The court should grant summary judgment in favor of the defendant Urbansville Aquarium Corporation. The plaintiff Nancy Knight claimed the aquarium violated the Family Medical Leave Act by terminating her after a four-week absence visiting her father Wayne Knight in Las Vegas. However, Knight's activities in Las Vegas, which involved taking care of her father's therapy dog and playing board games with him for an hour a week, do not constitute "caring for" her father under the FMLA. As such, the aquarium is entitled to judgment as the plaintiff cannot show she was engaged in a covered activity protected by the FMLA.

1. UNITED STATES DISTRICT COURT
DISTRICT OF MOOT
______________________________________________________________________________
MS. NANCY KNIGHT,
Plaintiff, Civil No. 14-3456 (ABC/DEF)
v.
URBANSVILLE AQUARIUM
CORPORATION,
Defendant.
______________________________________________________________________________
INTRODUCTION
Due to the fact that Defendant Urbansville Aquarium Corporation (hereinafter
“Aquarium”), is entitled to judgment as a matter of the law in this case, the Court should find in
favor of Aquarium on this motion for summary judgment. Plaintiff claimed Aquarium violated the
Family Medical Leave Act (hereinafter “FMLA”), 29 U.S.C. § 2611, by terminating her for a
pattern of unexcused absences during her trip to Las Vegas from September 2014 through October
2014. However, Plaintiff’s alleged request for leave is not covered by the definition of “care” under
the FMLA, 29 U.S.C. § 2612(a)(1)(C) (2009). Predicated on the plain meaning, legislative intent
and purpose, agency and judicial interpretations of 29 U.S.C. § 2612(a)(1)(C) (2009), and
incorporating by reference the opinion of Dr. Thaddeus Green, it is clear that Plaintiff’s four week
trip to Las Vegas is not covered by the definition of “care” in the FMLA. Accordingly, this Court
should grant summary judgment in favor of Aquarium.
STATEMENT OF FACTS
Plaintiff was employed as an Animal Technician at Aquarium, and her supervisor was Ms.
Caroline Juniper. (Compl. ¶ 7.) On September 18, 2014, Plaintiff’s father, Mr. Wayne Knight, was
MEMORANDUM OF LAW IN
SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

2. 2
diagnosed with Billiard Halls Syndrome (hereinafter “BHS”). (W. Knight Decl. ¶ 2.) Mr. Knight
was subsequently told by Drs. Reginald White and Thaddeus Green of Urbansville University
Hospital that effective treatment for his disease could be administered in Urbansville, but the best
treatment facility was the Colonel S. Mustard Institute (hereinafter “CSM Institute”) in Las Vegas,
Nevada. (W. Knight Decl. ¶ 3.) Even though he could have received effective treatment at
Urbansville University Hospital, Mr. Knight decided to go to Las Vegas, insisting he bring his dog
Mittens with him to the CSM Institute. (W. Knight Decl. ¶ 4.) After Mr. Knight asked if “bringing
Mittens to Las Vegas would be alright,” Drs. White and Green informed him that, while BHS is
highly contagious between humans, it is not transmissible to dogs. (Id.) However, Dr. Green told
Mr. Knight that a therapy dog was not medically necessary for the BHS drug treatment and, if
anything, would likely make it difficult for Mr. Knight to obtain the amount of rest he needed. (Id.)
Dr. White allegedly disagreed with Dr. Green and told Mr. Knight that bringing the dog could help
Mr. Knight manage his stress levels and potentially make his BHS drugs more effective. (Id.)
Following his diagnosis on the morning of September 18, Mr. Knight allegedly contacted
his three children. (W. Knight Decl. ¶ 6.) Then, even though Mr. Knight admits he and Plaintiff
“have drifted apart over the years,” speaking only once or twice a year, Plaintiff volunteered to
make the trip to Las Vegas the following day. (Id.) Plaintiff admitted she saw the trip to Las Vegas
“as a great opportunity to reconnect with [her father] and to see Las Vegas for the first time.” (Pl.’s
Decl. ¶ 2.) However, Plaintiff is admittedly an avid poker player, and also asserted the trip to Las
Vegas would “give [her] a chance to test [her] poker skills against the best.” (Id.)
The same day of his diagnosis on September 18, Mr. Knight wrote a letter to his insurance
company, Cash Savers Insurance Company (hereinafter “Savers Insurance”) requesting funds to
cover Plaintiff’s airfare and rent for her trip to Las Vegas. (W. Knight Fax to Savers Insurance

3. 3
9/18/2014.) Mr. Knight substantiated his claim for these funds by stating that Plaintiff was joining
him in Las Vegas to take care of Mittens and that “Mittens [would] act, in effect, as a secondary
medication to supplement [his] treatment for BHS.” (Id.) Mr. Knight also attached a letter from
Dr. White, in which Dr. White states that Plaintiff and Mittens “will both be providing valuable
assistance to Mr. Knight” and that Mitten’s presence “should ease [Mr. Knight’s] anxiety and
potentially improve the odds that his other treatment will be successful.” (emphasis added) (Dr.
White Letter to W. Knight 9/18/14.)
On the morning of September 19, Mr. Knight contacted CSM Institute via e-mail about its
therapy dog policies. (W. Knight Email to Mr. Valencia 9/19/14.) CSM Institute responded that
therapy dogs are only allowed in the facility from 9:00 a.m. to 5:00 p.m. (Id.) CSM Institute also
informed Mr. Knight at this time that other therapy dogs were available in the Las Vegas area.
(Mr. Valencia Email to W. Knight 9/19/14.) That afternoon, Savers Insurance sent a letter to Mr.
Knight denying coverage of Plaintiff’s transportation and housing cost. (Savers Insurance Letter
to W. Knight 9/19/14.) Savers Insurance enclosed a letter from Mr. Knight’s doctor, Dr. Green,
which stood as the basis for their denial of coverage for Plaintiff’s transportation and housing
costs. (Id.) In Dr. Green’s letter he specifically states that “[Plaintiff’s] presence in Las Vegas to
take care of the therapy dog is not medically necessary, and [he is] skeptical that her presence
would do anything except bother Mr. Knight.” (Dr. Green Letter to Savers Insurance 9/19/14.) Dr.
Green based this hypothesis on his observation of Plaintiff and Mr. Knight interacting in the
hospital, opining that their relationship did “not strike [him] as [a relationship] that would be likely
to help Mr. Knight maintain positive morale.” (Id.) Additionally, Dr. Green observed that “the
nature of Mr. Knight’s illness is such that the only thing that matters is whether his body accepts
the medication,” and to his knowledge there is no evidence which shows that a therapy dog would

4. 4
“have any impact on Mr. Knight’s body’s ability to accept the medication.” (Id.) Thus, Dr. Green
concluded neither Plaintiff nor Mittens were necessary for the successful treatment of Mr. Knight.
(Id.)
However, Mr. Knight was set on bringing Mittens. (W. Knight Decl. ¶ 6.) Plaintiff still
needed to figure out a way to get time off of her job at Aquarium, as she had already spent all of
her vacation time on a trip to Belize. (Pl.’s Decl. ¶ 3.) So, on September 19 Plaintiff handed in her
application for unpaid leave under the FMLA to her supervisor Ms. Juniper. (Id.) Without waiting
for approval, Plaintiff left for Las Vegas on September 20. (Id.) On September 24, Aquarium
denied Plaintiff’s application for leave under the FMLA. (Compl. ¶ 17.)
Because her father needed to be kept quarantined throughout the duration of Plaintiff’s stay
in Las Vegas, Plaintiff’s relevant activities included simply dropping Mittens off at his room and
picking the dog back up at 5:00 p.m. (Pl.’s Decl. ¶ 4.) Mr. Knight admitted that he “did not spend
a great deal of time with [Plaintiff]” over the course of her stay in Las Vegas. (W. Knight Decl. ¶
7.) The only time that Mr. Knight would see Plaintiff was when she would pick up Mittens from
the CSM Institute to take him for a walk and when she played board games with Mr. Knight for
around an hour a week, through the glass of Mr. Knight’s room. (Id.) Instead of spending any
significant amount of time with her father, Plaintiff spent her last two weeks in Las Vegas with
her fiancé, describing the experience as “a good trip to Vegas.” (Pl.’s Decl. ¶ 6.)
Plaintiff was absent from work for a period of four weeks from September 22, 2014 until
her return to Urbansville on October 20, 2014. (Compl. ¶ 16.) On October 21, 2014, due to her
absence without authorization for a period of four weeks, Plaintiff’s employment at Urbansville
Aquarium was terminated. (Compl. ¶ 18.) Plaintiff subsequently filed a complaint under FMLA
with this Court on December 20, 2014. (Compl.)

5. 5
STANDARD OF REVIEW
A summary judgment movant bears the burden of showing the court “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of the
law.” Fed. R. Civ. Proc. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally,
“[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient [to defeat a summary judgment motion]; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Thus, in order to survive a summary judgment motion, the non-movant must show that there is a
genuine dispute as to the material facts of a case and that a jury could reasonably find for its
position. If the movant shows there is no such factual dispute, and no reasonable jury could find
in favor of the non-movant, the movant is entitled to judgment as a matter of the law on such issue.
ARGUMENT
It is clear from the plain meaning of 29 U.S.C. § 2612(a)(1)(C) (2009) and the undisputed
material facts that Plaintiff did not “care for” her father during her four weeks of absences from
her employment at Aquarium. Thus, because no reasonable juror could find for Plaintiff on this
issue, Aquarium is entitled to judgment as a matter of the law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). Additionally, the intention of the legislature enacting the FMLA,
interpretations of the Department of Labor, the interpretations of circuit courts across the country,
as well as policy reasons suggest that Plaintiff’s four week trip to Las Vegas was not covered by
the definition of “care” in the FMLA. Moskal v. United States, 498 U.S. 103, 108 (1990) (stating
that courts look to legislative history, motivating policies and judicial interpretations for guidance
in statutory interpretation after they look to the language and structure of the statute). Accordingly,
this Court should grant summary judgment in favor of Aquarium.

6. 6
I. PLAINTIFF DID NOT PROVIDE “CARE” PURSUANT TO THE WORD’S PLAIN
MEANING IN THE FMLA DURING HER ABSENCE FROM EMPLOYMENT AT
AQUARIUM, THUS AQUARIUM IS ENTITLED TO JUDGEMENT AS A
MATTER OF THE LAW.
When interpreting the scope of a statute, courts look first to the plain meaning of the words
used. Moskal v. United States, 498 U.S. 103, 108 (1990). In determining the plain meaning of the
words used, courts look to contemporary dictionary definitions of the words in their context.
United States v. Gonzales, 520 U.S. 1, 5 (1997). The relevant section of the FMLA in this motion
reads that eligible employees are entitled to twelve (12) workweeks of leave during a twelve (12)-
month period “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if
such spouse, son, daughter, or parent has a serious health condition.” (emphasis added) 29 U.S.C.
2612(a)(1)(C) (2009). One dictionary defines “care for” as “[l]ook after and provide for the needs
of.” Oxford Dictionaries, (emphasis added)
http://www.oxforddictionaries.com/definition/english/care (last visited Feb. 15, 2015). Another
dictionary ascribes “care for” the meaning “to do the necessary things for someone who needs help
or protection.” Macmillan Dictionary, (emphasis added)
http://www.macmillandictionary.com/us/dictionary/american/care-for (last visited Feb. 15, 2015).
A third dictionary provides that “care for” means “to protect someone or something and provide
the things they need, especially someone who is young, old or ill.” (emphasis added) Cambridge
Dictionaries, http://dictionary.cambridge.org/us/dictionary/british/care-for-sb (last visited Feb. 15,
2015). Thus, all of these dictionaries define “care” as providing for someone’s needs. Accordingly,
no reasonable juror could find that Plaintiff provided “care” for her father in this case, as all she
did during her four weeks of absences was take care of her father’s dog and play board games with
her father. Specifically, Dr. Green testified that “the nature of Mr. Knight’s illness is such that the
only thing that matters is whether his body accepts the medication” and that a therapy dog will not

7. 7
have any impact on the acceptance of medication. (Dr. Green Letter to Savers Insurance 9/19/14.)
While Dr. White contradicted Dr. Green, asserting “the presence of his therapy dog should ease
[Mr. Knight’s] anxiety and potentially improve the odds that his other treatment will be
successful,” the fact that Dr. White hedges his language, using the words “should” and
“potentially,” suggests that he doubts the validity of this opinion and thus needs to hedge his
language in order to save his medical reputation. (Dr. White letter to W. Knight 9/18/14.)
Furthermore, even if Dr. White’s opinion is taken as valid, it does not change the fact that Mittens,
and tangentially Plaintiff, were not necessary to the amelioration of Mr. Knight’s BHS—as the
dog’s presence would admittedly only “potentially improve” the likelihood Mr. Knight would get
better. (Id.) Consequently, because neither Mittens nor Plaintiff’s board games were necessary to
Mr. Knight’s needs, primarily the amelioration of his BHS, Plaintiff’s activities in Las Vegas
cannot reasonably be construed to be covered by the plain meaning of “care” in 29 U.S.C.
2612(a)(1)(C) (2009). Accordingly, this Court should grant judgment as a matter of the law for
Aquarium on this motion.
Further, when interpreting a statute in which “items expressed are members of an
associated group or series,” the doctrine expressio unius est exclusio alterius justifies “the
inference that items not mentioned were excluded by deliberate choice, not inadvertence.” (internal
quotations omitted) Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). The relevant section
of the FMLA makes eligible employees entitled to leave “to care for the spouse, or a son, daughter,
or parent, of the employee. . . .” (emphasis added) 29 U.S.C. 2612(a)(1)(C) (2009). Accordingly,
“spouse,” “son,” “daughter,” and “parent,” make up the associated group, or human beings who
are close in relation to the relevant employee, to which expressio unius applies. Consequently, its
application justifies the inference that Congress deliberately excluded therapy dogs, or anyone else

8. 8
who is not a close family member with a “serious health condition,” as it meant for the section
only to apply to the direct “care” administered by the eligible employee to the family member.
Thus, even if a juror was to find that Mittens provided “care” for Mr. Knight in this case under the
FMLA, a reasonable juror could not conclude that providing “care” for Mittens was covered by
the plain meaning of “care” in 29 U.S.C. 2612(a)(1)(C) (2009). As a result of the fact that no
reasonable juror on the undisputed material facts could construe Plaintiff’s activities in Las Vegas
as providing “care” within the definition provided in the FMLA, this Court should grant summary
judgment in favor of Aquarium on this motion.
II. THE LEGISLATIVE INTENT BEHIND FMLA SHOWS THAT PLAINTIFF DID
NOT PROVIDE “CARE” AS COVERED BY ITS PROVISIONS, THUS
AQUARIUM IS ENTITLED TO JUDGMENT AS A MATTER OF THE LAW.
If the meaning and scope of a statute remain ambiguous after looking at the plain meaning
and structure of the words, courts look to the legislative history and purpose of the statute for
guidance. Moskal v. United States, 498 U.S. 103, 108 (1990). Two of the primary purposes
Congress gave for the FMLA are “to entitle employees to take reasonable leave . . .for the care of
a child, spouse, or parent” and “to accomplish [these] purposes . . .in a manner that accommodates
the legitimate interests of employers.” (emphasis added) H.R. Rep. 103-8, at 2 (1993). The
application of the latter purpose to the former explicitly suggests that both “reasonable leave” and
“care” should be construed narrowly so that employees are not taking advantage of the Act at the
expense of their employers. Read in this way, a reasonable juror could not possibly construe “care”
in the FMLA as providing indirect care to a therapy dog which does not in fact provide for the
needs of the seriously ill family member. Nor could a reasonable juror read “reasonable leave” to
encompass four consecutive weeks during which the employee spent little more than an hour a
week with her seriously ill father. Consequently, accounting for the FMLA’s purpose pursuant to

9. 9
cited legislative history, no reasonable juror could find that Plaintiff’s activities in Las Vegas are
covered by the FMLA, and thus Aquarium is entitled to judgment as a matter of the law on this
motion.
Further, the specific legislative interpretations of “to care for” in 29 U.S.C. 2612(a)(1)(C)
(2009) only strengthen this conclusion. While Congress states that it “intended [‘to care for’] to be
read broadly to include both physical and psychological care,” it did so in the context that:
Parents provide far greater psychological comfort and reassurance
to a seriously ill child than others not so closely tied to the child. In
some cases there is no one other than the child's parents to care for
the child. The same is often true for adults caring for a seriously ill
parent or spouse.
S. Rep. 103-3, at 24 (1993), reprinted in U.S.C.C.A.N. 3, 26. First, Plaintiff did not provide any
physical care to her father, as she did not enter his room during her four weeks of absences. (Pl.’s
Decl. ¶ 4.) Additionally, far from providing “psychological comfort and reassurance,” Plaintiff’s
limited presence most likely only bothered Mr. Knight. (Dr. Green Letter to Savers Insurance
9/19/14.) Thus no reasonable juror could find, pursuant to the enacting legislature’s intent, that
Plaintiff is covered by the FMLA, and Aquarium is consequently entitled to judgment as a matter
of the law.
Finally, Congress commented that “[‘to care for’] is also intended to assure employees the
right to a period of leave to attend to a child’s, spouse’s, or parent’s basic needs . . . .” (emphasis
added) S. Rep. 103-3, at 24 (1993), reprinted in U.S.C.C.A.N. 3, 26. This comment strengthens
the fact that the plain meaning of “care” as construed in the FMLA pertains to providing for a
seriously ill family member’s needs; and, as already established, because neither Mittens nor
Plaintiff were essential to the amelioration of Mr. Knight’s BHS, no reasonable juror could find

10. 10
Plaintiff covered by the FMLA in this case. (See, e.g., Dr. Green Letter to Savers Insurance
9/19/14.) Accordingly, Aquarium is entitled to judgment as a matter of the law on this motion.
III. THE DEPARTMENT OF LABOR’S INTERPRETATIONS OF THE FMLA SHOW
THAT PLAINTIFF DID NOT PROVIDE THE “CARE” THAT THE FMLA
PROTECTS, THUS AQUARIUM IS ENTITLED TO JUDGMENT AS A MATTER
OF THE LAW.
If Congress has not spoken directly on an issue in a statute, courts must give deference to
agency interpretations of statutes when it “appears that Congress delegated authority to the agency
generally to make rules carrying the force of law,” and the agency interpretation claiming
deference was promulgated in exercise of that authority. United States v. Mead Corp., 533 U.S.
218, 226-27 (2001). Further, in order to grant deference to an agency interpretation, a court must
determine it is not “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, USA v.
Natural Res. Def. Council, 467 U.S. 837, 844 (1984). However, “[i]nterpretations such as those in
opinion letters—like interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style
deference.” Christensen v. Harris County, 529 U.S. 576, 587 (2000). Thus the weight afforded by
courts to agency interpretations of their own regulations normally “will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier
and later pronouncements,” and any other factor that may make it persuasive authority. Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944).
If this Court feels the meaning of “care” in the FMLA is still ambiguous after the arguments
posited above, the Department of Labor’s (hereinafter “DOL”) regulation is entitled to Chevron
deference, as Congress explicitly granted it the power to “prescribe such regulations as are
necessary to carry out” the provisions of the FMLA. 29 U.S.C. § 2654 (1993). The DOL’s
regulation defines “care” as construed in 29 U.S.C. 2612(a)(1)(C) (2009) to include “providing

11. 11
psychological comfort and reassurance which would be beneficial to a child, spouse or parent with
a serious health condition . . . .” 29 C.F.R. § 825.124(a) (2013). Thus the only difference between
this regulation and S. Rep. 103-3, at 24 (1993) is the qualification of “care” to be “beneficial” to
the family member. This albeit obvious qualification to the definition of “care” in 29 U.S.C.
2612(a)(1)(C) (2009) unambiguously demonstrates that Plaintiff’s activities during her four weeks
of absences from Aquarium are not covered by the FMLA. Specifically, as Dr. Green stated,
neither Plaintiff’s nor Mittens’ presence would have any effect on the amelioration of Mr. Knight’s
BHS, and thus could not possibly be beneficial to him. (Dr. Green Letter to Savers Insurance
9/19/14.) Further, given the fact that Plaintiff and her father had a poor relationship (see, e.g., W.
Knight Decl. ¶ 6; Dr. Green Letter to Savers Insurance 9/19/14.), it is likely that Plaintiff’s presence
in Las Vegas only bothered Mr. Knight and thus had a detrimental effect on him. Additionally,
even if Plaintiff’s presence did not bother Mr. Knight, being in proximity to him for little more
than one hour a week could not possibly be construed by a reasonable juror as being beneficial to
Mr. Knight’s health so as to satisfy the interpretation in 29 C.F.R. § 825.124(a) (2013). Finally,
the application of expressio unius once again implies that the DOL interpreted “care” as providing
direct care, as it did not include any language referring to caring for individuals outside of the
protected group, or close family members. Thus, based on 29 C.F.R. § 825.124(a) (2013), no
reasonable juror could find for the Plaintiff on the undisputed facts and Aquarium is accordingly
entitled to summary judgment in its favor.
If this Court finds 29 C.F.R. § 825.124(a) (2013) to leave the meaning of “care” in the
FMLA ambiguous, it must grant full deference to the DOL’s interpretations of this regulation.
Auer v. Robins, 519 U.S. 452, 457 (1997). If, however, this Court finds that 29 C.F.R. § 825.124(a)
(2013) provides a significantly clear interpretation of “care,” it should still give the DOL’s

12. 12
interpretations the “power to persuade . . . .” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
The DOL’s interpretations of 29 C.F.R. § 825.124(a) (2013) reflect S. Rep. 103-3, at 24 (1993),
defining “care” as “providing physical and psychological care and comfort . . . .” Opinion Letter
Family Medical Leave Act (FMLA), 1998 WL 1147751, at 1 (Feb. 27, 1998); U.S. Dep’t of Labor,
Field Operations Handbook: The Family and Medical Leave Act (FMLA), at 22 (2013) (defining
“care” as “[p]roviding psychological comfort and reassurance to a child, parent, or spouse . . . .”).
Accordingly, these interpretations further strengthen the arguments posited above for why Plaintiff
did not “care” for her father as defined in 29 U.S.C. 2612(a)(1)(C) (2009). Thus no reasonable
juror, on the undisputed facts of this case, could find that Plaintiff is covered by the definition of
“care” in 29 U.S.C. 2612(a)(1)(C) (2009), and therefore this Court should find in favor of
Aquarium on this motion.
IV. THE JUDICIAL INTERPRETATIONS OF CIRCUIT COURTS ACROSS THE U.S.
SUGGEST THE FMLA PROVISION “CARE” SHOULD NOT BE CONSTRUED
SO BROADLY AS TO ENCOMPASS PLAINTIFF’S ACTIONS IN THIS CASE,
THUS AQUARIUM IS ENTITLED TO JUDGEMENT AS A MATTER OF THE
LAW.
Courts are entitled to look at prior judicial constructions of a statute if they “follow[] from
the unambiguous terms of the statute and thus leave[] no room for agency discretion.” Nat’l Cable
& Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 983 (2005). Thus, because the plain
meaning and structure of 29 U.S.C. 2612(a)(1)(C) (2009) is unambiguous, and the interpretation
of “care” is one of first instance in this circuit, this Court should look to the interpretations of other
circuits to guide its decision on this motion. First, many circuits across the country have interpreted
“care” in the FMLA to require the direct administration of physical or psychological comfort and
reassurance which is beneficial to the employee’s seriously ill family member. See, e.g.,
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 305–06 (3d Cir. 2012) (holding that

13. 13
a reasonable factfinder could find the employee covered by the FMLA for providing direct
psychological comfort to her mother in the emergency room); Ballard v. Chicago Park Dist., 741
F.3d 838, 839 (7th Cir. 2014) (holding that an employee who cooked her mother’s meals,
administered insulin and other medication, drained fluids from her mother’s heart, bathed and
dressed her mother was covered by the FMLA). Further, courts tend to find that “care” under the
FMLA necessitates “close and continuing proximity to the ill family member.” (emphasis added)
Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005) (holding that an employee
traveling across the country to retrieve a family car and calling his wife to reassure her while she
was in the hospital was not covered by the FMLA); see, e.g., Scamihorn v. Gen. Truck Drivers,
Office, Food & Warehouse Union, 282 F.3d 1078, 1080–84 (9th Cir. 2002) (holding that the
employee was covered under the FMLA when he moved in with his father, provided direct
psychological comfort and support for his father’s depression through daily conversations, and
drove his father to his psychologist); Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1076 (9th
Cir. 1999) (holding that “care” under the FMLA “involves some level of participation in ongoing
treatment of that condition”). Additionally, courts have held that satisfying the definition of “care”
under the FMLA requires an eligible employee to show that he/she provided some level of care to
the seriously ill family member on all of his/her absences from employment. Miller v. State of
Nebraska Dept. of Econ. Dev., 467 Fed. App’x. 536, 540 (8th Cir. 2012). Finally, a recent circuit
court decision which stands as an exception to these general jurisprudential trends pertains to
Gienapp v. Harbor Crest, 756 F.3d 527, 531 (7th Cir. 2014) (holding that the employee might be
covered by the FMLA if providing care to her grandchildren was found to be beneficial to her
daughter’s health). However, Gienapp is distinguishable from the case at bar for two reasons: (1)
taking care of someone’s children is a much greater and different task than taking care of

14. 14
someone’s dog, and (2) Dr. Green’s letter already establishes that Mittens could not have had an
effect on the amelioration of Mr. Knight’s BHS. (Dr. Green Letter to Savers Insurance 9/19/14.)
Accordingly, a reasonable juror could not find on the facts of this case that Plaintiff is
covered by the FMLA, as caring for Mittens is not directly caring for Mr. Knight. Further, the
record supports the conclusion that neither Plaintiff, nor Mittens was in close and continuing
proximity to Mr. Knight on every day of her absences, as she only dropped Mittens off Monday
through Friday (Pl.’s Decl. ¶ 4), and only spent around an hour per week with her father (W. Knight
Decl. ¶ 7). Thus, even if a juror were to find on the facts of this case that Plaintiff was providing
“care” when she was playing board games with her father or taking care of Mittens, no reasonable
juror could find that these activities were sufficient as to be covered by the FMLA. As a result,
this Court should find in favor of Aquarium on this summary judgment motion.
V. BECAUSE IT WOULD BE BAD PUBLIC POLICY TO CONSTRUE “CARE” IN
FMLA TO INCLUDE THE ACTIONS OF THE PLAINTIFF IN THIS CASE,
AQUARIUM IS ENTITLED TO JUDGMENT AS A MATTER OF THE LAW.
As the baby-boomer generation comes of age, the number of Americans taking care of
elderly parents is going to increase exponentially in the years to come. Specifically, by 2020 40%
of the American workforce expects to care for an elderly relative, and by 2030 20% of Americans
will be 65 and older. Peggie Smith, Elder Care, Gender, and Work: The Work-Family Issue of the
21st Century, 25 Berkeley J. Emp. & Lab. L. 351, 352 (2004). Thus, the number of employees
bringing FMLA claims will only increase in the years to come, correlating with the increase in
employees needing leave to care for elderly parents. Consequently, a reading of “care” so broad
as to apply to the circumstances of this case will only incentivize the bringing of FMLA claims
which are already expected to increase exponentially. This will put an extreme burden on
employers, and especially smaller businesses that cannot afford litigation or for their employees
to be taking leave ad libitum. As a result, a decision in favor of Plaintiff in this case will not only

15. 15
hurt the American economy, but will completely contradict one of the primary purposes of the
FMLA: to “accommodate the legitimate interests of employers.” H.R. Rep. 103-8, at 2 (1993).
Accordingly, this Court should grant judgment as a matter of the law in favor of Aquarium on this
motion.
CONCLUSION
The plain meaning of the Family and Medical Leave Act (1993) shows that Plaintiff’s
actions during her four weeks of absences from work at Aquarium are not covered by the definition
of “care” under 29 U.S.C. § 2612(a)(1)(C) (2009), and thus Aquarium is entitled to judgment as a
matter of the law. The intent of the legislature enacting FMLA, the Department of Labor’s
interpretations of the Act, judicial interpretations in circuits across the union, and policy reasons
all support this conclusion, and caution courts against reading “care” to include the circumstances
of this case. Accordingly, because no reasonable juror could find in favor of the Plaintiff in the
question at bar on the material facts of this case, this Court should grant summary judgment in
favor of Aquarium.