirming summary judgment for plaintiff on question of defendant’s liability under …
discussed Cited "see, e.g." Rhoads v. Federal Deposit Insurance Corporation
4th Cir. · 2001 · signal: see also · confidence medium
See Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997) (holding that FMLA interference suits are to be resolved "by asking whether the plaintiff has established, by a preponderance of the evidence, that he is entitled to the benefit he claims"); see also Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148 (8th Cir. 2001) (requiring plaintiff in FMLA action to prove a serious health condition pursuant to a three-prong objective test); cf. Miller v. AT&T; Corp., 250 F.3d 820 , Nos. 00-1277, 00-1928, (4th Cir. May 7, 2001) (affirming summary judgment for plaintiff on question of …
Retrieving the full opinion text from the archive…
Rose M. RANKIN, Appellant,
v.
SEAGATE TECHNOLOGIES, INC., Appellee
00-1248.
Court of Appeals for the Eighth Circuit.
Apr 24, 2001.
246 F.3d 1145
Ruth Y. Ostrom, Mark A. Greenman, Minneapolis, MN, for appellant., James F. Baldwin, H. Le Phan, Minneapolis, MN, for appellee.
Wollman, Beam, Arnold.
Cited by 34 opinions  |  Published
WOLLMAN, Chief Judge.

Rose Rankin appeals from the district court’s adverse entry of summary judgment on her claim under the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (1994) (FMLA or the Act), and her common law claim for negligent infliction of emotional distress. We reverse and remand.

I.

We recite the facts in the light most favorable to Rankin, the non-moving party below. Rankin, a senior administrator at Seagate Technologies, Inc., became ill while at work on September 29, 1997. On September 30, her condition worsened to the point that she was vomiting in a work bathroom. She did not report for work on October 1 or on October 2, when she visited her health care provider for a regularly scheduled appointment. Although Rankin was not prescribed any medication or treatment related to her illness during this appointment, she informally discussed her condition with nurses at the clinic and was advised to treat her symptoms with over-the-counter medication. Rankin did not work on Friday, October 3, or on October 6, 7, or 8.

On Wednesday, October 8, Rankin consulted with her nurse practitioner, Lynn Sedlack. Sedlack’s notes indicate that Rankin complained of vomiting, coughing, congestion, and sleeplessness. After an examination, Sedlack concluded that Rankin was suffering from a viral illness and prescribed Tessalon Perles (a cough suppressant), Robitussin with codeine (a nighttime cough suppressant), Duratuss (a decongestant), and Proventil (an inhaler). Sedlack also furnished Rankin with a note that stated “may return to work on 10/13.” This note was provided to Seagate, on the company’s request, on October 15.

Rankin did not work from October 9 through October 16. On Wednesday, October 15, Rankin informed Seagate that she had scheduled another appointment with Sedlack for October 16. At this appointment, Rankin’s prescription for Robitussin was renewed, and she was prescribed Nebulizer with Albuterol (an inhaler), Z-Pack (an antibiotic), and Prednizone (an anti-inflammatory). Sed-lack also provided Rankin with a note indicating that she “should return to work on 10/20/97,” and instructed her to schedule another appointment on October 18 if. her condition had not improved. Rankin had additional appointments with Sedlack on October 22 and 24. Although Sedlack noted some improvement[*1147] in Rankin’s condition between these two visits, she provided Rankin with a note stating “may return to work on 10/27 or 10/28.”

Rankin contends that she notified Sea-gate at the onset of her illness and continued to update the company regarding her condition and the reason for her absences from work. Nevertheless, Seagate fired Rankin on October 16, 1997, citing excessive absenteeism. Although the parties dispute the details of Rankin’s employment history with the company, Rankin concedes that she had received two written attendance warnings pursuant to Seagate’s progressive discipline policy, and that she was notified in a September 26, 1997, performance evaluation that further absences could result in the termination of her employment.

Rankin thereafter filed suit in district court, alleging violations of FMLA and negligent infliction of emotional distress. The district court granted Sea-gate’s motion for summary judgment, concluding that Rankin failed to produce sufficient evidence indicating that she suffered from a “serious health condition” as defined by the Act. We review the district court’s decision to grant. summary judgment de novo, and we will affirm only if there are no genuine issues of material fact. Thorson v. Gemini, Inc., 205 F.3d 370, 375-76 (8th Cir.2000); see Fed. R.Civ.P. 56(c).

II.

FMLA allows eligible employees to take up to a total of 12 workweeks of leave per year under various circumstances, including when an employee has a “serious health condition” that renders the employee unable to perform the functions of his or her job. 29 U.S.C. § 2612(a)(1)(D). The definition of a “serious health condition” includes an “illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B). The regulations promulgated by the Department of Labor pursuant to the Act further state:

(2) Continuing treatment by a health care provider.
A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(1) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

29 C.F.R. § 825.114(a)(2).

We have previously observed that although conditions like the common cold or the flu will not routinely satisfy the requirements of a “serious health condition,” absences resulting from such illnesses are protected under FMLA when the regulatory tests are met. Thorson, 205 F.3d at 379. Where absences are not attributable to a “serious health condition,” however, FMLA is not implicated and does not protect an employee against disciplinary action based upon such absences.[*1148] Bailey v. Amsted Indus., Inc., 172 F.3d 1041, 1045-46 (8th Cir.1999).

Initially, we reject Seagate’s contention that this case should be analyzed under the familiar McDonnell Douglas burden-shifting scheme. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although we acknowledge that some courts have utilized a burden-shifting analysis in addressing substantive claims under FMLA, see, e.g., Beno v. United Telephone Co. of Florida, 969 F.Supp. 723, 724-25 (M.D.Fla.1997), Kaylor v. Fannin Reg’l Hosp., Inc., 946 F.Supp. 988, 1000-01 (N.D.Ga.1996), Oswalt v. Sara Lee Corp., 889 F.Supp. 253, 259 (N.D.Miss.1995), we have previously observed that a “ ‘serious health condition’ should be defined by an objective test that could be applied consistently based on the facts of each case.” [1] Thorson, 205 F.3d at 376. We decline to apply the McDonnell Douglas analysis in this setting because, as the Seventh Circuit has observed, “[a]l-though a burden-shifting approach can be useful in discrimination cases as a heuristic, claims under the FMLA do not depend on discrimination.” Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir.1997). Without belaboring the point, we agree with our sister circuit’s conclusion that “[ajpplying rules designed for anti-discrimination laws to statutes creating substantive entitlements is apt to confuse.” Id. Accordingly, we proceed as we have in the past to “consider the factors comprising the objective test and the evidence in the record of this case to determine if the District Court was correct in granting summary judgment.” [2] Thorson, 205 F.3d at 377.

To meet the requirements of the objective test, Rankin was required to prove (1) that she had a “period of incapacity requiring absence from work,” (2) that this period of incapacity exceeded three days, and (3) that she received “continuing treatment by ... a health care provider” within the period. Thorson, 205 F.3d at 377; Martyszenko v. Safeway, Inc., 120 F.3d 120, 122-23 (8th Cir.1997) (incapacity required to trigger FMLA protection). Summary judgment was proper if Rankin failed to create a genuine issue of material fact as to any of these elements. See Wilking v. County of Ramsey, 153 F.3d 869, 873 (8th Cir.1998).

The district court concluded that Rankin failed to produce sufficient evidence demonstrating.that she was incapacitated prior to her October 8 appointment with Sedlack. The court concluded that the only evidence indicating incapacity during this time period was Rankin’s own affidavit that she was “too sick to work” and that the affidavit alone was insufficient to preclude summary judgment. We respectfully disagree. Although we agree that Rankin did not produce an overabundance of evidence, we believe that her affidavit testimony that she was “too sick to work,” her testimony regarding her conversation with nurses about her condition[*1149] at her October 2 appointment, and her medical records from the October 8 appointment that showed that she claimed that she had been suffering from the same symptoms (including sleeplessness and fatigue) for a week were, in sum, sufficient to create a genuine issue of material fact regarding her incapacity prior to October 8, 1997. See Marchisheck v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir.1999) (holding that a plaintiffs declaration that “I just did not and could not do anything for four or five days ...” creates “a disputed issue of fact and precludes summary judgment on the issue of ‘incapacity’ ”).

We also disagree with the district court’s analysis of the “continuing treatment” aspect of Rankin’s FMLA claim. The court concluded that because Sedlack did not prescribe an antibiotic for Rankin at the October 8 appointment, Rankin could not demonstrate that she received “continuing treatment” between October 8 and October 15 or at anytime prior to her termination. Although the district court conceded that Rankin could demonstrate “continuing treatment” as of her October 16 appointment, it found this fact to be irrelevant because Rankin had already been fired. Under our reading of the relevant regulation, however, FMLA protection applies to periods of incapacity related to a serious health condition and “any subsequent treatment or period of incapacity relating to the same condition” that also involves two visits to a health care provider or one visit followed by a regimen of continuing treatment. 29 C.F.R. § 825.114(a)(2). Thus, the fact that an employee is “sufficiently ill to see a physician two times in a period of just a few days” is all that FMLA requires for “continuing treatment.” Thorson, 205 F.3d at 379. Rankin clearly fulfilled this requirement.

Accordingly, we reverse the district court’s grant of summary judgment on Rankin’s FMLA claim and remand for further proceedings not inconsistent with this opinion. Likewise, because the district court granted Seagate’s motion for summary judgment on Rankin’s common law claim for negligent infliction of emotional distress based solely on its conclusion that there was no FMLA violation, we reverse the summary judgment on that claim and remand the claim for further consideration.

1

. Our analysis in Thorson involved interim regulations promulgated by the Department of Labor pursuant to the Act, whereas this case involves the final regulations. As we observed in Thorson, however, the final regulations "expound upon and rearrange some of the language that appeared in the interim regulations, but they do not change the substance of the rule." Thorson, 205 F.3d at 377. Accordingly, our analysis in Thorson applies here.

2

. We leave open the question of whether a burden-shifting analysis is appropriate for claims under 29 U.S.C. § 2615(b), the anti-retaliation provision of FMLA. Cf. Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st. Cir.1998) (observing that FMLA creates substantive rights and prohibits discrimination based on the exercise of those rights).