Vanessa BUDHUN, Appellant v. READING HOSPITAL AND MEDICAL CENTER.
No. 11-4625.
United States Court of Appeals, Third Circuit.
Filed: Aug. 27, 2014.
Submitted Pursuant to Third Circuit LAR 34.1(a) Feb. 10, 2014.
III.
For the foregoing reasons, the District Court‘s orders will be affirmed.
Vincent Candiello, Esq., Post & Schell, Harrisburg, PA, for Appellee.
Before: CHAGARES, SHWARTZ, and ALDISERT, Circuit Judges.
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“),
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 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.
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 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 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 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
II.
The District Court had federal question jurisdiction pursuant to
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.”
A.
Budhun contends that she adduced enough evidence to create a genuine dispute of material fact regarding whether
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.
1.
Reading argues that Budhun did not really attempt to return to work on August 16, 2010 because shortly after 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
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).
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 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 pre-
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.
- The employer‘s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The work experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
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
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 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
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.”
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, 755 F.3d at 192-93. 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.
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 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 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
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.”
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 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
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.
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.”
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.”
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.”
It is abundantly clear that Reading considered Budhun to have a broken bone in her hand and nothing more. The pro-
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.
No. 13-1294.
United States Court of Appeals, Third Circuit.
Argued June 12, 2014.
Filed: Aug. 27, 2014.
D.E., a minor, on his behalf, by his Parents; Maria English*; Ronald Sheffy v. CENTRAL DAUPHIN SCHOOL DISTRICT, Maria English* and D.E., Appellants.