Budhun v. Reading Hospital & Medical Center , 765 F.3d 245 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-4625
_____________
VANESSA BUDHUN,
Appellant
v.
READING HOSPITAL AND MEDICAL CENTER
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 10-cv-06921)
District Judge: Hon. Lawrence F. Stengel
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 10, 2014
Before: CHAGARES, SHWARTZ, and ALDISERT,
Circuit Judges.
(Filed: August 27, 2014)
Justin L. Swidler, Esq.
Swartz Swidler
1101 Kings Highway North
Suite 402
Cherry Hill, NJ 08034
Counsel for Appellant
Vincent Candiello, Esq.
Post & Schell
17 North 2nd Street
12th Floor
Harrisburg, PA 17101
Counsel for Appellee
____________
OPINION
____________
CHAGARES, Circuit Judge.
Vanessa Budhun appeals the District Court’s grant of
summary judgment to her employer, The Reading Hospital
and Medical Center (“Reading”) on her Family Medical
Leave Act (“FMLA”), 29 U.S.C. §§ 2691, et seq.,
interference and retaliation claims. She also appeals the
District Court’s denial of her motion for leave to amend her
complaint to add a claim for violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. For
the reasons that follow, we will vacate the judgment of the
District Court with respect to her FMLA claims and affirm
the District Court’s denial of her motion for leave to amend
her complaint.
I.
The following facts are undisputed unless otherwise
noted. In 2008, Budhun was hired by Berkshire Health
Partners (“BHP”), an affiliate of Reading, as a credentialing
assistant. The written job description for this position
required her to generate and maintain records, and to
demonstrate “efficiency and accuracy in the credentialing” of
network healthcare providers. Appendix (“App.”) 140. The
written job description noted that the job required preparing
and mailing credentialing packets, processing and verifying
credentialing information, performing data entry, scanning,
and similar tasks. App. 140-43. Budhun estimated that
approximately sixty percent of her job was typing, a figure
Reading does not contest. App. 82. Budhun’s direct
supervisor was Sherri Alvarez; Alvarez reported to the
director of the credentialing department, Dawn Dreibelbis.
In accordance with applicable law, Reading provides
its employees with up to twelve weeks of job-protected
FMLA leave during any rolling twelve-month period.
Reading requires employees to submit a leave certification
from a healthcare professional prior to approving any FMLA
2
leave. App. 155. It also requires employees to submit a
“fitness-for-duty” certification in the form of a return to work
form that confirms that the employee can work “without
restriction” before returning. App. 159. If an employee does
not contact Reading’s human resources department at the end
of his or her leave, Reading’s policy states that it will
consider the employee to have voluntarily resigned. Id.
Reading also has a transfer policy which prohibits
employees who have been disciplined by a final written
warning in the last year from transferring to another position
within Reading. App. 151. As is pertinent to this appeal,
Budhun received a final written warning on January 25, 2010
for tardiness.
Prior to taking the FMLA leave that is the subject of
this suit, Budhun took approximately four weeks of FMLA
leave in two separate segments between March 31, 2010 and
May 7, 2010. During this period of time, Ann Rushow, an
employee from a different department, filled in for Budhun
part of the time. Rushow remained in this part-time role upon
Budhun’s return.
Budhun broke her fifth metacarpal, the bone in her
hand connecting her wrist to her pinky finger, on July 30,
2010 in an incident unrelated to her job. She arrived at work
on Monday, August 2, 2010 with a metal splint on her right
hand. At 10:33 a.m. that day, she received an email from
Stacey Spinka, a Reading human resources employee, stating
“Your supervisor has made us aware that you have an injury
that prevents you from working full duty,” and providing
Budhun with FMLA leave forms. App. 244. Budhun
apparently then left work and saw a physician assistant at
OAA Orthopedic Specialists that same day. App. 253.
Budhun returned to OAA and saw Dr. Richard Battista
on August 3 and August 10, 2010. Dr. Battista taped the
pinky, ring, and middle fingers on her right hand together to
stabilize her pinky finger. According to Budhun, she asked
Dr. Battista to fill out the FMLA leave certification form.
She told Dr. Battista that her job required typing, and that she
felt she could type with the five fingers on her left hand, and
her thumb and index finger on her right hand. App. 315.
3
On August 12, 2010, Budhun emailed Spinka some of
the FMLA paperwork that she had been provided. App. 429.
Although the record is not entirely clear, it appears that
Budhun attached to her email a portion of the hospital’s leave
of absence form and a note from her doctor. The note was
dated August 10, 2010 and provided that she could return to
work on Monday, August 16, 2010, stating, “No restrictions
in splint.” In her email, Budhun clearly stated that she was
going to return on Monday.
Budhun returned to her place of work at BHP as
promised on August 16, 2010. At 11:06 a.m., Budhun
emailed Spinka again, attaching the other portion of the
hospital’s leave of absence form. App. 431. This form stated
an expected return to work date of August 16, 2010. App.
263. Budhun stated that she provided the FMLA leave
certification to Dr. Battista on August 3, and that he said it
would take ten to fifteen days to complete. Also attached to
this email was a form giving Reading authorization to contact
Budhun’s medical providers should it need to clarify any of
the information that Budhun provided. App. 265.
In this email, Budhun stated that she still had a splint
on her right hand, but that she could “type slowly and write a
little bit, but not as fast as I used to. . . . I could work but not
fast.” App. 431. Spinka replied at 11:25 a.m., informing
Budhun that because her return to work note “states ‘no
restrictions’, therefore you should be at full duty (full speed)
in your tasks. If you are unable to do so, you should contact
your physician and ask him to write you and [sic.] excuse to
stay out of work until you may do so.” Id. Budhun
responded six minutes later, stating that she could “use my
index and thumb finger of that [right] hand so I can’t go at
full speed, but I could work.” App. 430. Spinka again
replied and informed Budhun that she needed to perform at
the “same capacity” as she did prior to going on leave and
that she should have full use of all her digits in order to be
considered full duty. Id. “It seems that your physician was
incorrect in stating that you could work unrestricted. If you
were truly unrestricted in your abilities, you would have full
use of all your digits.” Id. The record does not indicate
4
whether this was the last conversation between Budhun and
Spinka or anybody else at the hospital that morning.
What is clear is that Budhun, under the impression that
Reading would not permit her to work with three fingers in
her right hand incapacitated, then left her place of work and
went back to Dr. Battista’s office. At 1:34 p.m. on that same
day, August 16, Dr. Battista’s office faxed Budhun’s
completed FMLA leave certification form to Reading. App.
271. In it, Dr. Battista checked “yes” next to the question
asking whether Budhun was unable to perform “any of his/her
job functions.” App. 272. In the field below this question,
which asked which job functions Budhun could not perform,
Dr. Battista simply wrote “out of work until 08/16/10.” Id.
On the next page, Dr. Battista estimated the period of
incapacity as “08/02/10-08/16/10.” App. 273. Dr. Battista
signed and dated the FMLA leave certification form on that
same day, August 16, 2010.
The final page in Dr. Battista’s fax was, however,
somewhat inconsistent with all of the information he had
previously given. The last page consisted of a one line note,
stating, “[p]lease excuse patient from work until reevaluation
on 9/8/2010.” App. 275. This note was signed and dated
August 16, 2010 as well. The next day, Reading approved
FMLA leave for Budhun from August 2, 2010 through
September 8, 2010. App. 276.
Budhun remained out of work on FMLA leave. Dr.
Battista evaluated her again on September 8, 2010, prescribed
occupational therapy for her hand, and scheduled a follow-up
appointment for November 9, 2010. Budhun emailed Spinka
and Alvarez that day, informing them that the doctor would
release her to work as soon as she could move her fingers
without problems. App. 340. Spinka responded that because
Budhun’s approved FMLA leave expired on September 8,
Reading would need a note from Budhun’s doctor. Budhun
faxed Spinka a note dated September 10, 2010, in which Dr.
Battista stated that Budhun would be out of work until her
next doctor’s appointment in November. App. 280. Spinka
then extended Budhun’s FMLA leave until September 23,
2010 (the date at which her twelve weeks of allotted FMLA
5
leave was exhausted), and approved non-FMLA leave
through November 9, 2010. App. 287-88.
Budhun emailed Spinka again on September 13,
informing her that the “doctor” had informed her that he
would release her to work prior to November if she felt better.
App. 283. In this email, she stated that she thought she would
be able to work by the end of the month. Id. Budhun
attended several more occupational therapy sessions
throughout the remainder of September.
On September 15, 2010, Alvarez, Dreibelbis, Spinka,
Chuck Wills, the President and CEO of BHP, and Gretchen
Shollenberger, the director of human resources, had a
meeting. According to Alvarez, the purpose of the meeting
was to discuss what BHP would do if Budhun did not return
from leave by September 23, 2010. The meeting participants
agreed that if Budhun did not return to work by that date, they
would offer Budhun’s job to Rushow. App. 394, 405. When
Budhun did not return by the end of her FMLA leave, BHP
offered the position to Rushow on September 25, 2010.
Rushow accepted.
After replacing Budhun, Dreibelbis and Alvarez
attempted to contact her on September 27 and 28 but were
unable to reach her. On September 29, Budhun emailed them
and informed them that she would be able to secure a return
to work note the following day, and be able to return to work
on October 4, 2010. App. 329. Alvarez and Spinka called
Budhun on that day and informed her that they had replaced
her with Rushow. App. 320. Budhun was not eligible to
transfer to another position within the hospital because of her
prior written discipline. She was told that if her doctor
released her to work before she found another position at the
hospital (even though she would have to apply as though she
were an outsider), she would be terminated. App. 321.
Alvarez emailed her on October 6, 2010, asking her to come
pick up her belongings and turn in her identification badge
and keys. App. 328.
Budhun remained on leave, continuing to be eligible
for fringe benefits, through November 9, 2010. At the
expiration of her leave, she did not contact Reading. Reading
6
considered her to have voluntarily resigned at the end of her
leave, consistent with its internal leave policy. App. 159.
Budhun brought suit on November 19, 2010, alleging
FMLA interference and retaliation claims. After discovery
closed, Reading moved for summary judgment on both of
Budhun’s claims, and the District Court granted the motion.
It held that Reading was entitled to summary judgment on
Budhun’s interference claim because “[s]he was never
medically cleared to return to work and . . . a doctor’s note
was never provided to defendant.” App. 16. It also
concluded that Budhun was never entitled to the protections
of the FMLA because she claimed that she was fully capable
of working at the time that she attempted to return to work on
August 16, 2010. Id. The District Court granted summary
judgment on Budhun’s retaliation claim because it determined
that Budhun could not establish a prima facie case as a matter
of law. It held that Budhun suffered no adverse employment
action because Budhun was medically unable to return to
work at the conclusion of her FMLA leave. It also concluded
that Budhun could not establish any temporal nexus between
her termination and her FMLA leave because “Budhun was
terminated on November 10, 2010 almost two months after
she took FMLA.” App. 18. Budhun timely appealed.
II.
The District Court had federal question jurisdiction
pursuant to 28 U.S.C. § 1331. We have jurisdiction over the
final decision of the District Court pursuant to 28 U.S.C. §
1291. We exercise plenary review of an order granting
summary judgment and apply the same standard that the
District Court applied. Jakimas v. Hoffmann–La Roche, Inc.,
485 F.3d 770, 777 (3d Cir. 2007). Summary judgment is
appropriate only if there “is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We view the facts in
the light most favorable to the non-moving party. Moore v.
City of Phila., 461 F.3d 331, 340 (3d Cir. 2006). The initial
burden is on the party seeking summary judgment to identify
evidence that demonstrates an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the moving party meets this burden, then it falls to
7
the non-moving party to present evidence on which a jury
could reasonably find for it. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986).
III.
The FMLA was enacted, in part, to “balance the
demands of the workplace with the needs of families,” and
“to entitle employees to take reasonable leave for medical
reasons.” 29 U.S.C. § 2601(b)(1), (2). It requires certain
employers to provide their employees with up to twelve
weeks of leave in the event that the employee has a serious
medical condition. Id. § 2612(a)(1)(D). An employer faces
liability under the Act and its implementing regulations if it
interferes with a right that the Act guarantees, or if it
retaliates against an employee for invoking the Act’s
protections. Id. § 2615(a)(1); 29 C.F.R. § 825.220(c).1 There
is no dispute that Reading is an employer that was required to
make FMLA leave available, that Budhun was eligible for
FMLA leave, or that her hand injury qualified as a serious
medical condition. Budhun argues that the District Court’s
grant of summary judgment to Reading on her FMLA
interference and retaliation claims was in error. We agree.
A.
Budhun contends that she adduced enough evidence to
create a genuine dispute of material fact regarding whether
Reading interfered with her right to be restored to her position
on August 16, 2010, the day Spinka told her that she needed
full use of all ten fingers before she could be reinstated
despite the fact that there was no essential function of her job
1
All citations to the Code of Federal Regulations are to the
FMLA regulations that were in effect in 2010, when the facts
relevant to this case occurred. See Chase Bank USA, N.A. v.
McCoy, 131 S. Ct. 871, 878 (2011) (“Our analysis begins
with the text of [the regulation] in effect at the time this
dispute arose.”). The Department of Labor amended some of
the FMLA regulations in 2013. See Final Rule, 78 Fed. Reg.
8834-01 (Feb. 6, 2013).
8
that she could not perform. She claims that this action
interfered with her right to be restored to her position.
The FMLA provides that it “shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right” that it guarantees. 29
U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b) (noting
that violations of the regulations are actionable as well). In
order to assert an FMLA interference claim, an employee
“only needs to show that [1] he was entitled to benefits under
the FMLA and [2] that he was denied them.” Callison v. City
of Phila., 430 F.3d 117, 119 (3d Cir. 2005).2 One of the
rights that it guarantees is “to be restored by the employer to
the position of employment held by the employee [or an
equivalent position] when the leave commenced” upon return
from FMLA leave. 29 U.S.C. § 2614(a)(1). “An employee
may not be required to take more FMLA leave than necessary
to resolve the circumstance that precipitated the need for
leave.” 29 C.F.R. § 825.311(c).
1.
Reading argues that Budhun did not really attempt to
return to work on August 16, 2010 because shortly after
2
We have more recently phrased this test in a manner similar
to the way other courts of appeals have. In Ross v. Gilhuly,
755 F.3d 185, 191-92 (3d Cir. 2014), we held that in order to
“make a claim of interference under the FMLA, a plaintiff
must establish: (1) he or she was an eligible employee under
the FMLA; (2) the defendant was an employer subject to the
FMLA’s requirements; (3) the plaintiff was entitled to FMLA
leave; (4) the plaintiff gave notice to the defendant of his or
her intention to take FMLA leave; and (5) the plaintiff was
denied benefits to which he or she was entitled under the
FMLA.” See also Goelzer v. Sheboygan Cnty., Wis., 604
F.3d 987, 993 (7th Cir. 2010) (delineating the elements in a
similar way). We note that the first four elements of this
longer test largely collapse into the first element of the
Callison formulation because in order to be entitled to
benefits, an employee must be eligible for FMLA protections
and leave, work for a covered employer, and provide
sufficient notice.
9
arriving at BHP, she left and sought a note from Dr. Battista
requesting leave until September 8, 2010. The record,
however, indicates that there is a genuine dispute of material
fact regarding whether Budhun attempted to invoke her right
to return to work on that date. Budhun informed Spinka on
August 12, 2010 that she intended to return to work on
Monday, August 16. In the email where she conveyed this to
Spinka, she attached a note from her treating physician, Dr.
Battista, stating that she could return on that date and had “no
restrictions.” At the time she entered her place of work on
August 16, all of the information that she had from her
treating physician, and all of the information that she had
provided to Reading, indicated that she intended to return to
work as of that day, and could do so with “no restrictions.”
Although we have never had occasion to address
specifically what constitutes invocation of one’s right to
return to work, Budhun has adduced enough evidence such
that a reasonable jury could find that she did so here. Her
“fitness-for-duty” certification clearly stated that she could
return to work with “no restrictions.” Prior to permitting an
employee to return to work, an employer may request that an
employee provide such a certification, see id. § 825.312, as
Reading required of Budhun here. In it, an employee’s
healthcare provider must merely certify that the employee is
able to resume work. Id. § 825.312(b); see also Brumbalough
v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1003-04 (6th Cir.
2005) (interpreting a similar version of the regulation to
require only a statement that the employee can return to work,
nothing more). An employer may require that this
certification address the employee’s ability to perform the
essential functions of her job, but only if the employer
provides a list of essential functions to the employee at the
time that the employer notices the employee that she is
eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is
undisputed that Reading did not provide Budhun a list of
essential functions for her to present to Dr. Battista. Because
Reading did not provide Budhun with such a list, Dr.
Battista’s fitness-for-duty certification was based only on the
description of the job that Budhun would have supplied him.3
3
We do not reach the issue of whether an employer may ever
decline to allow an employee, whose physician has been
10
Budhun stated that Dr. Battista specifically asked her if she
felt able to type, and she responded that she thought she
could.
Dr. Battista’s communications were, admittedly,
somewhat inconsistent. While he stated in Budhun’s fitness-
for-duty certification and her FMLA leave certification that
she could return to work on August 16, 2010, he sent a
separate note on August 16 stating that she should be excused
from work until September 8. He did so, however, only after
Spinka told Budhun that she could not return, questioned Dr.
Battista’s assessment that she could, and told her that she
could not return to work until she had full use of all ten
fingers.
The regulations contemplate just this kind of situation.
They state that if the employer requires clarification of the
fitness-for-duty certification, the employer can contact the
employee’s health care provider (as long as the employee
gives the employer permission to do so, which Budhun did
here). Id. § 825.312(b). However, the “employer may not
delay the employee’s return to work while contact with the
health care provider is being made.” Id. Instead of following
the regulations, Spinka (who is not a doctor) seemingly
overruled Dr. Battista’s conclusion (albeit reached without an
employer-provided list of essential job functions) by telling
Budhun that if she was “truly unrestricted,” she “would have
full use of all of [her] digits.” App. 267. The record is
sufficient to allow a reasonable jury to conclude that Budhun
attempted to invoke her right to return to work, and that
Reading interfered with it when it told Budhun that she could
not.
Our decision is in accord with the other courts of
appeals that have considered the question of when an
employer’s duty to reinstate is triggered. In Brumbalough,
the plaintiff obtained a note from her doctor stating that she
could return to work, but could work up to only forty-five
hours per week, and could not travel out of town more than
provided a list of essential functions and whose physician
provided a fitness-for-duty certification, from returning to
work.
11
once per week. 427 F.3d at 999. After her employer
terminated her, she brought suit for interfering with her
FMLA right to reinstatement. The Court of Appeals for the
Sixth Circuit held that “once an employee submits a statement
from her health care provider which indicates that she may
return to work, the employer’s duty to reinstate her has been
triggered under the FMLA.” Id. at 1004.
The Court of Appeals for the Seventh Circuit came to
the same conclusion in James v. Hyatt Regency Chi., 707
F.3d 775 (7th Cir. 2013). There, the plaintiff presented his
employer with several fitness-for-duty certifications from his
doctor, although all of them contained job-related restrictions.
The court held that the employer’s duty to reinstate the
plaintiff would have been triggered had the fitness-for-duty
certifications provided that he could have returned to duty
without restrictions. Id. at 780-81. Because none of the
doctor’s notes stated that he could work without restrictions,
no duty was triggered as a matter of law. The difference
between James and the instant case is apparent: Budhun’s
August 10, 2010 note from Dr. Battista stated that she could
return with “no restrictions.”
2.
Even if Budhun actually attempted to return to work
on August 16, 2010, Reading argues that it is still entitled to
summary judgment because it would have sent her home
because she could not perform an essential function of her
job. The failure to restore an employee to her position at the
conclusion of her leave does not violate the FMLA if the
employee remains unable to perform an “essential function”
of the position. 29 C.F.R. § 825.216(c). The FMLA
regulations incorporate guidelines set out in the ADA
regulations that bear on whether a given function is
“essential.” Id. § 825.123(a). The pertinent ADA regulations
define “essential functions” to be the “fundamental job
duties” of the position, and set out a non-exhaustive list of
evidence that a fact-finder may consider:
(i) The employer’s judgment as to which
functions are essential;
12
(ii) Written job descriptions prepared before
advertising or interviewing applicants for the
job;
(iii) The amount of time spent on the job
performing the function;
(iv) The consequences of not requiring the
incumbent to perform the function;
(v) The terms of a collective bargaining
agreement;
(vi) The work experience of past incumbents in
the job; and/or
(vii) The current work experience of
incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(1), (3). Importantly, whether a
particular function is essential “is a factual determination that
must be made on a case by case basis based upon all relevant
evidence.” Turner v. Hershey Chocolate U.S., 440 F.3d 604,
612 (3d Cir. 2006) (alteration and quotation marks omitted)
(in the ADA context); see also Brumbalough, 427 F.3d at
1005 (same, in FMLA context); Sanders v. City of Newport,
657 F.3d 772, 782 (9th Cir. 2011) (same).
The FMLA regulations place the onus on an
employee’s health care provider — not her employer — to
certify whether the employee is unable to perform any
essential function of her job.4 See 29 C.F.R. § 825.123(a)
(“An employee is ‘unable to perform the functions of the
position’ where the health care provider finds that the
employee is unable to work at all or is unable to perform any
one of the essential functions of the employee’s position
[within the meaning of the ADA regulations].” (emphasis
added)). Reading was free to provide Budhun with a list of
the specific functions that were essential to her job so that Dr.
4
This certification triggers the employer’s duty to reinstate
only if it provides that the employee can return without
restriction. Indeed, we have noted that “[t]he FMLA does not
require an employer to provide a reasonable accommodation
to an employee to facilitate his return to the same or
equivalent position at the conclusion of his medical leave.”
Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir.
2012) (quotation marks omitted).
13
Battista could determine if Budhun could perform them, but it
did not. Instead, Spinka unilaterally determined, over email,
that Budhun could not perform an essential function because
she had use of only seven fingers.
Budhun admitted that it was not likely that she could
type as quickly with seven fingers as she formerly could with
ten. But this alone does not mean that she could not perform
this essential function. Budhun adduced evidence that there
was no minimum words per minute requirement in her written
job description. App. 311. Both the other employee who had
Budhun’s equivalent position, and her supervisor Alvarez,
employed a “hunt and peck” method to type, utilizing only
one finger on each hand. App. 310. With the use of ten
fingers, Budhun was able to complete files in about seven
days, far in advance of BHP’s internal deadlines of sixty to
ninety days. Combined with Dr. Battista’s note, Budhun has
adduced enough evidence to allow a reasonable jury to
conclude that she could, in fact, perform this essential
function.
3.
Reading also argues that it could not have interfered
with Budhun’s right to restoration on August 16, 2010,
because she was not yet on FMLA leave at that time.
Although she notified Reading on August 2 that she was
seeking FMLA leave and completed all of her FMLA
paperwork on August 16, it was not until August 17 that
Reading approved it. Reading contends that Budhun was not
eligible for FMLA benefits, including restoration, until it
approved her leave.
We rejected a similar contention in the retaliation
context in Erdman v. Nationwide Insurance Co., 582 F.3d 500
(3d Cir. 2009). There, the plaintiff informed her employer in
April that she intended to take FMLA leave in the coming
July and August. Id. at 503. Her employer terminated her in
May and she brought suit for FMLA retaliation, alleging that
her employer had terminated her for requesting FMLA leave.
Nationwide argued that she could not state a retaliation claim
because she was fired before her leave commenced, and that
we had previously held that a required element of a prima
14
facie FMLA retaliation case was that an employee “took an
FMLA leave.” Id. at 508-09 (quoting Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)).
We held that Nationwide’s interpretation of our
retaliation test was untenable. So holding would “perversely
allow a[n] employer to limit an FMLA plaintiff’s theories of
recovery by preemptively firing her.” Id. at 509.
“Accordingly, we interpret[ed] the requirement that an
employee ‘take’ FMLA leave to connote invocation of FMLA
rights, not actual commencement of leave.” Id.
The same reasoning applies here. A reading of the
statute that denies all rights that the FMLA guarantees until
the time that an employer designates the employee’s leave as
FMLA would be illogical and unfair. It would disempower
employees taking any sort of short term unforeseen leave
because it would allow employers to deny FMLA rights until
the employer decided that the FMLA governed the
employee’s leave. As we held in Erdman, and consistent with
Brumbalough and James, it is the time that an employee
invokes rights under the FMLA that matters, not when his or
her employer determines whether the employee’s leave is
covered by the FMLA.
Reading’s argument also runs counter to the FMLA’s
regulatory scheme. The regulations provide that “‘interfering
with’ the exercise of an employee’s rights would include, for
example, not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave.” 29 C.F.R.
§ 825.220(b). They also prohibit “manipulation by a covered
employer to avoid responsibilities under [the] FMLA.” Id.
This regulation makes clear that an employee’s leave need not
have been approved by his or her employer in order for an
employee to invoke rights under the act because an employee
can state an interference claim even if his or her leave is
never approved.5
5
This interpretation is buttressed by the title of 29 C.F.R. §
825.220, “Protection for employees who request leave or
otherwise assert FMLA rights.” The plain language of the
title indicates that its protections apply to employees who
“request” leave, not just those whose leave has been
15
It appears undisputed that the date on which Budhun
invoked the protections of the Act was August 2, 2010.
Spinka acknowledged as much that day, when she emailed
Budhun FMLA leave forms and asked her to complete them.
Reading does not argue that Budhun was ineligible for FMLA
leave on August 2 – in fact, on August 17, Reading approved
Budhun’s FMLA leave retroactive to August 2 and extending
to September 8. Having invoked the FMLA, Budhun was
eligible to avail herself of the right to return to her position at
the end of her leave.
4.
The District Court’s grant of summary judgment to
Reading on Budhun’s FMLA interference claim was in error.
Genuine issues of material fact exist regarding whether
Budhun was exercising her right to return to work on August
16, 2010, and whether she could not perform an essential
function of her job.
B.
Budhun next contends that the District Court’s grant of
summary judgment to Reading on her FMLA retaliation
claim was in error. She argues that Reading retaliated against
her for taking FMLA leave when it impermissibly replaced
her after her FMLA-protected leave expired. FMLA
retaliation claims are rooted in the FMLA regulations.
Erdman, 582 F.3d at 508. They prohibit an employer from
“discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to
exercise FMLA rights.” 29 C.F.R. § 825.220(c). FMLA
retaliation claims based on circumstantial evidence are
governed by the burden-shifting framework established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294,
302 (3d Cir. 2012).
approved. Although a title alone is “not controlling,” it can
be instructive “when it sheds light on some ambiguous word
or phrase.” I.N.S. v. St. Cyr, 533 U.S. 289, 308-09 (2001)
(alterations and quotation marks omitted).
16
Budhun’s claim is based on circumstantial evidence.
Thus, to succeed on her claim, it is her burden to establish
that “(1) she invoked her right to FMLA-qualifying leave, (2)
she suffered an adverse employment decision, and (3) the
adverse action was causally related to her invocation of
rights.” Lichtenstein, 691 F.3d at 302; see also Ross, -- F.3d -
-, 2014 WL 2724128, at *6. Once she establishes a prima
facie case, the burden shifts to the defendant to provide
evidence of a legitimate non-discriminatory reason for the
adverse action. McDonnell Douglas, 411 U.S. at 802. If the
employer meets this “minimal burden,” the employee must
then point to some evidence that the defendant’s reasons for
the adverse action are pretextual. Lichtenstein, 691 F.3d at
302.
The District Court granted summary judgment on
Budhun’s retaliation claim because it held that Budhun could
not establish the second and third elements of her prima facie
case. It stated that because she was unable to return to work
at the conclusion of her FMLA leave, “her separation from
employment was not an adverse employment action.” App.
17. It also held that she could not establish any temporal
nexus between her termination and her FMLA leave because
“Budhun was terminated on November 10, 2010, almost two
months after she took FMLA.” App. 18. Because it held that
Budhun could not establish a prima facie case as a matter of
law, it did not reach Reading’s alleged legitimate, non-
discriminatory reason for replacing Budhun or Budhun’s
pretext arguments.
1.
The parties contest only the second and third elements
of Budhun’s prima facie case (it is undisputed that Budhun
invoked her right to FMLA-qualifying leave). An “adverse
employment action” is an action that “alters the employee’s
compensation, terms, conditions, or privileges of
employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an
17
employee.” Robinson v. City of Pittsburgh, 120 F.3d 1286,
1300 (3d Cir. 1997) (quotation marks omitted).6
Reading argues that Budhun suffered no adverse
employment action because she resigned voluntarily on
November 10, 2010 when she failed to return to work. It
contends that Reading continued to provide benefits to
Budhun through November 9, 2010, the date her non-FMLA
leave expired, in accordance with its internal policy. In her
deposition, Budhun admitted that she was never told that she
was “terminated” at the time she was told that she was
replaced by Rushow. App. 112. Budhun never submitted a
“fitness-for-duty” certification prior to her leave expiring on
November 9, and admits that rather than applying for
continued leave, she just “gave up.” App. 110.
But viewing the facts in the light most favorable to
Budhun, a reasonable jury could conclude that Budhun
suffered an adverse employment action when Reading
installed Rushow permanently in her position. Budhun was
no longer free to return to her previous job. Alvarez
expressly told her to turn in her badge and keys, and to pick
up her personal belongings, which a Reading employee had
packed into a box. She was not offered another position at
the hospital (indeed, she was ineligible to transfer to another
position). This certainly altered her “privileges of
employment,” as she could no longer even enter her place of
work. She was expressly told that if her doctor cleared her to
return to work that she would be formally terminated. There
6
This Court has not decided whether to apply the less
restrictive standard for “adverse employment action”
promulgated in the Title VII context by Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Under
this more relaxed standard, “a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse,” such that the action well might have
dissuaded a reasonable worker from taking a protected action.
Id. at 68. We need not resolve this question today because, as
the subsequent discussion illustrates, termination, or being
permanently replaced, meets the more restrictive definition.
18
was no position for her to return to at the hospital. Such a
complete elimination of responsibility “significantly altered
[her] duties and status.” Caver v. City of Trenton, 420 F.3d
243, 256 (3d Cir. 2005).
That Budhun may not have been formally “terminated”
and continued to receive benefits from Reading does not
mean that the actions that Reading took short of termination
were not “adverse employment actions.” We have never
required formal termination to be a necessary element of such
an action. Even under the Robinson formulation of adverse
employment action, much less has often sufficed. See, e.g.,
Caver, 420 F.3d at 256 (holding that transfer to light duty
with less prestige is considered an adverse employment
action); Weston v. Pennsylvania, 251 F.3d 420, 430-31 (3d
Cir. 2001) (holding that adverse employment actions can
include suspension without pay, change of work schedule, or
reassignment). Budhun has adduced enough evidence such
that a reasonable jury could conclude that she suffered an
adverse employment action when she was replaced.
2.
Reading also argues that Budhun has not established a
causal link between her FMLA leave and any adverse
employment action. Whether a causal link exists “must be
considered with a careful eye to the specific facts and
circumstances encountered.” Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000). We have been
reluctant to infer a causal connection based on temporal
proximity alone. See Weston, 251 F.3d at 431. To
demonstrate a causal connection, a plaintiff generally must
show “either (1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory
action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.” Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Employers
“cannot use the taking of FMLA leave as a negative factor in
employment actions.” 29 C.F.R. § 825.220(c).
Reading’s argument with respect to this third prong of
Budhun’s prima facie case heavily tracks its argument with
respect to prong two. It contends that because its separation
19
with Budhun did not occur until November, there was nothing
unusually suggestive about its timing. But viewing the facts
in the light most favorable to Budhun forecloses this
argument, because Reading’s decision to replace her in
September was an adverse employment action. The record
demonstrates that Reading decided to replace Budhun before
her FMLA leave ended, as early as September 15, 2010.
Rushow was then offered and accepted the position on
September 25, two days after Budhun’s FMLA leave ended.
Alvarez and Spinka attempted to contact Budhun regarding
her replacement starting on September 27, and finally reached
her on September 29. We have held that such close temporal
proximity qualifies as unusually suggestive timing. See, e.g.,
Lichtenstein, 691 F.3d at 307 (determining that termination
less than a week after the plaintiff invoked her right to FMLA
leave established causation); see also Wierman v. Casey’s
Gen. Stores, 638 F.3d 984, 1000 (8th Cir. 2011) (holding that
termination several days after the plaintiff took FMLA-
covered leave was sufficient to establish causation); Bryson v.
Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (holding that
an employee who was notified of her termination three
months after requesting FMLA leave and the day she was
scheduled to return to work was sufficient to establish a
causal connection).
3.
The District Court thus erred in concluding that
Budhun could not establish a prima facie case of FMLA
retaliation as a matter of law. Because the District Court did
not reach the subsequent steps in the McDonnell Douglas
analysis, we will not either. The District Court can address
Reading’s proffered legitimate, non-discriminatory reason
and Budhun’s evidence of pretext upon remand.
IV.
Budhun also appeals the District Court’s denial of her
motion for leave to amend her complaint. Budhun moved to
add a claim under the ADA on May 17, 2011. Her proposed
amended complaint alleged that Reading regarded her as
being disabled. The District Court denied Budhun’s motion
as futile.
20
We review the denial of leave to amend for abuse of
discretion. Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.
2004). In the context relevant here, a party may amend its
pleadings “only with the opposing party’s written consent or
the court’s leave.” Fed. R. Civ. P. 15(a)(2). Although a court
should grant such leave freely “when justice so requires,” id.,
a court may deny leave to amend when such amendment
would be futile. Arthur v. Maersk, Inc., 434 F.3d 196, 204
(3d Cir. 2006). Amendment would be futile if the amended
complaint would not survive a motion to dismiss for failure to
state a claim. Travelers Indem. Co. v. Dammann & Co., 594
F.3d 238, 243 (3d Cir. 2010). A complaint fails to state a
claim upon which relief can be granted where the plaintiff is
unable to plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
We have little trouble concluding that the District
Court did not abuse its discretion in denying leave to amend.
The ADA’s definition of “disability” includes “being
regarded as having such an impairment.” 42 U.S.C. §
12102(1)(C).7 An individual meets this “regarded as”
requirement if he or she establishes that he or she has been
subject to an action the ADA prohibits “because of an actual
or perceived physical or mental impairment whether or not
the impairment limits or is perceived to limit a major life
activity.” Id. § 12102(3)(A).
The statute curtails an individual’s ability to state a
“regarded as” claim if the impairment is “transitory and
minor,” which means it has an “actual or expected duration of
six months or less.” Id. § 12102(3)(B). Whether an
impairment is “transitory and minor” is to be determined
objectively. 29 C.F.R. § 1630.15(f). That is to say, the
relevant inquiry is whether the impairment that the employer
perceived is an impairment that is objectively transitory and
7
Budhun originally moved to amend her complaint to assert
both an actual disability claim and a “regarded as” disabled
claim. On appeal, she contends that the District Court erred
only in failing to permit her to add a “regarded as” claim. See
Budhun Br. 24.
21
minor.8 The ADA regulations list being “transitory and
minor” as a defense to an ADA claim. Id. While ordinarily a
party may not raise affirmative defenses at the motion to
dismiss stage, it may do so if the defense is apparent on the
face of the complaint. Ball v. Famiglio, 726 F.3d 448, 459
n.16 (3d Cir. 2013).
It is abundantly clear that Reading considered Budhun
to have a broken bone in her hand and nothing more. The
proposed amended complaint indicates that Alvarez knew that
she had a broken finger. App. 37. Nowhere in the complaint
does Budhun allege that Reading thought her injury was
anything other than a broken fifth metacarpal. This injury is
objectively transitory and minor. Budhun’s proposed
amended complaint concedes as much because it describes
the loss of the use of her pinky finger as “temporary.” Id.
She specifically alleges that her injury resulted in the “lost
use of three fingers for approximately two months.” App. 40.
As it was evident from the face of her proposed amended
complaint that Reading regarded her injury as one that is
objectively transitory and minor, the District Court was well
within its discretion to deny her motion for leave to amend as
futile.
V.
For the foregoing reasons, we will vacate the judgment
of the District Court as to Budhun’s FMLA interference and
FMLA retaliation claims. We will affirm the District Court’s
order denying Budhun leave to amend her complaint to add
an ADA claim. We will remand the action for further
proceedings consistent with this opinion.
8
The appendix to the implementing regulations provides a
good illustration of how this defense is intended to operate:
“For example, an employer who terminates an employee
whom it believes has bipolar disorder cannot take advantage
of this exception by asserting that it believed the employee’s
impairment was transitory and minor, since bipolar disorder is
not objectively transitory and minor.” 29 C.F.R. § 1630,
App.
22