Lichtenstein v. University of Pittsburgh Medical Center

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 11-3419
______
JAMIE LICHTENSTEIN,
Appellant
v.
UNIVERSITY OF PITTSBURGH MEDICAL CENTER,
trading and doing business as UPMC; DEBORAH LIDEY;
UPMC PRESBYTERIAN SHADYSIDE, doing business as
Western Psychiatric Institute and Clinic; UPMC
BRADDOCK
______
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 09-cv-1350)
District Judge: Honorable William L. Standish
______
Argued on June 19, 2012
Before: AMBRO, VANASKIE and VAN ANTWERPEN,
Circuit Judges
(Filed: August 3, 2012 )
Charles H. Saul, Esq. [ARGUED]
Kyle T. McGee, Esq.
Margolis Edelstein
525 William Penn Place, Suite 3300
Pittsburgh, PA 15219
Counsel for Appellant
John J. Myers, Esq. [ARGUED]
Andrew T. Quesnelle, Esq.
Eckert, Seamans, Cherin & Mellott LLC
44th Floor, U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219
Counsel for Appellees
______
OPINION OF THE COURT
______
VAN ANTWERPEN, Circuit Judge.
I.
Appellant Jamie Lichtenstein alleges that her
employer, University of Pittsburgh Medical Center (UPMC),1
terminated her employment in violation of the Family
1
Our reference to UPMC throughout this opinion, unless
otherwise indicated, is a collective reference to all four
defendants in this case, including UPMC Presbyterian
Shadyside, UPMC Braddock, and Deborah Lidey.
2
Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et
seq. The District Court granted summary judgment to UPMC
on Lichtenstein‘s retaliation and interference claims.
Lichtenstein‘s challenge to the District Court‘s decision
requires us to consider (a) the specificity of information
employees must provide to adequately notify employers of
unforeseeable FMLA leave, and (b) the nature of a pretext
analysis when a legitimate justification for terminating an
employee pre-existed that employee‘s exercise of FMLA
rights. Based on the evidence in this case, genuine factual
disputes exist about whether Lichtenstein‘s notice was
adequate, whether her invocation of FMLA rights was a
negative factor precipitating her termination, and whether
UPMC‘s proffered justification for its action was mere
pretext for retaliation. Accordingly, we will vacate the
District Court‘s grant of summary judgment on both claims
and remand for further proceedings.
II. FACTS & PROCEDURAL HISTORY
Jamie Lichtenstein began working with UPMC in
October 2005 as a research associate at UPMC‘s Western
Psychiatric Institute and Clinic. In September 2007,
Lichtenstein transferred to UPMC‘s hospital in Braddock,
Pennsylvania (―Braddock‖) where, less than four months
later, she was discharged. During her short tenure at
Braddock, Lichtenstein worked as a psychiatric technician
under the supervision of Deborah Lidey. Because this was a
new position for her, Lichtenstein was subject to a six-month
probationary period in which UPMC‘s progressive discipline
policy did not apply.
3
Although Lichtenstein received a merit-based raise to
her salary in October 2007, her time at Braddock was
tarnished by attendance problems and scheduling difficulties.
From October through the end of December, Lichtenstein was
tardy six times, absent twice, and requested changes to her
schedule on multiple occasions after the deadline for
requesting such changes had passed. The most egregious
incident during this time occurred on December 1st, a day
which Lichtenstein was scheduled to work a sixteen-hour
shift. In the days preceding December 1st, two co-workers
complained that Lichtenstein was planning to call-off if she
could not find a replacement. One of these co-workers told
Lidey that Lichtenstein claimed she needed the day off to do
school work2 and/or attend a concert. Lichtenstein‘s co-
workers were upset because UPMC policy prohibited
premeditated call-offs, and one of them might have to fill in
for her if she did not show up. In response to these
complaints, Lidey emailed Lichtenstein for an explanation.
Lichtenstein told Lidey she was hoping to take December 1st
off because it was the only day she could work on a group
project for school. Although Lidey denied this request,
Lichtenstein (alleging she was sick) called off.
In her deposition, Lidey indicated that Lichtenstein‘s
December 1st call-off was the moment when she first
considered firing her. According to Lidey, ―I had already
made many accommodations in her schedule, and I had in my
mind, if she calls off, then we can‘t further this.‖ App. at
2
In addition to her full-time position at Braddock,
Lichtenstein was also a part-time student. During her job
interview, Lidey told Lichtenstein that UPMC would attempt
to accommodate her school schedule.
4
331. Lidey did not, however, terminate Lichtenstein for the
incident, nor did she issue a written warning. Lichtenstein‘s
employment thus continued and arguably had a bright spot in
the days before Christmas when Lidey sent an email thanking
her for volunteering to fill people‘s shifts on both Christmas
Eve and Christmas Day. Less than three weeks later, on
January 10, 2008, Lidey informed Lichtenstein that her
employment was terminated.
While it is undisputed that UPMC terminated
Lichtenstein for attendance problems and scheduling
difficulties, the parties vigorously dispute the event, or ―final
straw,‖ that triggered the termination. According to UPMC,
the final straw occurred on December 30th, when—according
to UPMC‘s time logs—Lichtenstein arrived at work several
hours late and departed several hours early. Although this
incident was not recorded on Lichtenstein‘s staff log,3 and
although Lidey was unable to recall when she first learned
about it,4 UPMC insists this incident was the trigger for
Lichtenstein‘s termination. UPMC further asserts that the 11-
day delay between this December 30th incident and
Lichtenstein‘s termination can be explained by the following
3
The staff log was maintained by Amy Harris, UPMC‘s
administrative assistant for scheduling. The ―time log,‖ on
the other hand, was maintained through UPMC‘s
computerized system. As discussed below, the staff log is the
document Lidey reviewed prior to terminating Lichtenstein,
and is the document UPMC submitted to the EEOC as
―Exhibit M‖ to document Lichtenstein‘s attendance problems.
4
When asked when she first learned of the December 30th
incident, Lidey stated ―I can‘t remember that.‖ App. at 344.
5
two facts: (1) Lidey went on vacation on December 31st and
did not return until January 7th, and (2) Lidey‘s plan to fire
Lichtenstein on January 8th was thwarted by Lichtenstein‘s
request for leave that morning.
To support its assertion that Lidey made the
termination decision prior to leaving for vacation on
December 31, UPMC relies entirely on Lidey‘s own
testimony. In her deposition, Lidey stated that she made the
decision to terminate Lichtenstein before January 3rd. Id. at
344. Lidey also testified that prior to terminating employees
she always consults with Helene Brown, the head of Human
Resources. When asked when she first spoke with Brown
about terminating Lichtenstein, Lidey stated that it was
―before the New Year‘s.‖ Id. at 345. Elsewhere, however,
Lidey contradicted herself on both of these points. The
following are other answers Lidey gave when asked about the
date she decided to fire Lichtenstein:
Q. ―Had you made the decision to terminate
[Lichtenstein] before you went on leave?‖
A. ―I would have to go back and look at dates.‖ Id. at
331.
Q: ―Was [the termination decision made] before you
went on leave?‖
A: ―I can‘t remember dates.‖ Id. at 345.
Similarly, when asked to clarify when she first spoke with
Helene Brown, Lidey provided the following responses:
Q: ―Did you start your discussions with [Human
Resources] after you came back
6
from leave or before you went on leave?‖
A: ―I don‘t remember that.‖ Id. at 328.
Q: ―Was there a discussion with Human Resources in
December of 2007 before you went on leave to
terminate Jamie Lichtenstein?‖
A: ―I cannot remember the exact date.‖ Id. at 332.
Q: ―Did you talk to HR before . . . January 7, 2008?‖
A: ―I don‘t remember that.‖ Id. at 331.
Helene Brown was also unable to recall when she and Lidey
first discussed Lichtenstein‘s termination. Id. at 423. Brown
could only recall that it was before January 8th and could not
remember whether it was before, or after, Lidey went on
leave. Id.Lichtenstein‘s first scheduled shift after Lidey went on
leave was January 3, 2008 at 3:00 p.m. Lichtenstein did not
make her shift that day, however, because early that morning
her mother was rushed to the hospital in an ambulance after
collapsing from a sudden excruciating pain in her leg. When
Lichtenstein arrived at the emergency room she saw her
mother crying from the pain. She had never seen her mother
crying as she was that morning and Lichtenstein tried her best
to comfort her. Although unnerved, Lichtenstein called
UPMC‘s nursing supervisor prior to noon to say she couldn‘t
make her shift.5 During the phone call, Lichtenstein told the
5
It is undisputed that by calling the nursing supervisor when
she did on January 3rd, Lichtenstein followed UPMC‘s
proper procedure for calling off sick. See App. at 308, 395–
7
supervisor she ―was currently in the emergency room, that my
mother had been brought into the hospital via ambulance, and
I would be unable to work that day.‖ Id. at 211. UPMC was
able to find someone to take Lichtenstein‘s shift and Cynthia
Krautz (Lidey‘s replacement while she was away) emailed
Lidey to inform her that Lichtenstein had called off.
Although Krautz‘s email did not indicate a reason for
Lichtenstein‘s call-off, Amy Harris (UPMC‘s employee in
charge of staff scheduling) marked the absence in
Lichtenstein‘s staff log as ―sick mom.‖ Id. at 585.
Lichtenstein‘s mother‘s condition was serious.
Doctors diagnosed her as suffering from disc hernia,
myopathy, and nerve impingement, and she remained
hospitalized until January 8th. During this hospital stay,
Lichtenstein and her brother, Michael, spent a considerable
amount of time with their mother and ran various errands,
including taking care of her dogs. Lichtenstein‘s mother,
whose recollection of her time at the hospital was ―a little
foggy,‖ id. at 493, testified that ―Jamie was really the 24/7
person that would be there, and Michael would come and
relieve her occasionally so she could run to the store and pick
up things or stuff like that or try to make me eat something,‖
id. at 494. Lichtenstein, however, did find time to work her
shifts at UPMC on both January 4th and 5th. During these
shifts, Lichtenstein made no further mention of her mother‘s
condition.
On January 7th, Lidey returned from vacation. On her
first morning back, Lidey forwarded Harris a copy of
96, 451–52. Nevertheless, the adequacy of the notice she
gave is an issue in this case.
8
Krautz‘s email from January 3rd in which Krautz apprised
Lidey that Lichtenstein had called-off. Above this forwarded
message from Krautz, Lidey wrote: ―Please pull up Jamie‘s
call offs for me.‖ Id. at 584. In response, Harris gave Lidey a
copy of the staff log, which included Harris‘s ―sick mom‖
notation in the entry for Lichtenstein‘s January 3rd absence.6
Lidey claims she did not see this particular notation when she
reviewed the log.
In their depositions, Brown and Lidey testified that
Lidey planned to terminate Lichtenstein on January 8th, the
day after Lidey returned from vacation. This plan was foiled,
however, when Lichtenstein contacted UPMC early that
morning to request leave to care for her mother. At 12:18
pm, Lichtenstein sent Lidey the following email:
I am not sure if you are aware, but my mother has been
in the hospital since Thursday [January 3rd]. I am not
sure how much longer they will keep her hospitalized.
And once she is released, she might require some
assistance. Under these circumstances and at this point
in time, I would like to, as well as need to, take a leave
of absence. Who do I speak with to aid me in this
process?
Id. at 586.
Lidey, who receives hundreds of emails a day, claims
she did not read this particular email. In fact, Lidey insists
6
Lidey also requested and received from Harris a copy of
Lichtenstein‘s staff log on January 9th as well.
9
that she terminated Lichtenstein ―before I knew anything
about her mom being ill or needing to ask for leave.‖ Id. at
335. This claim, however, is at odds with other evidence in
the record, including the fact that Lidey responded to
Lichtenstein‘s email.7 Although Lidey claims she did not
read Lichtenstein‘s email prior to replying to it, Brown
testified that Lidey told her Lichtenstein‘s mother was sick.
Id. at 424. According to Brown, ―What I recall her saying
was that Jamie was stating that she needed to be off to care
for her mother.‖ Id. Brown testified that Lidey conveyed this
information prior to Lichtenstein‘s termination.
After her termination, Lichtenstein filed a complaint
with the EEOC alleging religious discrimination. In
response, UPMC sent a position statement to the EEOC in
which it described its reasons for firing Lichtenstein.
According to this position statement:
Once Ms. Lichtenstein began working at UPMC
Braddock, she had numerous incidents of tardiness and
absenteeism. She was also a ‗nightmare‘ to schedule
according to Amy Harris, the Administrative Assistant
in charge of scheduling. Although the hospital was
willing to accommodate her school schedule, Ms.
Lichtenstein was also constantly requesting days off to
study or complete schoolwork. By January 4, 2008,
Ms. Lichtenstein had been absent three times
7
Lidey‘s reply email was not simply an automated out-of-
office reply. In the email, Lidey stated: ―I am out of the
office today, please call Amy to schedule a time that you can
come in and meet with me tomorrow [January 10th].‖ Id. at
602.
10
(including once for a sixteen hour shift) and tardy six
times. . . . Documentation regarding Ms.
Lichtenstein‘s lateness, absences and scheduling issues
is enclosed as Exhibit M.
Id. at 592. As documented in Exhibit M, one of the ―three
absences‖ referenced in the position statement was
Lichtenstein‘s absence on January 3rd. Lidey‘s late
appearance and early departure on December 30th was not
mentioned, either in Exhibit M or the position statement.
In addition to filing a claim for religious
discrimination, Lichtenstein filed a complaint under the
Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et
seq. Lichtenstein argued that her absence on January 3rd
qualified for leave under the FMLA, and that UPMC had
impermissibly considered this absence in terminating her
employment. The District Court granted UPMC‘s motion for
summary judgment and Lichtenstein filed this timely appeal.
III. LEGAL BACKGROUND8
A. STANDARD OF REVIEW
We review the District Court‘s grant of summary
judgment de novo. Sempier v. Johnson & Higgins, 45 F.3d
724, 727 (3d Cir. 1995). Summary judgment should only be
granted if ―there is no genuine dispute as to any material
fact.‖ Fed. R. Civ. P. 56(a). A dispute is genuine if a
reasonable trier-of-fact could find in favor of the non-movant.
8
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
11
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252
(1986). A dispute is material if it could affect the outcome of
the case. Id. In considering the record, we must draw all
reasonable inferences in favor of the non-moving party,
which in this case, is Lichtenstein. Matsushita Elec. Indus.
Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. FAMILY MEDICAL LEAVE ACT (FMLA)
Congress passed the FMLA in 1993 in an attempt ―to
balance the demands of the workplace with the needs of
families.‖ 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA
―entitle[s] employees to take reasonable leave for medical
reasons,‖ 29 U.S.C. § 2601(b)(2), but employees must do so
―in a manner that accommodates the legitimate interests of
employers,‖ 29 U.S.C. § 2601(b)(3). Eligible employees are
entitled to ―12 workweeks of leave during any twelve-month
period . . . [i]n order to care for the . . . parent of the
employee, if such . . . parent has a serious health condition.‖
29 U.S.C. § 2612(a)(1); see also 29 C.F.R. § 825.101(b)
(―When a family emergency arises, . . . workers need
reassurance that they will not be asked to choose between
continuing their employment, and meeting their . . . family
obligations.‖).
As indicated, eligible employees are entitled to take
FMLA if they ―care for‖ a family member with a ―serious
health condition.‖ A ―serious health condition‖ is defined as
―an illness, injury, impairment, or physical or mental
condition that involves (A) inpatient care in a hospital, . . . or
(B) continuing treatment by a health care provider.‖ 29
U.S.C. § 2611(11); see also 29 C.F.R. § 825.114 (defining
inpatient care as ―an overnight stay in a hospital‖). To ―care
12
for‖ a family member, the employee must provide either
physical or ―psychological care,‖ including ―psychological
comfort and reassurance which would be beneficial to a . . .
parent with a serious health condition who is receiving
inpatient or home care.‖ 29 C.F.R. § 825.124(a).
Even when these qualifying circumstances exist,
employees cannot invoke rights under the FMLA if they fail
to provide adequate notice of their need for leave. 29 U.S.C.
§ 2612(e). When the need for leave is unforeseeable,9
employees are obligated to notify their employer ―as soon as
practicable,‖ 29 C.F.R. § 825.303(a), and ―provide sufficient
information for an employer to reasonably determine whether
the FMLA may apply,‖ 29 C.F.R. § 825.303(b).
When employees invoke rights granted under the
FMLA, employers may not ―interfere with, restrain, or deny
the exercise of or attempt to exercise‖ these rights. 29 U.S.C.
§ 2615(a)(1). Nor may employers ―discharge or in any other
manner discriminate against any individual for opposing any
practice made unlawful.‖ 29 U.S.C. § 2615(a)(2). The
former provision is generally, if imperfectly, referred to as
―interference‖ whereas the latter is often referred to as
―retaliation.‖ Callison v. City of Philadelphia, 430 F.3d 117,
119 (3d Cir. 2005). Although neither provision expressly
forbids employers from terminating employees ―for having
9
See generally Cavin v. Honda of America Mfg., Inc. , 346
F.3d 713, 722 (6th Cir. 2003) (―The regulations suggest that
notice requirements for unforeseeable leave are more relaxed
than the requirements for foreseeable leave, in keeping with
the idea that an unforeseeable need for leave will often arise
in the context of a medical emergency.‖).
13
exercised or attempted to exercise FMLA rights,‖ a
Department of Labor regulation has interpreted the sum of the
two provisions as mandating this result. See 29 CFR §
825.220(c). Under this regulatory interpretation, employers
are barred from considering an employee‘s FMLA leave ―as a
negative factor in employment actions such as hiring,
promotions or disciplinary actions.‖10 Id. Accordingly, an
employee does not need to prove that invoking FMLA rights
10
The regulation does not specify which of the two statutory
provisions is the specific source of this prohibition. See 29
CFR § 825.220(c). Perhaps not surprisingly, therefore, courts
interpreting the regulation have reached different conclusions
on this question. See Conoshenti v. Public Serv. Elec. & Gas
Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004) (citing cases). As
with the Ninth Circuit, we have predicated liability for
retaliation based on an employee‘s exercise of FMLA rights
on the regulation itself. Id. Our discussion on this point,
however, has spurred its own share of confusion, with some
courts citing Conoshenti as specifically locating these claims
in 29 U.S.C. § 2615(a)(1). See, e.g., Phillips v. Mathews, 547
F.3d 905, 914 (8th Cir. 2008) (Colloton, J., concurring).
Adding a further wrinkle, the Department of Labor has
subsequently amended the first sentence of 29 CFR §
825.220(c) to include, inter alia, the words ―interference‖ and
―retaliating.‖ See 73 Fed. Reg. 67934, 68055 (Nov. 17,
2008); Lovland v. Emp’rs Mut. Cas. Co., 674 F.3d 806, 811
(8th Cir. 2012). Since the parties have not briefed this matter,
and because it does not affect the resolution of this appeal, we
do not resolve here whether the regulation‘s amended
language has any material impact on our reasoning in
Conoshenti.
14
was the sole or most important factor upon which the
employer acted.
IV. ANALYSIS
Although the gravamen of Lichtenstein‘s claim sounds
in retaliation, she alleges both retaliation and interference
claims. See Erdman v. Nationwide Ins. Co., 582 F.3d 500,
509 (3d Cir. 2009) (―[F]iring an employee for a valid request
for FMLA leave may constitute interference with the
employee‘s FMLA rights as well as retaliation against the
employee.‖). As will be seen, both claims are closely
intertwined.
A. RETALIATION
To prevail on a retaliation claim under the FMLA, the
plaintiff must prove 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. See Erdman, 582 F.3d at 508–09
(modifying Conoshenti, 364 F.3d at 146). Because FMLA
retaliation claims require proof of the employer‘s retaliatory
intent, courts have assessed these claims through the lens of
employment discrimination law. Accordingly, claims based
on circumstantial evidence have been assessed under the
burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), while claims based on
direct evidence have been assessed under the mixed-motive
framework set forth in Price Waterhouse v. Hopkins, 490
15
U.S. 228, 276–77 (1989) (O‘Connor, J., concurring). See
Conoshenti, 364 F.3d at 147.11
Although some courts have recently questioned the
viability of mixed-motive claims under the FMLA in the
wake of Gross v. FBL Financial Services, Inc., 129 S. Ct.
2343, 2349 (2009),12 the only federal court of appeals to rule
on the issue has held that Gross does not preclude FMLA
mixed-motive claims. See Hunter v. Valley View Local Sch.,
579 F.3d 688, 692 (6th Cir. 2009). The Department of Labor
has taken a similar position, stating its view in an amicus
brief that the FMLA continues to allow mixed-motive claims.
See Brief for the Sec‘y of Labor as Amicus Curiae in Support
of Plaintiff-Appellant, Breeden v. Novartis Pharm. Corp., 646
F.3d 43 (D.C. Cir. 2011) (Nos. 10-7073; 10-7078). Although
Lichtenstein calls on us to apply the mixed-motive framework
11
Although this Court has not specifically ruled that
McDonnell Douglas applies to FMLA-retaliation claims
based on circumstantial evidence, this is implied by our
application of Price Waterhouse to claims based on direct
evidence, Conoshenti, 364 F.3d at 147, and is the prevailing
rule of the federal courts, see, e.g., Colburn v. Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 331–32 (1st
Cir. 2005); Potenza v. City of New York, 365 F.3d 165, 167–
68 (2d Cir. 2004); King v. Preferred Technical Grp., 166 F.3d
887, 891 (7th Cir. 1999).
12
See, e.g., Twigg v. Hawker Beechcraft Corp., 659 F.3d 987,
1004 (10th Cir. 2011) (―In light of the recent decision of the
United States Supreme Court in Gross . . . there is a
substantial question whether a mixed motive analysis would
apply in a retaliation claim under the FMLA.‖).
16
to her retaliation claim, she readily survives summary
judgment under the more taxing McDonnell Douglass
standard. Accordingly, we proceed under McDonnell
Douglass and leave for another day our resolution of whether
the FMLA continues to allow mixed-motive claims in the
wake of Gross.
Under the McDonnell Douglass framework,
Lichtenstein has the initial burden of establishing a prima
facie case. To do so, she must point to evidence in the record
sufficient to create a genuine factual dispute about each of the
three elements of her retaliation claim: (a) invocation of an
FMLA right, (b) termination, and (c) causation. See Erdman,
582 F.3d at 508–09; Conoshenti, 364 F.3d at 146. If
Lichtenstein can do so, the burden of production shifts to
UPMC to ―articulate some legitimate, nondiscriminatory
reason‖ for its decision. McDonnell Douglass, 411 U.S. at
802. If UPMC meets this minimal burden, Lichtenstein
―must point to some evidence, direct or circumstantial, from
which a factfinder could reasonably . . . disbelieve [UPMC‘s]
articulated legitimate reasons.‖ Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1994).
In its ruling below, the District Court granted summary
judgment to UPMC based on its conclusions that Lichtenstein
(1) failed to establish the invocation (i.e., notice) and
causation prongs of the prima facie case, and (2) failed to
identify evidence casting reasonable doubt on UPMC‘s
proffered justification for her termination. See Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 805 F. Supp. 2d 190, 205–11
(W.D. Pa. 2011). We will address each of these issues in
turn, beginning with notice.
17
1. Notice13
To invoke rights under the FMLA, employees must
provide adequate notice to their employer about their need to
take leave. 29 U.S.C. § 2612(e)(2). In doing so, the
employee ―need not expressly assert rights under the FMLA
or even mention the FMLA.‖ 29 C.F.R. § 825.303(b). When
the leave is unforeseeable, the employee‘s obligation is to
―provide sufficient information for an employer to reasonably
determine whether the FMLA may apply to the leave
request.‖ Id. (emphasis added). As we have previously
noted, this is not a formalistic or stringent standard. See
Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402
(3d Cir. 2007) (stating that the statutory and regulatory text
suggests a ―liberal construction‖ be given to FMLA‘s notice
requirement); see also Rask v. Fresenius Med. Care N. Am.,
509 F.3d 466, 477 (8th Cir. 2007) (―The regulations already
make it very easy for [an employee] to give notice of her
intent to take leave.‖); Burnett v. LFW Inc., 472 F.3d 471, 478
13
Our reference to UPMC in this section is limited to the three
corporate defendants, as Lidey was not a party to
Lichtenstein‘s phone conversation with the nursing supervisor
on January 3rd and there is no evidence that she was aware of
the exact information Lichtenstein conveyed. She later
learned, however, from both the staff log and Lichtenstein‘s
email to her, that Lichtenstein‘s mother had been hospitalized
on January 3rd and that Lichtenstein had called off on the
same day to be with her ―sick mom.‖ As set forth in our
discussion of causation below, there is a genuine factual
dispute as to whether Lidey had sufficient notice of
Lichtenstein‘s FMLA leave prior to the time of the
termination.
18
(7th Cir. 2006) (―The notice requirements of the FMLA are
not onerous.‖).
While the FMLA ―does not require an employer to be
clairvoyant,‖ Brenneman v. MedCentral Health Sys., 366
F.3d 412, 428 (6th Cir. 2004), this does not mean that
employees need to provide every detail necessary for the
employer to verify if the FMLA applies. See, e.g., Ruble v.
Am. River Transp., 799 F. Supp. 2d 1017, 1025 (E.D. Mo.
2011) (―Plaintiff was not required to provide all the details
necessary to show he was entitled to FMLA leave.‖). This
conclusion is dictated by the language of 29 C.F.R. §
825.303(a), which provides that ―where the employer does
not have sufficient information about the reason for an
employee‘s use of leave, the employer should inquire further
of the employee . . . to ascertain whether leave is potentially
FMLA-qualifying‖ (emphasis added). The regulations thus
clearly envision situations where an employee can satisfy her
notice obligation without providing enough detailed
information for the employer to know if FMLA actually
applies. Accordingly, the ―critical test‖ is not whether the
employee gave every necessary detail to determine if the
FMLA applies, but ―how the information conveyed to the
employer is reasonably interpreted.‖ Sarnowski, 510 F.3d at
402. How the employee‘s notice is reasonably interpreted is
generally a question of fact, not law.14 Murphy v. FedEx
14
There are cases, of course, where the undisputed facts are
such that ―no rational trier of fact could conclude‖ that the
employee‘s notice was adequate. See, e.g., Satterfield v. Wal-
Mart Stores, Inc., 135 F.3d 973, 980–81 (5th Cir. 1998). In
such cases, the adequacy of notice can be determined as a
matter of law.
19
Nat’l. LTL, Inc., 618 F.3d 893, 903 (8th Cir. 2010); Burnett,
472 F.3d at 479; Hopson v. Quitman Cnty. Hosp. & Nursing
Home, Inc., 126 F.3d 635, 640 (5th Cir. 1997); Cavaliere v.
Advertising Specialty Institute Inc., --- F.Supp.2d ---, 2012
WL 525891, at *12 (E.D. Pa. Feb. 16, 2012); Zawadowicz v.
CVS. Corp., 99 F. Supp. 2d 518, 529 (D.N.J. 2000); THIRD
CIRCUIT MODEL JURY INSTRUCTIONS–CIVIL § 10.1.1 (2011).
But see Cavin, 346 F.3d at 723 (stating Sixth Circuit‘s view
that adequacy of notice is a question of law). Under the
circumstances of this case, we believe that the adequacy of
Lichtenstein‘s notice is a question of fact.
We begin by noting several facts that are not in
dispute. First, Lichtenstein‘s mother suffered a sudden,
severe, and unexpected health condition on January 3, 2008
that required staying at the hospital for over a week. As such,
Lichtenstein‘s mother suffered a ―serious health condition‖
that entitled Lichtenstein to take FMLA leave on January 3rd.
See 29 U.S.C. § 2611(11) (defining ―serious health condition‖
as a physical condition that requires ―inpatient care‖); 29
C.F.R. § 825.114 (defining ―inpatient care‖ as ―an overnight
stay in a hospital‖). Second, Lichtenstein correctly followed
UPMC‘s call-off procedure by calling UPMC‘s nursing
supervisor soon after arriving at the emergency room. This is
sufficient to establish a genuine dispute about whether
Lichtenstein notified UPMC ―as soon as [was] practicable
under the facts and circumstances.‖15 29 C.F.R. § 825.303(a).
15
Although UPMC argues in its brief that Lichtenstein failed
to give ―advance notice‖ of her leave, br. at 34, this is belied
by the unforeseeable nature of the emergency and UPMC‘s
previous admissions that Lichtenstein followed proper
procedure by calling the nursing supervisor when she did.
20
Finally, during Lichtenstein‘s telephone call with the nursing
supervisor, Lichtenstein conveyed the following facts: (1) she
was ―currently in the emergency room,‖ (2) her ―mother had
been brought into the hospital via ambulance,‖ and (3) she
―would be unable to work that day‖ (emphases added).
(a) “Serious Health Condition”
The District Court concluded that Lichtenstein
conveyed insufficient information to the nursing supervisor to
place UPMC on notice. According to the District Court, the
information was inadequate because ―the fact that a family
member has been taken to the emergency room does not
necessarily reflect a serious medical condition sufficient to
support a request for leave under the FMLA.‖ Lichtenstein,
805 F. Supp. 2d at 203 (emphasis added). ―While the
condition precipitating an emergency room visit may be
serious,‖ the District Court reasoned that ―the condition might
not require ongoing hospitalization or medical treatment.‖ Id.(emphases added). In so reasoning, the District Court
answered the wrong question. The question is not whether
the information conveyed to the employer necessarily rules
out non-FMLA scenarios. The question is whether the
information allows an employer to ―reasonably determine
whether the FMLA may apply.‖ 29 C.F.R. § 825.303(b)
(emphases added). Reasonableness does not require
certainty, and ―may‖ does not mean ―must.‖ It does not
matter that a person rushed by ambulance to the emergency
room ―might not‖ require inpatient care as defined under the
FMLA. Since many people in this situation do require such
21
care, a jury might find that reasonable notice was given under
the circumstances.16
Finally, in considering the adequacy of Lichtenstein‘s
notice, we find it instructive to compare the information she
conveyed with the guidance provided in 29 C.F.R. §
825.303(b).17 According to this regulation, an employee
16
Despite the dissent‘s characterization to the contrary, our
reasoning here does not dictate that a question of fact
necessarily exists whenever an employee ―calls out from
work saying she needs to go to the hospital.‖ Lichtenstein did
not merely give a generic reference about going to a hospital;
she specifically told UPMC that her mother had been taken to
the emergency room in an ambulance. As common sense
would suggest, people rushed to the emergency room in an
ambulance are generally in a more serious health situation
than people who go on their own accord. In fact, data from
the United States indicate that about forty percent of people
taken to the emergency room in an ambulance are admitted
for inpatient care, versus just ten percent of those who ―walk
in.‖ See Gregory Luke Larkin, et al., National Study of
Ambulance Transports to United States Emergency
Departments: Importance of Mental Health Problems, 21
PREHOSPITAL & DISASTER MED. 82, 85 tbl.1 (2006). We are
not presented, therefore, with the kind of vague, generic
reference to a ―hospital‖ in which the likelihood of a serious
health condition is merely conceivable but not sufficiently
likely to warrant shifting the burden of inquiry onto the
employer.
17
The Department of Labor has described this regulation as
―provid[ing] additional guidance for employees regarding
22
whose family member has a serious health condition may
provide adequate notice by stating that the ―family member is
under the continuing care of a health care provider,‖ or, that
the family member has a condition that renders her ―unable to
perform daily activities.‖ Id. A trier-of-fact could reasonably
conclude that the information conveyed by Lichtenstein did
both. Lichtenstein stated that her mother was still at the
hospital, which implies ―continuing care,‖18 and it could be
reasonably inferred that a person brought by ambulance to an
emergency room and remaining at the hospital is ―unable to
perform daily activities.‖
Of course, a trier-of-fact could also consider
Lichtenstein‘s failure to provide any further information to
UPMC about her mother‘s condition when she returned to
work the very next day. Lichtenstein was not necessarily
obligated, however, to provide additional information. The
regulations state that if an employee‘s initial notice
reasonably apprises the employer that FMLA may apply, it is
the employer‘s burden to request additional information if
what is ‗sufficient information‘‖ to constitute notice. U.S.
Dep‘t of Labor, Frequently Asked Questions and Answers
About the Revisions to the Family and Medical Leave Act,
http://www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.ht
m (last visited July 9, 2012).
18
Since the regulation refers to ―continuing care‖ rather than
―continuing treatment,‖ the DOL‘s definition of ―continuing
treatment‖ is not necessarily applicable. See 29 C.F.R. §
825.115(a) (stating that ―continual treatment‖ requires ―[a]
period of incapacity of more than three consecutive, full
calendar days‖).
23
necessary. 29 C.F.R. § 825.303(a). Thus, since we believe
there is a genuine dispute about whether Lichtenstein‘s phone
call to the nursing supervisor met this standard, her failure to
provide further information on the following day at work does
not defeat her claim at this stage.
(b) “To Care For”
UPMC contends that Lichtenstein‘s notice was
deficient because it failed to provide sufficient information
from which UPMC could infer she would ―care for‖ her
mother. UPMC‘s arguments on this issue wholly miss the
point. As previously stated, FMLA regulations define the
term ―to care for‖ as ―encompass[ing] both physical and
psychological care,‖ including the provision of
―psychological comfort and reassurance which would be
beneficial to a . . . parent with a serious health condition who
is receiving inpatient or home care.‖ 29 C.F.R. § 825.124(a).
We assess the adequacy of Lichtenstein‘s notice, therefore, by
considering whether UPMC could have reasonably inferred
she would provide ―psychological comfort and reassurance‖
to her mother.
UPMC claims that Lichtenstein ―provided no
indication that she was needed to care for her mother—only
that her mother had been transported to the hospital.‖ Br. at
36. It is undisputed, however, that Lichtenstein told UPMC
she was ―currently in the emergency room‖ with her mother
and ―unable to work that day.‖ A reasonable fact-finder
could infer from these statements that Lichtenstein was
asking for leave to care for her mother. UPMC implicitly
conceded this point at oral argument when it stated that
staying and caring for one‘s mother under such circumstances
24
―would be a natural thing to do.‖ If it was ―a natural thing to
do,‖ it was certainly reasonable for UPMC to infer. It matters
not that UPMC received no ―doctor‘s opinion or report that
the mother for some emotional reasons required the presence
of the plaintiff at the hospital.‖ An employer does not need a
doctor‘s report to realize that a person rushed to the hospital
in an ambulance will likely receive ―psychological comfort
and reassurance‖ by the presence of their loved ones. See
Fioto v. Manhattan Woods Golf Enterprises, LLC, 270
F.Supp.2d 401, 405 (S.D.N.Y. 2003) (―By the very terms of
the FMLA regulations, a child‘s offering comfort and
reassurance to a bedridden parent qualifies as ‗caring for‘ the
parent.‖).
Similarly it does not matter that UPMC did not know
if Lichtenstein was an ―only child,‖ or if there were ―other
family members‖ at the hospital.19 The FMLA regulations
expressly state that ―[t]he employee need not be the only
individual or family member available to care for the family
member.‖ 29 CFR § 825.124(b); see also Romans v. Mich.
Dep’t of Human Servs., 668 F.3d 826, 840–41 (6th Cir. 2012)
(stating that ―plain language of the regulations‖ entitles an
employee to FMLA leave even when other relatives are
available to care for the sick family member).
19
At oral argument, UPMC argued that it could not have been
expected to know that Lichtenstein would take care of her
mother because ―there‘s no evidence in this record that the
plaintiff is an only child, that there‘s no other family members
there, who else was at the hospital to give nurture, or any of
that type of information.‖
25
Finally, there is no merit to UPMC‘s argument that
Lichtenstein‘s January 8th letter made it reasonable for
UPMC to infer that Lichtenstein did not provide care for her
mother on January 3rd. The logic of UPMC‘s argument is as
follows: (A) since Lichtenstein‘s January 8th letter stated that
she needed to care for her mother after her mother left the
hospital, ergo (B) ―she wasn‘t needed to care for her mother
while her mother was in the hospital.‖ There is nothing
inherently contradictory, however, about asking to care for
one‘s seriously ill parent both during and after their hospital
stay. Indeed, the FMLA regulations expressly define ―to care
for‖ as including both care provided at home and the hospital.
See 29 C.F.R. § 825.124(a) (stating that care includes
―providing psychological comfort and reassurance which
would be beneficial to a . . . parent with a serious health
condition who is receiving inpatient or home care‖ (emphases
added)). UPMC‘s logic thus relies on a cramped notion of
what it means ―to care for‖ under the FMLA.
For the reasons stated, a genuine factual dispute exists
about whether Lichtenstein provided adequate notice to
timely and reasonably apprise UPMC that the FMLA may
apply to her request for leave. A trier-of-fact considering this
question would be entitled to consider the ―totality of the
circumstances,‖ Rynders v. Williams, 650 F.3d 1188, 1196
(8th Cir. 2011), including—but not limited to—evidence
shedding light on Lichtenstein‘s credibility and Lichtenstein‘s
pattern of conduct during and following January 3rd,
including her failure to mention her mother‘s condition when
she returned to work on January 4th as well as her email to
Lidey on January 8th.
26
2. Causation
Having determined that a genuine factual dispute
exists with respect to the notice prong of Lichtenstein‘s prima
facie case, we now consider the question of causation. To
demonstrate a prima facie case of causation, Lichtenstein
must point to evidence sufficient to create an inference that a
causative link exists between her FMLA leave and her
termination. See Farrell v. Planters Lifesavers Co., 206 F.3d
271, 279–81 (3d Cir. 2000). When the ―temporal proximity‖
between the protected activity and adverse action is ―unduly
suggestive,‖ this ―is sufficient standing alone to create an
inference of causality and defeat summary judgment.‖
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217,
232 (3d Cir. 2007). ―Where the temporal proximity is not
‗unusually suggestive,‘ we ask whether ‗the proffered
evidence, looked at as a whole, may suffice to raise the
inference.‘‖ Id. (quoting Farrell, 206 F.3d at 280).
Here, Lichtenstein was terminated on January 10th,
just seven days after she invoked her right to FMLA leave,
and just three days after Lidey returned from vacation. Had
things gone according to UPMC‘s plan, even less time would
have elapsed. Both Lidey and Brown testified that Lidey‘s
plan was to fire Lichtenstein on January 8th (the first day
Lidey and Lichtenstein were scheduled to work the same shift
following Lidey‘s return from vacation). ―Although there is
no bright line rule as to what constitutes unduly suggestive
temporal proximity,‖ id. at 233, the temporal proximity in this
case is in the realm of what this Court and others have found
sufficient at the prima facie stage, see, e.g., Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding two days
unduly suggestive); Seeger v. Cincinnati Bell Tel. Co., 681
27
F.3d 274, 283 (6th Cir. 2012) (three weeks); Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (four
days); cf. McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir.
2008) (five days in Title VII retaliation case).
Even if the temporal proximity in this case is not
unduly suggestive, there is other evidence from which an
inference of causation can be drawn. UPMC‘s position
statement to the EEOC, for example, specifically listed
Lichtenstein‘s January 3rd leave as one of her three absences.
Since UPMC‘s position statement stated that Lichtenstein‘s
attendance problems were one of the reasons it terminated
Lichtenstein, a trier-of-fact could infer that UPMC considered
Lichtenstein‘s January 3rd absence as a negative factor in its
termination decision. This inference is supported by other
evidence in the record. Specifically, when Lidey returned to
work on January 7th, she responded to Krautz‘s email (the
one in which Krautz reported Lichtenstein‘s call-off on
January 3rd) by requesting Lichtenstein‘s call-off records
from Harris. From this, a trier-of-fact could infer that Lidey‘s
decision to request Lichtenstein‘s call-off records, and ergo
Lidey‘s decision that day to terminate Lichtenstein, was
triggered by Lidey learning of the January 3rd absence.
We recognize that since Krautz‘s email made no
mention of Lichtenstein‘s reason for calling off, it does not
necessarily follow that Lidey knew Lichtenstein‘s absence
was likely protected under the FMLA. Cf. Moore v. City of
Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006) (―To the
extent that [Title VII plaintiff] relies upon the brevity of the
time periods between the protected activity and alleged
retaliatory actions to prove causation, he will have to show as
well that the decision maker had knowledge of the protected
28
activity.‖ (internal citations omitted)). There is other
evidence in the record, however, from which this inference
could reasonably be drawn. See Cavaliere, 2012 WL 525891,
at *12 (finding plaintiff‘s circumstantial evidence sufficient to
infer decision maker‘s awareness of her FMLA leave). Most
tellingly, Lidey received a personal email from Lichtenstein
the following day which explicitly stated that Lichtenstein‘s
mother had been hospitalized on January 3rd and had
remained hospitalized ever since. Moreover, Lichtenstein‘s
staff log—which Lidey requested and received from Harris
on both January 7th and 9th—included a notation that
Lichtenstein missed work on the 3rd because of her ―sick
mom.‖ Taken together, these two facts provide a sufficient
basis from which to infer that by the time Lidey terminated
Lichtenstein, she was on notice that Lichtenstein‘s January
3rd absence may be protected under the FMLA.
Although Lidey now claims she never read
Lichtenstein‘s email nor saw the ―sick mom‖ notation on the
staff log, a reasonable trier-of-fact could find these claims
unworthy of credence. First, Lidey did not merely receive
Lichtenstein‘s email; she replied to it. Second, Lidey did not
merely receive the staff log, she specifically requested it—not
once, but twice. Third, Lidey‘s insistence that she did not
know of Lichtenstein‘s mother‘s illness20 is directly
20
In her deposition, Lidey stated: ―I terminated Jamie by
telephone [on January 10, 2008] before I knew anything
about her mom being ill or needing to ask for leave.‖ App. at
335. When confronted with the email she received from
Lichtenstein that contained this information, Lidey testified,
―I did not see that.‖ Id. When confronted with the fact that
she twice requested and received Lichtenstein‘s staff log
29
contradicted by Brown‘s deposition. According to Brown:
―What I recall [Lidey] saying was that Jamie was stating that
she needed to be off to care for her mother.‖ App. at 424.
Thus, even if there is insufficient evidence to show Lidey‘s
knowledge of Lichtenstein‘s protected activity when she
returned to work on January 7th, any benefit of this ignorance
was lost when Lidey received Lichtenstein‘s email the next
day.21 See Brungart v. BellSouth Telecomm., Inc., 231 F.3d
791, 799 (11th Cir. 2000) (―[T]he plaintiff must generally
show that the decision maker was aware of the protected
conduct at the time of the adverse employment action.‖
(emphasis added)).
In its brief, UPMC argues that any inference of
causation is defeated by Lidey‘s claim that she decided to
terminate Lichtenstein prior to January 3rd. This argument is
unavailing because, as discussed below in our analysis of
pretext, Lichtenstein has established a genuine dispute about
the date of UPMC‘s termination decision and whether it
occurred before or after January 3rd.22 UPMC claims, for
(which contained the note about Lichtenstein‘s mother being
sick on January 3rd), Lidey responded, ―[i]t doesn‘t mean that
I looked at that, and I was, I don‘t believe I looked at it at that
point in time.‖ Id.21
Although Lichtenstein‘s email did not specifically state that
she missed work on January 3rd because of her mother‘s
hospitalization, Lidey was aware from the staff log that
Lichtenstein‘s January 3rd absence was a result of her mom
being sick.
22
A similar limitation applies to the District Court‘s causation
analysis, the conclusion of which was dictated by its finding
30
example, that Lidey decided to fire Lichtenstein for arriving
late and leaving early on December 30th. UPMC‘s position
statement to the EEOC, however, made no mention of this
incident as a factor in its decision, and Lidey could not even
recall when she learned about it. A trier-of-fact could infer
from this that UPMC did not discover the December 30th
incident until sometime after Lichtenstein‘s termination. A
post hoc ground for termination, while potentially relevant to
the calculation of damages, is ―irrelevant‖ to the question of
causation. Brenneman, 366 F.3d at 416 n.2. Accordingly, at
this stage, UPMC does not benefit from the principle that
employers need not suspend plans to discipline an employee
upon discovering that said employee engaged in protected
activity on matters unrelated to the contemplated action. See
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(establishing this principle in the Title VII context); Salameh
v. Sears Holding Mgt. Corp., No. 08 C 4372, 2010 WL
183361 (N.D. Ill. Jan. 13, 2010) (applying principle to the
FMLA context).
For all of the abovementioned reasons, we believe
Lichtenstein has presented sufficient evidence to establish a
that Lichtenstein had not invoked her right to FMLA leave on
January 3rd. Since this removed Lichtenstein‘s January 3rd
absence from FMLA‘s protections, the District Court
regarded any and all considerations of this absence irrelevant
to causation. Thus, because ―the wheels of [Lichtenstein‘s]
termination were already in motion‖ by January 8th, the
District Court concluded that Lichtenstein failed to
demonstrate a causative link. Lichtenstein, 805 F. Supp. 2d at
213.
31
prima facie case of causation. This evidence, when drawing
all reasonable inferences in Lichtenstein‘s favor, is sufficient
for a fact-finder to conclude: (1) Lidey‘s decision to terminate
Lichtenstein was triggered by the January 3rd absence; (2)
prior to terminating Lichtenstein, Lidey learned that the
January 3rd absence was likely taken for an FMLA-
qualifying reason; and (3) by proceeding with the termination,
Lidey considered Lichtenstein‘s FMLA activity a ―negative
factor‖ that further justified the termination.
3. Pretext
We now address the legitimate, non-discriminatory
reasons that UPMC has articulated for terminating
Lichtenstein and consider whether Lichtenstein has
established reasonable doubt that this proffered justification is
mere pretext for retaliation.
According to UPMC, Lichtenstein was terminated
because of her chronic tardiness and absenteeism, with the
―last straw‖ being her late appearance and early departure on
December 30th. Br. at 43. Specifically, UPMC states that:
[T]he decision to terminate Plaintiff‘s employment
was made after Plaintiff, despite being expressly told
that she was to report for her scheduled shift on
December 30, 2007, decided to make her own
schedule by arriving very late and leaving very early.
In fact, the decision was made prior to Ms. Lidey
leaving the office for vacation on December 30, 2007.
Indeed, Ms. Lidey spoke to Helene Brown about the
decision to terminate Plaintiff prior to January 1, 2008
32
and Ms. Brown concurred in that decision.
Id. at 15 (internal citations omitted). UPMC thus claims that
―[n]either the January 3, 2008 nor January 8, 2008 absences
were taken into account‖ in the termination decision. Id.
In order to demonstrate that UPMC‘s proffered
justification for terminating her is merely pretextual,
Lichtenstein ―must point to some evidence, direct or
circumstantial, from which a factfinder could reasonably . . .
disbelieve the employer‘s articulated legitimate reasons.‖
Fuentes, 32 F.3d at 764. To do so, Lichtenstein ―must
demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in [UPMC‘s]
proffered legitimate reasons for its actions that a reasonable
factfinder could rationally find them ‗unworthy of credence.‘‖
Id. at 765. Notwithstanding the District Court‘s conclusion to
the contrary, we believe Lichtenstein has met this burden. To
begin with, Lichtenstein has presented evidence that
contradicts UPMC‘s two key assertions that (1) the December
30th incident was the ―final‖ straw that triggered
Lichtenstein‘s termination, and (2) Lidey made the
termination decision prior to Lichtenstein‘s absence on
January 3rd.
First, while UPMC claims that the December 30th
incident was the ―final straw‖ triggering Lichtenstein‘s
termination, a trier-of-fact could reasonably infer that UPMC
was not even aware of this incident prior to terminating
Lichtenstein. This inference can be drawn from the following
evidence: (A) Lidey could not recollect when she first learned
about the December 30th incident, (B) UPMC did not cite the
incident as a factor in the termination decision in its
33
explanation to the EEOC; and (C) the incident was not
included in Lichtenstein‘s staff log that Lidey can be inferred
to have reviewed prior to firing her.
Second, the only evidence showing Lidey decided to
fire Lichtenstein prior to going on leave is Lidey‘s own
testimony. This is important because Lidey contradicted
herself on this very point. At least twice during her
deposition Lidey stated that she couldn‘t recall if she made
the termination decision prior to going on vacation.
Similarly, although Lidey stated that she always spoke with
Brown prior to firing an employee, she testified at least three
times during her deposition that she could not recall if she
spoke with Brown before or after going on vacation. These
contradictions go to the very core of UPMC‘s proffered
reason for terminating Lichtenstein. They also ―raise
suspicions‖ about Lidey‘s credibility. See Bray v. Marriott
Hotels, 110 F.3d 986, 990 (3d Cir. 1997) (―An inference of
pretext may arise if the plaintiff can raise suspicions with
respect to the defendant's credibility . . . .‖). Not only did
Lidey repeatedly contradict herself on the timing of her
decision, substantial evidence contradicts her assertion that
she did not know Lichtenstein‘s mother was ill.23 Since
23
This evidence includes: (1) Brown‘s testimony that Lidey
told her about Lichtenstein‘s mother‘s illness prior to
terminating Lichtenstein, (2) Lidey‘s request and receipt of
Lichtenstein‘s staff log in which the words ―sick mom‖ were
clearly written in the entry for the January 3rd absence, and
(3) Lidey‘s receipt of and reply to Lichtenstein‘s email in
which Lichtenstein had discussed her mother‘s
hospitalization.
34
Lidey‘s testimony is the only evidence showing that the
termination decision was made prior to January 3rd, a trier-
of-fact would be justified in giving this evidence little
evidentiary weight.
In the opinion below, however, the District Court
reasoned that Lidey‘s contradictions were immaterial because
they merely pertained to the timing of UPMC‘s decision (i.e.,
whether Lidey made the decision before or after she went on
vacation), not to her proffered justification for doing so (i.e.,
Lichtenstein‘s attendance and scheduling problems).
According to the District Court, ―Ms. Lidey‘s testimony does
not offer inconsistent reasons for Ms. Lichtenstein‘s
termination; the reason is consistently her attendance and
scheduling problems.‖24 Lichtenstein, 805 F. Supp. 2d at 209.
The District Court‘s reasoning is flawed. The question is not
whether UPMC discharged Lichtenstein for absenteeism and
tardiness; the question is whether Lichtenstein‘s FMLA-
qualifying leave on January 3rd was a ―negative factor‖ that
hastened her termination. 29 CFR § 825.220(c); see also
Cavin, 346 F.3d at 726 (―[A] termination based only in part
on an absence covered by the FMLA, even in combination
with other absences, may still violate the FMLA.‖ (internal
quotation marks omitted)). The timing of UPMC‘s decision
is thus critical to determining whether UPMC relied solely on
the pre-January 3rd incidents, or whether it also considered
the January 3rd absence as an additional negative factor.
24
The District Court reasoned that Lidey‘s testimony ―is not
so much inconsistent as it is vague as to the date on which
certain events took place three years earlier.‖ Lichtenstein,
805 F. Supp. 2d at 209.
35
The importance of timing to the question of pretext
was illustrated by the Seventh Circuit in Kohls v. Beverly
Enterprises Wisconsin, Inc., 259 F.3d 799 (7th Cir. 2001). In
Kohls, the employee engaged in behavior prior to taking
FMLA leave that was clearly sufficient to warrant her
termination. 259 F.3d at 805. The Seventh Circuit noted,
however, that there was ―an additional twist‖ to the case
because the employer ―did not decide to fire Kohls until some
time after she took leave.‖ Id. This was important, the
Seventh Circuit explained, because:
We can imagine circumstances in which the timing of
this decision could lead a fact finder to infer that the
employee would not have been fired absent her taking
of leave (if, for example, a supervisor who had been
aware of problems with an employee did not decide to
fire the employee until she took leave, and the
supervisor based the firing on the incidents of which
the employer had already been aware).
Id. at 806. Although the Seventh Circuit affirmed summary
judgment for the employer, it did so because the record was
―clear‖ that ―the employer did not discover many of the
deficiencies in [the employee‘s] work . . . until after [the
employee] took leave.‖ Id. (emphases added).
As with the employee in Kohls, Lichtenstein engaged
in behavior that was undoubtedly sufficient for UPMC to
terminate her employment (i.e., attendance and scheduling
problems during a probationary period in which a progressive
disciplinary policy did not apply). In sharp contrast,
however, to the situation in Kohls, the record here is clear
(with the exception of the December 30th incident) that
36
UPMC was aware of Lichtenstein‘s performance deficiencies
prior to her taking leave on January 3rd. Despite this
knowledge, UPMC did not fire Lichtenstein until after she
took her January 3rd leave. Although UPMC insists that the
timing can be explained by the simple fact that Lidey left for
vacation on December 31st and did not have an opportunity
to fire Lichtenstein prior to January 3rd, Lidey‘s own
testimony raises significant doubts about this explanation.
Indeed, Lidey herself could not remember when she made the
decision to terminate Lidey, nor could she remember when
she learned of the December 30th incident that purportedly
prompted this decision.
We believe, therefore, that Lichtenstein has met her
burden of demonstrating pretext because, as per the Seventh
Circuit‘s reasoning, ―the timing of [UPMC‘s] decision could
lead a fact finder to infer that [Lichtenstein] would not have
been fired absent her taking of leave.‖ Id.; accord Moorer v.
Baptist Mem’l Health Care Sys., 398 F.3d 469, 488–90 (6th
Cir. 2005) (―The record . . . shows that [the employer] was
aware of many of Moorer‘s alleged performance deficiencies
prior to his FMLA leave, thereby casting doubt on the timing
of the purported reasons for his termination.‖).
B. INTERFERENCE
By terminating her employment for having invoked
her right to FMLA leave, Lichtenstein argues UPMC
unlawfully interfered with her rights in violation of 29 U.S.C.
§ 2615(a)(1). See Erdman, 582 F.3d at 509 (―[F]iring an
employee for a valid request for FMLA leave may constitute
interference with the employee‘s FMLA rights as well as
37
retaliation against the employee.‖).25 To prevail on her
interference claim, Lichtenstein must show (1) she was
entitled to take FMLA leave on January 3rd and/or January
8th, and (2) UPMC denied her right to do so. See Callison,
430 F.3d at 119.
In proving that UPMC interfered with her rights,
Lichtenstein does not need to prove that UPMC acted with
discriminatory intent. Sommer v. The Vanguard Group, 461
F.3d 397, 399 (3d Cir. 2006); Callison, 430 F.3d at 120. The
FMLA, however, ―does not provide employees with a right
against termination for a reason other than interference with
rights under the FMLA.‖ Sarnowski, 510 F.3d at 403.
25
It is not clear to us that Erdman necessarily guarantees that
plaintiffs have an automatic right to claim interference where,
as here, the claim is so clearly redundant to the retaliation
claim. In recent years, several federal courts of appeals have
affirmed dismissal of interference claims that— although not
necessarily analogous to Lichtenstein‘s claim here—were
duplicative of the plaintiffs‘ retaliation claims. E.g., Lovland,
674 F.3d at 811–12; Seeger v. Cincinnati Bell Telephone Co.,
681 F.3d 274, 282–83 (6th Cir. 2012); Stallings v. Hussmann
Corp., 447 F.3d 1041, 1051 (8th Cir. 2006); see also Atchison
v. Sears, 666 F. Supp. 2d 477, 489 (E.D. Pa. 2009)
(―[Plaintiff‘s] interference claim is identical to his retaliation
claim, and premised on the same allegation . . . . He cannot
escape the McDonnell Douglas analysis to prove his case
merely by affixing an ‗interference‘ label to one of his
duplicative claims. Thus, [plaintiff‘s] FMLA violation
allegations should be analyzed as a retaliation claim.‖). Since
this issue was not raised below nor presented on appeal, we
do not address it here.
38
UPMC, therefore, can defeat Lichtenstein‘s claim if it can
demonstrate that Lichtenstein was terminated for reasons
―unrelated to‖ her exercise of rights. Id.; accord Ballato v.
Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012) (―If there
exists a showing of interference, the burden shifts to the
employer to prove there was a reason unrelated to the
employee‘s exercise of FMLA rights for terminating the
employee.‖); Michniewicz v. Metasource, LLC, 756
F.Supp.2d 657, 666 (E.D. Pa. 2010) (―The employee bears the
initial burden of showing both elements of the interference
claim, and then the burden shifts to the employer . . . .‖).
Whether or not UPMC will be able to meet its burden, we
have no trouble concluding—for the reasons set forth in our
retaliation analysis above—that Lichtenstein has met her
burden at this stage in the litigation.
V. CONCLUSION
For the foregoing reasons, we will vacate the District
Court‘s grant of summary judgment to UPMC on both the
retaliation and interference claims and remand to the District
Court for proceedings consistent with this opinion.
39
AMBRO, Circuit Judge, Dissenting
Pursuant to the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. § 2601 et seq., an employee may
qualify for unforeseen FMLA leave only by providing an
employer with notice that contains “sufficient information for
an employer to reasonably determine whether the FMLA may
apply to the leave request.” 29 C.F.R. § 825.303(c).
Congress included this notice requirement in order to balance
the employee’s entitlement to “reasonable leave” with the
“legitimate interests of employers.” 29 U.S.C. § 2601(b)(2);
see Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 951
(7th Cir. 2004) (Posner, J.) (“Conditioning the right to take
FMLA leave on the employee’s giving the required notice to
his employer is the quid pro quo for the employer’s partial
surrender of control over his work force.”). In keeping with
the purpose and language of the FMLA, I would hold as a
matter of law that Ms. Lichtenstein failed to provide adequate
notice that the FMLA applied to her January 3, 2008 absence,
and I would affirm the District Court’s grant of summary
judgment to the University of Pittsburgh Medical Center
(“UPMC”). For the reasons given below, and despite Judge
Van Antwerpen’s well-crafted opinion, I respectfully dissent.
For her interference and retaliation claims to survive
summary judgment, Lichtenstein must introduce evidence
that she was entitled to FMLA benefits. Hayduk v. City of
Johnstown, 386 F. App’x 55, 60 (3d Cir. 2010) (“[T]he first
elements of both theories [i.e., interference and retaliation]
are essentially identical: a plaintiff . . . must establish, among
other things, that he had a right to FMLA benefits.”). To
establish that entitlement, Lichtenstein must demonstrate that
she gave her employer adequate notice of the need for FMLA
leave. See id. Federal regulations require that an employee
“state a qualifying reason for the needed leave.” 29 C.F.R.
1
§ 825.301(b). When the need for leave is unforeseeable,
employees must give notice “as soon as practicable under the
facts and circumstances of the particular case” and according
to the employer’s “usual and customary notice and procedural
requirements.” Id. § 825.303(a) & (c). The employee “need
not expressly assert rights under the FMLA or even mention
the FMLA,” but must “provide sufficient information for an
employer to reasonably determine whether the FMLA may
apply to the leave request.” Id. § 825.303(b). Compare
Sarnowski v. Air Brook Limousine, Inc., 510 F.3d 398, 402
(3d Cir. 2007) (“In providing notice, the employee need not
use any magic words.”), with Hayduk v. City of Johnstown,
580 F. Supp. 2d 429, 471 (W.D. Pa. 2008) (“The FMLA does
not require an employer to be clairvoyant.” (quoting
Brenneman v. MedCentral Health Sys., 366 F.3d 412, 428
(6th Cir. 2004)). The employer may have a duty to “inquire
further . . . to ascertain whether leave is potentially FMLA-
qualifying,” 29 C.F.R. § 825.301(a), but that duty only arises
when the employee provides adequate notice. See Wilson v.
Lemington Home for the Aged, 159 F. Supp. 2d 186, 192
(W.D. Pa. 2001); De Luca v. Trs. of Univ. of Pa., 834
F. Supp. 2d 282, 293 (E.D. Pa. 2011).
Lichtenstein contends that she gave proper notice
when she called off on January 3 and told the nursing
supervisor, “I was currently in the emergency room, that my
mother had been brought into the hospital via ambulance, and
I would be unable to work that day.” I agree with my
colleagues that the notice issue is generally a question of fact
and “the critical test is not whether the employee gave every
necessary detail to determine if the FMLA applies, but how
the information conveyed to the employer is reasonably
interpreted.” Id. at 16 (quotation marks & citation omitted).
However, I cannot agree that “genuine factual disputes exist
about whether Lichtenstein’s notice was adequate.” Maj. Op.
at 21.
2
Lichtenstein did not state a qualifying reason for her
January 3 absence because she failed to mention essential
details that were critical for adequate notice, namely the
seriousness of her mother’s condition and her mother’s need
for care. Lichtenstein conveyed to UPMC that her mother
was at the hospital, but not that her mother was suffering
from a serious health condition. According to the majority,
Lichtenstein’s notice might have been sufficient because
“many people in [her mother’s] situation do require [FMLA-
qualifying] care.” Maj. Op. at 19 (emphasis in text). This
view imposes on employers a much broader obligation than, I
believe, the FMLA requires.
Consider, for example, an employee who calls out
from work saying she needs to go to the hospital. Whether
that employee is going to the hospital for an emergency
procedure, a routine check-up, or just to pick up a friend, the
majority’s reasoning dictates that the notice cannot be
designated inadequate as a matter of law because “many
people in this situation” require care for a serious health
condition. Indeed, simply calling out “sick” would qualify as
sufficient notice under the majority’s reading of the FMLA
had the Department of Labor not adopted an explicit rule to
the contrary. See 29 C.F.R. § 825.303(b). “If you have brain
cancer but just tell your employer that you have a headache,
you have not given the notice that the Act requires.”
Aubuchon, 359 F.3d at 952.1 The majority’s lenient reading
1
The Seventh Circuit Court requires that an employee’s
notice “give the employer enough information to establish
probable cause, as it were, to believe that he is entitled to
FMLA leave.” Id. at 953; but see Scobey v. Nucor Steel-Ark.,
580 F.3d 781, 788 (8th Cir. 2009) (applying a more lenient
notice standard). I do not address whether that is the
appropriate standard to apply to notice questions in FMLA
3
of the notice requirement distorts the balance Congress and
the Department of Labor struck between employee and
employer interests, and improperly “place[s] a substantial and
largely wasted investigative burden on employers.” Id. at
953.
Lichtenstein also conveyed to UPMC that she needed
the day off, but not that the day off was necessary to care for
her mother. Though UPMC conceded that caring for one’s
mother under such circumstances “would be a natural thing to
do,” Maj. Op. 21, empathy cannot make up for Lichtenstein’s
failure to mention an FMLA-qualifying reason for her
absence. See Aubuchon, 359 F.3d at 952 (“Wanting to stay
home with one's wife until she has the baby, while
understandable, is not the same thing as wanting to stay home
to care for a spouse who has a serious health condition.”).
In addition to omitting critical details from her
statements to the nursing supervisor, Lichtenstein failed to
provide notice “as soon as practicable.” See 29 C.F.R.
§ 825.303(a). She returned to work on January 4—while her
mother was still in the hospital—and did not notify a
supervisor about her mother’s serious health condition.
Lichtenstein even testified at her deposition that she first
asked for FMLA leave on January 8, not January 3. App. at
66 (“The first time that I asked [for leave] . . . [w]as January 8
of 2008.”). Even if her request for leave on January 8 was
made “as soon as practicable,” which it was not, the direct
evidence in the record indicates only that the decision was
made to terminate Lichtenstein before the 8th. See App. at
345 (Lidey testifying that the decision was made “before New
Year’s”); 423-424 (Brown testifying that the decision “had to
be [made] prior to January 8th”). Lichtenstein argues that the
cases, but we should be aware of the important considerations
that led the Seventh Circuit to adopt it.
4
decision may have been made “on or after January 7,”
Lichtenstein Br. at 17, but she only cites non-probative
circumstantial evidence to support her claim. See id. at 14
(citing App. at 331 (Lidey testifying that she “discussed
[Lichtenstein’s call-offs] with Human Resource” on January
7)). Lichtenstein cites no direct evidence that the decision
was made after the 8th and does not address Brown’s
testimony.
There are situations in which an employee provides
sufficient notice to trigger an employer’s duty to inquire, but
this is not one of them. See Satterfield v. Wal-Mart Stores,
Inc., 135 F.3d 973, 978-91 (5th Cir. 1998) (rehearing and
rehearing en banc denied) (holding, as a matter of law, that an
employee’s statement that she “was having a lot of pain and .
. . wouldn’t make it in to work that day” provided insufficient
notice to her employer under the FMLA). That Lichtenstein’s
statements might reasonably be construed as providing
adequate notice is a bridge too far. If notice is adequate when
an employer can “reasonably determine whether the FMLA
may apply,” 29 C.F.R. § 825.303(c), then we should find that
notice is inadequate when, as in this case, an employee omits
vital pieces of information that would distinguish FMLA
leave from an ordinary absence.
If Lichtenstein’s statements could reasonably be
interpreted as sufficient notice of her need for FMLA leave, I
would join my colleagues and reverse the grant of summary
judgment. However, I believe that the statements are
insufficient as a matter of law. Thus I respectfully dissent.
5