MEMORANDUM
In this employment case, a worker slated for termination because of poor attendance asked that his employer retroactively reclassify two of his unexcused absences as protected leave under the Family and Medical Leave Act (FMLA), or the Americans with Disabilities Act (ADA), as supplemented by state law. The employer declined and proceeded to fire him. Discovery is now complete, and because there is ho evidence of discriminatory intent, and the plaintiff was not eligible for FMLA leave as a matter of law, summary judgment will be granted in favor of the employer.
I. BACKGROUND
Plaintiff Kevin Isley was employed by Defendant Aker Philadelphia Shipyard (the Shipyard) from February 2013 until February 2015. During this time, he earned generally favorable performance reviews and was promoted from “laborer” to “ship-fitter,” but also accumulated 12 “no-pay” ■ absences—two more than were permitted under the Collective Bargaining Agreement (CBA) that governed his employment. On that basis, the -Shipyard fired him.
Isley’s last two absences, which resulted in his termination and are the focus of this suit, occurred on February 19 and 23, 2015. On the afternoon of the 19th, Isley began experiencing chest pains and shortness of breath. These symptoms intensified over the course of the day and around 9:00 p.m., an hour before his shift was scheduled to begin, Isley had a friend drive him to a local emergency room, where he remained for approximately three and half hours, until 12:30 a.m. the following day. During this time, doctors ran a battery of tests, ruled out the possibility of a heart attack, and diagnosed Isley with costo-chondritis, an inflammation of the cartilage in the rib cage which normally subsides on its own. Accordingly) Isley was directed to rest for a few days, take Motrin with meals, and follow up with a physician if necessary, but was not otherwise told to take any specific follow-up action.
The episode on February 19 was Isley’s second bought of costochondritis, the previous flare-up having occurred in April 2014. Then too, Isley visited the E.R. but he' did not miss any of his scheduled shifts and never informed anyone at the Shipyard that he had a medical condition. By contrast, on February 20, 2015, Isley claims that he called hi's union steward, Sean Harvey, and told him that he had been to the hospital “for my heart.” Resp. Ex. R at 131:16-17.. Similarly, Isley-claims that on February 23, his next scheduled day of work, he called his supervisor, Shawn James and told him that he would again be absent due to “heart issues.” Id.
Isley returned to work on February 24. On February 26, Sandy Galassco, a member of the Shipyard’s H.R. department, prepared a one-page “Notice of Impending Termination,” which stated that Isley had exceeded the allowable number of no-pay absences, listed the dates on which he had missed work in the previous 24 months, and directed him to contact H.R. or his supervisor if he believed the information on the form was incorrect.
At the February 27 meeting, Isley claims that he told Meixsell that he had gone to the E.R. because of a heart condition. Meixsell disputes this account, and claims that Isley told her that he went to the hospital because he had the flu. Meix-sell and Isley agree, however, that a central topic of discussion during the meeting was Isley’s 32-hour balance of “personal time”—paid leave that he could have applied to excuse his absences on thel9th and 23rd by calling into an H.R. hotline before missing work on those dates. As Isley recalled, “[Harvey] let Marion [Meix-sell] know, he [(Isley)] has enough [personal time],, could you just take the days off that, because I [ (Harvey) ] need him, he’s a good worker.” Def. Ex. R at 146:14-17. Meixsell apparently found that Isley’s balance of personal time weighed against granting him a second chance, concluding, in effect, that Isley’s termination was a problem of his own making since “he could have used 16 hours [of personal time] to save his job and chose not to use the time.” Resp. Ex. M. She therefore informed him of his discharge, effective immediately.
Isley’s union appealed his termination by filing a grievance and requesting a “third step” hearing. That hearing was held on March 12, before Michael Gianto-maso, the Shipyard’s V.P. of H.R. As Gian-tomaso explained, at third step hearings, the Shipyard and the union each present their side of the story “and then I make my decision within five business days in writing. If the union doesn’t like my deci
Isley attended the third step hearing and was also represented by three union members:
Dave Gaillard, James Hall, and Fred Chamberlain. Meixsell, representing the Shipyard, reiterated her view that Isley’s firing was warranted because he exceeded his ten-absence limit and could have, .but did not, cover his absences using'his accumulated personal time. According to Gian-tomaso, Isley responded by claiming he didn’t “know how to call out personal time.’ And I asked him again, “You don’t? You’ve never called out personal time?’ He said ‘No, I never did, I don’t know how.’ ” Id. at 45:3-7. Giantomaso claims that he and Chamberlain then reviewed Isley’s time records and found that he had in fact used personal time on several other occasions, leading Giantomaso to conclude that Isley “provided false information and lied to me”—grounds for termination under the CBA.
Giantomaso issued his decision on March 20 in a letter that he sent to various Shipyard officials and to the attendees at the third step hearing, including Isley’s union representatives. In that letter, Giantomaso explained that during the hearing, “Mr. Isley stated [he didn’t] know how to use personal time,” which led Giantomaso to “personally check[]” the Shipyard’s time-sheet records where he “found that Mr. Isley used personal time on 6 different occasions.” Resp. Ex. 0. According to Giantomaso, “[t]his prove[d].. .that Mr. Isley knew how to use the personal time and he decided not to.” Id. “As a result” Giantomaso concluded, “I am sustaining the discharge and denying the grievance.” Id. The union elected not to challenge Giantomaso’s decision by submitting Is-ley’s grievance to arbitration, and Isley’s termination because final.
Isley then initiated the current suit, arguing that the Shipyard violated the ADA, the Pennsylvania Human Resources Act (PHRA), and FMLA when it refused to excuse his absences on February 19 and 23. The Shipyard now moves for summary judgment. For the reasons below, that motion will be granted.
II. STANDARD
The well-established standard for summary judgment is governed by Fed. R. Civ. P. 56(a), as amplified by Celotex Corp. v. Catrett,
III. DISCUSSION
A. Isley’s ADA Claims
The ADA forbids covered employers from discriminating against disabled individuals. Prohibited discrimination includes retaliation against an employee who, in good faith, requests an accommo
1. Discrimination
“Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiffs disabilities.” Id. “In other words, an employer can unlawfully ‘discriminate’ within the meaning of the -ADA in' two different ways...: (1) if the employer takes adverse action against a qualified individual with a disability and that decision was motivated by the individual’s actual-disability or the employer’s belief that the individual had a disability (i.e. disparate treatment); or (2) if the employer fails to make reasonable accommodations for that individual.” Fuoco v. Lehigh Univ.,
Because “the ADA. ..and Title VIL . .serve the same purpose—to prohibit discrimination in employment against members of certain classes[—]... the methods and manner of proof under one statute.. .inform the standards under the others as well.” Wishkin v. Potter,
Isley argues that this is a direct evidence case because the Shipyard “counted... ADA protected absences” on February 19 and 23 against him, thereby demonstrating its discriminatory ■ bias with clarity sufficient to render unnecessary McDonnell Douglas’s burden-shifting approach. Resp. at 3. This argument assumes too much. As discussed 'at length below, Isley has not established that he notified the Shipyard of his disability, or that he requested an accommodation. Because Isley has not shown that the Shipyard knew he \vas disabled, its decision to fire him shortly after he missed work for health-related reasons is, at' best, circumstantial evidence of discriminatory bias. This case is therefore properly analyzed under McDonnell Douglas ⅛ burden-shifting framework.
a. Disparate Treatment
“[I]n order for a plaintiff to establish a prima facie case of discrimination under the ADA, the plaintiff must show: (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Taylor v. Phoenixville Sch. Dist.,
The ADA defines disability as “a physical or mental impairment that substantially limits one or more major'life activities ...; a record of such an impairment; or being regarded as having such an impairment.” 42 U.S.'C. § 12102. Major life activities, “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. Unhappy with the Supreme Court’s narrow interpretation of the ADA’s protections, Congress amended the statute in 2009, directing courts to construe “disability” “in favor of broad coverage of individuals.. .to the maximum extent permitted by the terms of this chapter.” Id. Consistent -with Congress’s instruction, the ■ statute’s implementing regulations provide:
The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
29 C.F.R. § 1630.2.
Under this relaxed standard, a reasonable jury could find that Isley’s costochon-dritis qualified as a disability under the ADA.
The Shipyard concedes for the purposes of this motion that Isley was qualified for his position—the second element of his prima facie case.
Isley falters, however, at the third element, which requires a causal connection between his termination and his real or perceived disability. Isley maintains that the record supports an inference of discrimination because Meixsell fired him shortly after learning that he sought medical treatment for a heart condition, but this theory of liability based on temporal proximity does not withstand scrutiny.
Meixsell testified that she decided to fire Isley on February 26 when she received the Notification of Approaching Termination that was signed by Isley, James, and Harvey, and which indicated that Isley had accumulated twelve no-pay absences over a twenty four-month period—grounds for discharge under the CBA. Resp. Ex. S at 33:13-24; Resp. Ex. N. Consistent with her testimony, also on February 26, Meix-sell electronically signed and dated Isley’s discharge paperwork in' preparation for a meeting with Isley and Harvey, scheduled for the following morning, February 27. Resp. Ex. D; Resp. Ex. S at 54:14-24; 55:1-5. Although Isley claims that, by February 23, he had told Harvey and James that he had visited the emergency room because of a heart condition, Isley does not claim, and nothing in the record indicates, that either man relayed this information to Meixsell or anyone else in H.R. Resp. Ex. S at 88: 5-20. And while Isley maintains that he met with Meixsell and told her about his E.R. visit, by his own recollection, that discussion took place on the very day he was let go: February- 27. Def. Ex. R at 165: 18-22. Thus, even assuming that Isley explained the reason for his last two no-pay absences to Meixsell before Meix-sell told him, in so many words, “you’re fired,” it’s clear that Isley’s purported disclosure of his heart issues came after Meixsell initiated the discharge process upon receiving a written notice of Isley’s fireable offense.. This undisputed evidence of chronology defeats Isley’s contention that Meixsell decided to fire him because she learned of his condition.
Isley next argues that discrimination can be inferred from Meixsell’s decision not to excuse his February 19, and 23 absences after learning of the reason for those absences.
Isley also asserts that Giantomaso’s decision to uphold his termination following his third step hearing provides an independent basis for his disparate treatment claim. Unlike Meixsell, who initiated Is-ley’s termination before she learned of his health problems, Giantomaso upheld Is-ley’s firing shortly after learning for the first time that he visited the E.R. for a heart condition. Assuming for the sake of argument that this sequence of events supports an inference of disability discrimination, under McDonnell Douglas, the burden shifts to the Shipyard to • assert a legitimate basis for upholding Isley’s termination. The shipyard carries this burden, arguing that Giantomaso upheld'Is-ley’s termination because Isley falsely claimed during his third step hearing that he did not know how to use personal time to cover his absences. Because the CBA allows the Shipyard to summarily fire employees who lie at a third step hearing, the Shipyard, contends that Giantomaso’s decision to uphold Isley’s termination was warranted, irrespective of Isley’s medical condition. In response, Isley maintains that he never''told Giantomaso that he did not know how to use personal time—a dispute of- fact he contends is sufficient to defeat summary judgment. I disagree.
In employment discrimination cases like this, the Third Circuit recognizes the so-called “honest belief rule.” Under this doctrine, “the critical inquiry.. .is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” Capps v. Mondelez Global, LLC,
b. Failure to Accommodate
As noted above, under the ADA, an employer may also be-liable for discrimination if it does not make reasonable accommodations -for the known disability of an otherwise qualified individual. Consistent with this -duty:
Once an individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability-
29 C.F.R. Pt. 1630, App. § 1680.9. Isley argues that Meixsell and Giantomaso failed in their- obligation to engage' with him in this interactive process. To succeed on his claim, he must show “1) the [Shipyard] knew about [his] disability;' 2) [he] requested accommodations or assistance for his... disability; 3) the [Shipyard] did not make a good faith effort to assist [him] in seeking accommodations; and 4) [he] could have been reasonably accommodated but for the [Shipyard’s] lack of good faith.” Conneen v. MBNA Am. Bank, N.A.,
“Employers cannot assume employees are disabled .and need accommodations,” and, therefore, employees carry the initial burden of providing notice and asking for help. Taylor,
Isley argues that his references to his heart, coupled with his visit to the E.R. on February 19, gave sufficient notice to the Shipyard to trigger the interactive process. Under the circumstances of this case, I disagree. Before February 19, the Shipyard had no knowledge that Isley suffered from health problems that interfered with his work. Nor had the Shipyard observed a decline . in. Isley’s job performance that might have suggested that something was wrong. Thus, absent a more thorough explanation from Isley, the Shipyard had no reason to assume that Isley’s visit to the E.R. was for anything other than a onetime bought of chest pain-—something that, by itself, would not constitute a “disability.” Cf. id. at 313-14 (employee adequately notified employer of mental disability where employer observed employee’s psychotic behavior at work and knew of earlier psychiatric commitment). Because Isley did not provide the Shipyard with adequate notice of his disability, his failure to accommodate-claim must be rejected.
In sum, the ADA contemplates a partnership between employees and employers. Because Isley did not hold up his end of the bargain by notifying the Shipyard of his disability and requesting an accommodation, his claim based on the Shipyard’s failure to engage in the interactive process must be rejected. The Shipyard’s motion for summary judgment will. therefore be granted with respect to Isley’s “failure to accommodate” claim.
2. Retaliation
Apart from his ADA discrimination claim, Isley alleges that the' Shipyard retaliated against him for requesting that his absences be excused. Like his discrimination claim, Isley’s retaliation claim is properly analyzed under McDonnell Douglas’s burden-shifting framework. Krouse v. American Sterilizer Co.,
B. Isley’s FMLA Claims
Congress passed the. FMLA to “balance the demands of the workplace with the needs of families,” and “to entitle employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(1). The statute “requires certain employers to provide théir employees with up to twelve weeks of leave in the event that the employee has a serious medical condition. An employer faces liability under the Act and its implementing regulations if it interferes with a right that the Act guarantees, or if it retaliates against an employee for invoking the Act’s protections.” Budhun v. Reading Hosp. & Med. Ctr.,
1. Interference
“In order to assert an FMLA interference-claim, an employee only needs to show [ (1) ] that he was entitled to benefits under the FMLA and [(2)] that he was denied them.” Id. at 252 (quoting Callison v. City of Phila.,
“Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility.” 29 C.F.R. § 825.114. While the regulations do not define “overnight stay,” the Third Circuit has held that the term means a visit lasting “for a substantial period of time from one calendar day to the next calendar' day as measured by the individual’s time of admission”—not his or her arrival time—“and time of discharge.” Bonkowski v. Oberg Indus., Inc.,
Under the FMLA, the term “continuing treatment” encompasses, in relevant part, conditions resulting in “incapacity and treatment,” 29 C.F.R. § 825.115(a), and “chronic conditions,” § 825.115(c). For an absence to qualify under the former provision, the claimant must suffer “a period of incapacity of more than three consecutive, full calendar days” and must also receive, when deemed “necessary” by a healthcare provider, “(1) [treatment two or more times within 30 days of the first day of incapacity” or “(2) treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.” Absences are attributable to a “chronic condition” when they arise from a health problem that, among other things, “(1) [requires'periodic visits (defined as at least twice.a year) for treatment by a health care provider...; [and] (2) [cjontinues over an extended period of time (including recurring episodes of a single underlying condition).”
Isley’s February 19 visit to the E.R. does not fall into either category of “continuing treatment.” Beginning with “incapacity and treatment,” while Isley has a triable claim that he was incapacitated for more than three days,
The regulatory provisions governing “chronic conditions” are no more accommodating of Isley’s February 19 trip to the E.R. Isley sought treatment for costochon-dritis once in 2014 and once in 2015. Thus, at the time of his absences in February 2015, his condition had not “réquired periodic visits (defined as at least twice a
' Because Isley’s absences on February 19 and 23 were not attributable to a serious condition, he had no right to FMLA leave on those days and therefore cannot bring a claim for interference with his FMLA rights.'This is so-even if, as Isley claims, the Shipyard was obligated, and failed, to investigate whether his absences might have been covered under the FMLA.
Isley does not establish the requisite element of prejudice because he does not explain how his FMLA claim would' have benefitted from additional action by the Shipyard. Nor could he, because any investigation by the shipyard into Isley’s claim would have uncovered that his February 19 and 23 absences were not caused by a “serious condition” within the meaning of the statute. In short, because Isley was not entitled to FMLA leave, his interference claim must fail.
2. Retaliation
“FMLA retaliation claims are rooted in. the FMLA regulations. They prohibit an employer from ‘discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.’ ” Budhun,
According to the Shipyard, Isley’s failure to establish a serious condition dooms his retaliation. claim just. as it doomed his interference claim. Whether entitlement to FMLA leave is actually an element of a retaliation claim appears to be an open question of law.
IV. CONCLUSION
For the foregoing reasons, the Shipyard’s motion for summary judgment will be granted.
Notes
. Both James and Harvey deny that Isley ever told them that he had a heart condition. Resp. Ex. T at 29:6-11; Ex. W at 16:24; 17:1-2.
. Although his note cleared him for work on February 23, Isley claims that he was still suffering from chest pain on that day and required additional time for recuperation.
. Both Harvey and James testified that they did not discuss Isley’s absences on the 19th and 23rd with anyone else at the Shipyard. Resp. Ex. T at 12: 6-17; Resp. Ex. W at 16-17. Isley does not allege otherwise and nothing in the record suggests that anyone in Human Resources was aware of Isley’s E.R. visit, or the reason for it, until February 27.
.Isley never disputed the information contained on the Notice of Termination form. Resp. Ex. Rat 107: 2-9.
. Isley does not dispute that lying at a third step hearing is a fireable offense under the CBA.
. Isley also brings closely related claims under the PHRA, “The PHRA is basically the same as the ADA in relevant respects and Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts,” Rinehimer v. Cemcolift,
. The Pennsylvania Legislature has not adopted Congress's expanded definition of disability and courts therefore evaluate PHRA claims under the ADA’s pre-2008 definitions of disability. Rubano v. Farrell Area Sch. Dist.,
. The Shipyard twice cites Sutton v. United Air Lines, Inc., 527 U.S. 471, 491,
In most instances, an individual with a disability will be able to establish coverage by showing substantial limitation of a major life activity other than working; impairments that- substantially limit a person’s ability to wprk usually substantially limit one or more other major life activities.
29 C.F.R, Pt. 1630, App. § 1630.2. Because Isley’s costochondritis appears to have interfered, with his ability to sleep and breath, his failure to show that he was unable to perform a broad class of jobs is not fatal to his ADA claim.
. In addition to this disparate treatment claim, Isley also brings a "failure to accom-mpdate" claim based on Meixsell’s refusal to excuse his absences. That claim is discussed below.
. Further undercutting Isley’s case that he was singled out for harsh treatment because he had a serious medical condition, it appears that the Shipyard excused non-FMLA ab
. Harvey was not the only shop steward responsible for representing union members at grievance hearings. Indeed, Isley was represented at his third step hearing by another steward, Fred Chamberlain. Harvey’s tally therefore should not be considered a complete estimate of the number of employees that the Shipyard fired for violating its attendance policy.
. The Shipyard’s argument that Isley’s retaliation claim fails because "mere temporal proximity.', .is wholly insufficient to establish pretext,” misstates the law. To the contrary, the Third Circuit has held that "[w]hen temporal proximity.. .is unduly suggestive, this is sufficient standing alone to... defeat summary judgment.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
. The Shipyard contends that Isley was not incapacitated for three full consecutive days— an argument that is plainly contrary to the evidence in this case. Isley produced a doctor’s note dated February 20, which directed him to refrain from working until February 23—a period of three days (the 20th, 21st, and 22nd). Viewing the facts in the light most favorable to Isley, this note, standing alone, can be read as evidence that he was incapacitated for the requisite period. Moreover, Isley testified that he suffered from acute discomfort, beginning on the afternoon of February 19, and continuing through February 23. Under Third Circuit law, Isley’s’ lay testimony can be taken in combination with his doctor’s note when calculating his period of incapacity. See Schaar v. Lehigh Valley Health Servs., Inc.,
. By way of comparison, Isley’s “Discharge Summary” following a visit to the E.R. in May 2016 instructed him to see his primary care physician and a named cardiologist within one week. Resp. Ex. AA at *2.
. Isley also visited the E.R. twice in 2016, more than a year after he was terminated, On both occasions he was diagnosed with costo-chondritis'and on his second visit he was also found to have an enlarged heart. However, because the operative timeframe for determining, whether a condition qualifies as a serious condition is the time that leave is . taken, Navarro v. Pfizer Corp.,
. Like the ADA, the FMLA's implementing regulations place an initial burden on the employee to provide their employer with notice of the need for FMLA leave. 29 C.F.R. §§ 825.302, 825.303. Where the employee - provides information that allows the employer to "reasonably determine whether the FMLA may apply," § 825.303(b), the. burden shifts and the employer "should inquire further of the employee., .to ascertain whether leave.is potentially FMLA-qualifying,” § 825.301. Furthermore, ”[w]hen an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, -the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances," § 825.300(b)(1). I assume for the sake of argument that Isley provided the Shipyard with sufficient notice of his request for FMLA leave to trigger its duty to "inquire further.”
.The only court to have squarely addressed this issue is the Northern District of Iowa. In Johnson v. Dollar General, Judge Mark Bennett issued a thorough gnd well-reasoned opinion holding that an FMLA-" ‘retaliation’ claim does not require proof that the plaintiff