Jаmie 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.
No. 11-3419.
United States Court of Appeals, Third Circuit.
Argued on June 19, 2012. Filed: Aug. 3, 2012.
691 F.3d 294
John J. Myers, Esq., [Argued], Andrew T. Quesnelle, Esq., Eckert, Seamans, Cherin & Mellott LLC, Pittsburgh, PA, for Appellees.
Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges.
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 Medical Leave Act of 1993 (FMLA),
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.
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 coworkers complained that Lichtenstein was
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 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 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
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 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 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
On January 7th, Lidey returned from vacation. On her first morning back, Lidey forwarded Harris a copy of 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 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 schedulе 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 (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),
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.”
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.”
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.”
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.
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.
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
Although some courts have recently questioned the viability of mixed-motive claims under the FMLA in the wake of Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (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 to her retaliation claim, she readily survives summary judgment under the more taxing McDonnell Douglas standard. Accordingly, we proceed under McDonnell Douglas 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 Douglas 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) tеrmination, 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 Douglas, 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
1. Notice13
To invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to take leave.
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
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
(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.”
Finally, in considering the adequacy of Lichtenstein‘s notice, we find it instructive to compare the information she conveyed with the guidance provided in
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 shе 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 necessary.
(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
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 “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 tо 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.”
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
For the reasons stated, a genuine factual dispute exists about whether Lichtenstein
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 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.
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 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
For all of the abovementioned reasons, we believe Lichtenstein has presented sufficient evidence to establish a 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 nоw 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 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 termi-
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 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 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
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. Id. 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 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
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
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. 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 vаcate 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.
AMBRO, Circuit Judge, Dissenting.
Pursuant to the Family and Medical Leave Act of 1993 (“FMLA“),
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 Fed.Appx. 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.”
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 304.
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
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. 304, 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
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, 978-81 (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,”
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.
FRANKLIN VAN ANTWERPEN
UNITED STATES CIRCUIT JUDGE