STEWART DALZELL, District Judge.
Plaintiff Kathleen Hofferica ("Hofferica") brings suit against defendant St. Mary Medical Center ("St. Mary"), asserting claims under the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101, et seq.; the Pennsylvania Human Relations Act (the "PHRA"), 43 Pa. Stat. Ann. § 951, et seq.; and the Family and Medical Leave Act (the "FMLA" or the "Act"), 29 U.S.C. § 2601, et seq. Hofferica held a position as a nurse with St. Mary, and in November of 2008 St. Mary allegedly terminated Hofferica from this position after she took leave to undergo treatment for Ménière's disease. Hofferica's claims arise out of those events.
St. Mary filed a motion to dismiss Hofferica's complaint in part pursuant to Fed. R.Civ.P. 12(b)(6), as to which Hofferica filed a response in opposition, and St.
In the end, we agree with St. Mary that Hofferica's failure to allege that she could return to her nursing position means that she has not stated a claim for FMLA interference based on defendant's refusal to reinstate her to that position. We will consequently dismiss Hofferica's interference claim inasmuch as it is based on St. Mary's failure to reinstate her.
With respect to Hofferica's interference claim (based on St. Mary's alleged failure to provide individualized notice) and her retaliation claim, we find ourself in an unusual position: St. Mary did not explain why we should dismiss these claims in its motion to dismiss, only asserting the insufficiency of these claims in its reply. These arguments were prompted by Hofferica's own asseverations in her response, where she sought to explain why her notice interference and retaliation claims are sufficient. This is thus different from a situation where a moving party raises an argument in support of its motion for the first time in its reply, and the opposing party has had no opportunity to address this argument by the time the Court rules on the motion. In such a situation (which we see more commonly), we simply ignore the tardy argument. See, e.g., United States v. Martin, 454 F.Supp.2d 278, 281 n. 3 (E.D.Pa.2006) (Robreno, J.) ("A reply brief is intended only to provide an opportunity to respond to the arguments raised in the response brief; it is not intended as a forum to raise new issues."); Bishop v. Sam's East, Inc., 2009 WL 1795316, at *5 (E.D.Pa.2009) (Surrick, J.) (ruling that argument raised for the first time in reply had been waived).
Our own examination of the complaint and the applicable case law suggests, moreover, that Hofferica has not succeeded in stating a claim for FMLA interference based on lack of notice (though we conclude that she has stated a claim for retaliation under the FMLA). Nonetheless, we find that Hofferica may be prejudiced by her inability to respond specifically to the reasoning and caselaw that St. Mary raises in its reply. We will thus consider the parties' arguments as to the sufficiency of Hofferica's notice interference and retaliation claims, explain why the law suggests that Hofferica has failed to state the former claim but succeeded in stating the latter claim, and give Hofferica leave to brief us on why the former claim should not be dismissed.
When we consider a motion to dismiss under Rule 12(b)(6), we must "`accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom.'" Ordonez v. Yost, 289 Fed.Appx. 553, 554 (3d Cir.2008) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
While Hofferica has attached no exhibits to her complaint, she does rely—explicitly or implicitly—on several documents. Because Hofferica refers to St. Mary's epistolary approval of her leave request in April of 2008, Pl.'s Compl. ¶ 14, she has relied upon that letter. See Ex. A to Def.'s Mem. in Support of Mot. to Dismiss ("Def.'s Mem."). Because Hofferica discusses her receipt of a letter from St. Mary in November of 2008 terminating her employment, Pl.'s Compl. ¶ 22, she has relied upon that November 7, 2008 letter St. Mary's sent to her. See Ex. C to Def.'s Mem.
St. Mary also seeks to introduce an undated "NOTICE TO COLLEAGUES OF FAMILY MEDICAL LEAVE RIGHTS/OBLIGATIONS" that it allegedly provided to Hofferica along with the April 22, 2008 letter, see Ex. H to Def.'s Reply in Support of Mot. to Dismiss ("Def.'s Reply"). Since Hofferica has not had the opportunity to respond to St. Mary's presentation of this document (and hence to object to it), we cannot characterize the document as "undisputedly authentic," Pension Benefit Guar. Corp., 998 F.2d at 1196, and will therefore decline to consider it in ruling on St. Mary's motion. St. Mary also attaches a number of documents to its reply that concern prior periods of leave that Hofferica took from her position, Exs. A-G to Def.'s Reply, without even attempting to explain why such documents "form the basis of a claim" under Brown, 128 Fed.Appx. at 913 (quotation marks omitted). We will not consider those documents, either.
Finally, St. Mary has attached to its motion an October 8, 2008 letter in which St. Mary informed Hofferica of the number of hours remaining in her intermittent leave of absence balance, Ex. B to Def.'s Mem., suggesting that Hofferica relied on this letter in her complaint because she referred to the November 7, 2008 letter, which in turn referenced the October 8, 2008 letter. Def.'s Mem. at 4 n. 2. We reject this suggestion, having found no authority that suggests that a court, in ruling on a motion to dismiss, should consider any document referred to in any other admissible document. Such a rule would take us far afield from the rationale identified in In re Burlington Coat Factory, i.e., ensuring that plaintiffs do not misrepresent documents to which they refer in their complaints. 114 F.3d at 1426.
Hofferica alleges that she is a forty-two-year-old citizen of the Commonwealth of
According to Hofferica, she was employed by St. Mary from June 5, 2006 until November 12, 2008. Id. ¶ 11. St. Mary initially hired Hofferica as a "Staff RN," and she maintained a satisfactory job performance rating in this position at all times. Id. ¶ 12. In March of 2008, however, Hofferica was diagnosed with Ménière's disease,
Shortly after St. Mary approved Hofferica's leave request, Charles Kunkle, the emergency room director at St. Mary, allegedly told Hofferica that he questioned her ability to do her job because of her disability. Pl.'s Compl. ¶ 15. Hofferica asserts, however, that "[n]otwithstanding [her] disability, at all times relevant hereto she has been able to perform all job duties required by her position of employment." Id. Nonetheless, in September of 2008, Hofferica's physician informed her that she had to undergo a series of surgeries as treatment for her condition, leading her to commence leave pursuant to the approval St. Mary had granted in April of that year. Id. ¶ 17.
After Hofferica began her leave, she or her husband called Marie Magee, the assistant nurse manager at St. Mary, to provide updates each week on Hofferica's progress and the anticipated date on which she would return to work, though Hofferica alleges that Magee "often failed" to return these calls. Id. ¶ 18. In particular, Hofferica claims that she called Magee on November 4, 2008 to explain that her physician needed to approve her anticipated return-to-work date of November 6, 2008 and that her physician might postpone that date. Id. ¶ 19. Magee allegedly did not return her call. Id.
On November 5, 2008, Hofferica got a note from her physician that stated that she was medically cleared to return to work on November 13 of that year, and the next day Hofferica called to inform Magee of this clearance and request "a brief extension of her medical leave until said date as a reasonable accommodation for her disability." Id. ¶¶ 20-21. Hofferica states that Magee did not return her call. Id. ¶ 21. On November 12, 2008, Hofferica allegedly received a November 7, 2008 letter from St. Mary that informed her that her position with St. Mary had been terminated because her medical leave of absence under the FMLA had expired. Id. ¶ 22.
The Supreme Court has explained that "only a complaint that states a plausible claim for relief survives a motion to dismiss" pursuant to Rule 12(b)(6), leading a
As our Court of Appeals has noted, "Congress enacted the FMLA in 1993 to accommodate `the important societal interest in assisting families, by establishing a minimum labor standard for leave,'" Sommer v. The Vanguard Group, 461 F.3d 397, 398-99 (3d Cir.2006) (quoting S.Rep. No. 103-3 at 4, 1993 U.S.C.C.A.N. 3, at 6-7). The Act itself specifies that among its purposes are "to balance the demands of the workplace with the needs of families," "to entitle employees to take reasonable leave for medical reasons," and "to accomplish the purposes described [above] in a manner that accommodates the legitimate interests of employers." 29 U.S.C. § 2601(b)(1)-(3). To bring about these ends, the FMLA provides that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period" for certain medical conditions, including "a serious health condition that makes the employee unable to perform the functions of the position of such employee." § 2612(a)(1). The Act defines eligibility
As Judge Cercone noted in Sinacole v. iGate Capital, 2006 WL 3759744, at *5 (W.D.Pa.2006) (citations omitted),
Substantive rights under the FMLA are protected by 29 U.S.C. § 2615(a)(1), making it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 C.F.R. § 825.220(b) elaborates that "[a]ny violations of the Act or of these regulations constitute interfering with, restraining, or denying the exercise of rights provided by the Act."
As for retaliation, the FMLA makes it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). Its regulations
Judge Simandle has explained that "[t]o prevail on an FMLA interference claim, the employee merely needs to show she was entitled to benefits under the FMLA and that she was denied them." Thurston v. Cherry Hill Triplex, 2008 U.S. Dist. LEXIS 60936, at *11 (D.N.J.2008). In her complaint, Hofferica claims that she was denied three types of benefits under the FMLA: reinstatement, individualized notice, and responses to her reasonable inquiries. As we have noted, in its motion to dismiss St. Mary addresses only the first of these entitlements.
In her response to the motion to dismiss, Hofferica asserts three arguments in defense of her interference claims: that (1) she was entitled to reinstatement under the FMLA; (2) in any case, St. Mary should be equitably estopped from claiming that she exceeded her FMLA leave; and (3) she has successfully stated an interference claim based on St. Mary's failure to provide individualized notice. In its reply, St. Mary contests each of these arguments.
Hofferica asserts that St. Mary violated the FMLA by "terminating Plaintiff's position and failing to maintain the Plaintiff's position upon Plaintiff's actual or ostensibly approved date for return from leave of absence and/or to provide Plaintiff a comparable position." Pl.'s Compl. ¶ 29. In its motion to dismiss, St. Mary asserts that "[w]hen the Medical Center terminated Hofferica's employment, her FMLA leave had expired over two (2) weeks before and she still had not returned, and she had not been medically cleared to return, to work." Def.'s Mem. at 8. Since "the FMLA does not prohibit an employer from terminating an employee-on-leave who fails to return to work after her FMLA leave expires," id. at 2 (emphasis omitted), St. Mary urges that it "did not violate the FMLA." Id. at 8. In response, Hofferica merely reiterates that "Plaintiff Hofferica embarked upon an FMLA leave in or about September of 2008 and was not reinstated to her position when she wished to return from FMLA leave. This is sufficient to establish a valid FMLA interference claim." Pl.'s Br. at 12 (citation omitted).
It is true that "[a]fter an eligible employee returns from an FMLA leave, the employee is entitled to be reinstated to his or her former position, or an equivalent one." Conoshenti, 364 F.3d at 141 (citing 29 U.S.C. § 2614(a)(1)). However, "once an employee exceeds the duration of her protected leave, the employer is not obligated by FMLA to keep open the position or to reinstate the employee upon her return." Keim v. Nat'l R.R. Passenger Corp., 2007 WL 2155656, at *6 (E.D.Pa. 2007) (Davis, J.). Thus, "[a]n employer may not terminate an employee because he or she has taken the leave permitted by the statute. If the employee is not able to return to work after twelve weeks, however, the employer may terminate the employee." Katekovich v. Team Rent A Car, Inc., 36 Fed.Appx. 688, 690 (3d Cir.2002).
As we have already noted, "[t]o prevail on an FMLA interference claim, the employee merely needs to show she was entitled to benefits under the FMLA and that she was denied them." Thurston, 2008 U.S. Dist. LEXIS 60936, at *11. Hofferica was not entitled to reinstatement, however, unless her FMLA leave had not yet expired—and Hofferica does not allege in her complaint that she had such leave remaining. Hofferica thus has not stated a claim for FMLA interference on the basis that St. Mary failed to reinstate her to her position.
Because Hofferica's equitable estoppel argument—by which she attempts to rescue her FMLA claim for reinstatement interference—requires us to consider questions of notice and reliance that are naturally considered in the context of Hofferica's notice interference claim, we will turn next to this claim.
Hofferica alleges in her complaint that "[t]he actions of the Defendant, in (1) failing to sufficiently notify Plaintiff of her right to return to her position and/or a substantially similar position upon return
At the time of the violations that Hofferica alleges, FMLA's implementing regulations required employers to provide employees with four types of notice: general, eligibility, rights and obligations, and designation. Hofferica's claims concern only the latter two types of notice.
29 C.F.R. § 825.301 (2008) formerly provided that
Section 825.301 also required that
And § 825.208(a)(2008) stated that "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section."
Based on these regulations, we identify four problems with Hofferica's claim concerning St. Mary's alleged failure to provide individualized notice. First, Hofferica has not alleged facts in her complaint to support some of the deficiencies with St. Mary's notice that she asserts, and supports other asserted deficiencies only with conclusory allegations. With respect to notice, Hofferica's complaint alleges concretely only that "[v]ia letter dated April 22, 2008, Defendant specifically informed Plaintiff that her leave request was `approved from February 5, 2008 through February 4, 2009.'" Pl.'s Compl. ¶ 14. The complaint also alleges, conclusorily, that St. Mary violated the FMLA by "(1) failing to sufficiently notify Plaintiff of her right to return to her position and/or a substantially similar position upon return from FMLA leave, [and] (2) failing to sufficiently inform the Plaintiff that she would lose her position if she did not return to work before February of 2009." Id. ¶ 29. The complaint thus makes no mention of any failure to provide notice as to the extent of Hofferica's leave, any preconditions for her return to work, and whether she was required to furnish medical documentation prior to returning to work. Moreover, the complaint alleges no concrete facts suggesting that St. Mary failed to notify Hofferica as to her right to reinstatement and the consequences if she failed to return to work before February of 2009.
While we understand the difficulty a plaintiff may have in alleging concrete facts that suggest a defendant did not do something, in this context Hofferica could at least have identified all the communications she allegedly received from St. Mary pertaining to her leave, or even attached those communications to her complaint. Hofferica instead proffers almost no detail as to those communications. Based on her
Second, we have discovered no provision in the prior regulations requiring that an employer notify an employee of the duration of his or her unused FMLA leave, explain the conditions under which the employee may return to his or her position, or warn the employee that upon expiration of his or her FMLA leave the employee loses the entitlement to be reinstated. This contrasts in part with the new regulations, under which an "employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement." 29 C.F.R. § 825.300(d)(6) (2011). See also 73 Fed.Reg. 67,998 (Nov. 17, 2008) ("The Department ... has significantly modified the process for designating FMLA leave to ensure that employees receive timely notification both that leave for a particular condition will be FMLA-protected and the number of hours that will be counted against their FMLA leave entitlement.").
As for St. Mary's alleged failure to explain whether Hofferica "was required to furnish medical documentation prior to returning to work," Pl.'s Br. at 11, the regulations at the time provided only that an employer must notify an employee of "any requirement for the employee to present a fitness-for-duty certificate to be restored to employment." 29 C.F.R. § 825.301(b)(1)(v) (2008) (emphasis added). Since Hofferica has not alleged that St. Mary imposed such a requirement, St. Mary would not have violated the regulations by failing to point out the absence of such a requirement to Hofferica.
Third, even if Hofferica concretely alleged in her complaint that St. Mary failed to provide her with the specified types of notice, and even if the prior regulations implementing the FMLA required these types of notice, Hofferica has not alleged facts that suggest St. Mary was obligated to provide Hofferica with any notice at the time in question. As we have already noted, the then-applicable set of regulations obliged employers to provide employees with notice of expectations and obligations "no less often than the first time in each six-month period that an employee gives notice of the need for FMLA leave (if FMLA leave is taken during the six-month period)." 29 C.F.R. § 825.301(c) (2008). Admittedly, this provision is less than pellucid.
Section 825.200(e) (2008) further provided that "[i]f an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period, the option that provides the most beneficial outcome for the employee will be used." We can thus deduce that the "6-month periods" referred to in § 825.301(c) are those that result when the "12-month period" described in § 825.200(b) is divided in half.
To state a claim for interference against St. Mary based on its failure to provide individualized notice under § 825.301(c) (2008), Hofferica thus needed to allege three facts: (1) St. Mary either chose one of the methods described in § 825.200(b) for calculating twelve-month periods—and hence a method for calculating six-month periods—or failed to make such a choice, so that § 825.200(e) determined the method used; (2) Hofferica took FMLA leave within the applicable six-month period in which she gave notice of her need for FMLA leave; and (3) Hofferica had not already given notice of her need for leave earlier in the same period and received notice from St. Mary. Hofferica alleges none of these facts in her complaint.
Finally, even if we were to accept that St. Mary failed to provide the individualized notice the FMLA required, Hofferica has not alleged that she was prejudiced by this failure. It is well-settled in this Circuit that a plaintiff may only "show an interference with his right to leave under the FMLA, within the meaning of 29 U.S.C. § 2615(a)(1), if he is able to establish that this failure to advise [of his rights under the FMLA] rendered him unable to exercise that right in a meaningful way, thereby causing injury." Conoshenti, 364 F.3d at 143; see also Fogleman v. Greater Hazleton Health Alliance, 122 Fed.Appx. 581, 587 (3d Cir.2004) ("Conoshenti held that an employer's failure to advise could constitute a violation of one's FMLA rights, but only if the employee could show resulting prejudice."). As Judge Simandle explained in Thurston, 2008 U.S. Dist. LEXIS 60936, at *21 "if [an] employer actually violates the FMLA's individualized notice provisions by failing to inform [an] employee about the right[s] and obligations associated with FMLA leave, it is not an automatic bar to the employee's ability to bring a valid interference claim if the employee exceeds the twelve weeks of leave protected under the FMLA." Under such circumstances, the employee must "show prejudice ... [by] demonstrat[ing] that, had she been advised of her FMLA
Because Hofferica has not alleged that she could have performed the functions of her position at the time her FMLA leave expired, she has therefore not suggested in her complaint that any failure by St. Mary to provide her with notice prejudiced her by preventing her from exercising her right to reinstatement. She has also not alleged that her ability to exercise her rights under the FMLA was impaired in any other way by lack of notice.
It thus appears to us that Hofferica has failed to state a claim for FMLA interference based on St. Mary's alleged failure to provide notice. We will give Hofferica leave, however, to explain why her notice interference claim is actually sufficient before determining whether we will dismiss Count II to the extent that it asserts such a claim.
Finally, in an effort to rescue her interference claim based on St. Mary's failure to reinstate her, Hofferica explains that "[e]ven if the Court finds that Plaintiff Hofferica exceeded her protected leave and is therefore not entitled to reinstatement the Defendant's motion must be denied on the basis of equitable estoppel," since "the Defendant made a false representation to Plaintiff Hofferica regarding the extent of her leave." Pl.'s Br. at 12. In response, St. Mary suggests that "the Amended Complaint does not allege facts to plausibly suggest that Plaintiff relied to her detriment on the alleged misrepresentation," Def.'s Reply at 5-6, and that "any alleged reliance could not possibly be `reasonable,' because the April 22 letter specifically references that she has a finite number of FMLA hours remaining." Id. at 6.
As our Court of Appeals has explained, "[i]n order to succeed on a claim of equitable estoppel, [plaintiff] had to prove that she detrimentally relied on representations made by her supervisors and that these representations caused her not to return to work." Baker v. Hunter Douglas, 270 Fed.Appx. 159, 164 (3d Cir. 2008). Though Hofferica suggests that in the April 22, 2008 letter from St. Mary to Hofferica, "the Defendant informed her that she was preapproved for FMLA leave until February of 2009," Pl.'s Br. at 12, we have already noted that this letter also explained that "[f]or your reference as of today (April 22, 2008) you have 241 hours of Family Medical Leave." Ex. A to Def.'s Mem. (emphasis in original).
Under similar circumstances,
Hofferica's equitable estoppel claim also founders on the second prong of Baker, under which Hofferica must show that St. Mary's representations caused her not to return to work. Rescuing an FMLA reinstatement interference claim by means of an equitable estoppel theory requires similar factual allegations as those needed to state an FMLA notice interference claim. In both situations, the plaintiff must allege concrete facts that, if proven, would demonstrate that but for the misrepresentation or lack of notice she would have been able to return to work before the expiration of her FMLA leave. As already noted, Hofferica has not alleged that she could perform her duties at the time her FMLA leave expired, and has thus not claimed that St. Mary's representations caused her not to return to her nursing position. We will thus reject her estoppel argument and dismiss Count II of her complaint to the extent that it asserts a claim for interference based on a failure to reinstate.
In her complaint, Hofferica asserts that "[t]he actions of the Defendant as set forth herein, including, inter alia, terminating Plaintiff's position of employment, was retaliatory and in retribution for Plaintiff's legitimate exercise of her rights under the FMLA." Pl.'s Compl. ¶ 33. Hofferica then further explains in her response that
Pl.'s Br. at 8. St. Mary replies to Hofferica's argument as to its letter by noting that "[i]n order to provide Plaintiff an explanation of the basis for her termination, the Medical Center necessarily had to reference her FMLA leave and the fact that her twelve weeks of leave had expired." Def.'s Reply at 10. St. Mary further explains that "temporal proximity cannot logically create an inference of retaliatory intent with respect to a discharge following expiration of FMLA leave," id. at 10-11, and that Hofferica's factual allegations "do not plausibly allege an ongoing `pattern of antagonism' sufficient to create an inference of FMLA retaliatory intent." Id. at 12. After examining the complaint we conclude that while neither the termination letter nor the alleged temporal proximity supports Hofferica's retaliation claim, she has alleged sufficient antagonism for her retaliation claim to survive a motion to dismiss.
The FMLA's implementing regulations provide—and did so at the time of the
Thurston, 2008 U.S. Dist. LEXIS 60936, at *29-30 (internal quotation marks, citations, and brackets omitted). Under either framework, then, the initial burden rests on the plaintiff to provide either direct evidence of causation or evidence that establishes a prima facie case of retaliation.
Hofferica attempts to allege causation in three ways: first, that St. Mary's November 7, 2008 letter terminating her position provides direct evidence of causation; second, that temporal proximity between her leave-taking and termination provides indirect evidence of causation; and third, that a pattern of antagonism provides such indirect evidence. Pl.'s Br. at 8.
We may begin by rejecting the proposition that St. Mary's letter provides direct evidence of retaliatory causation. As our Court of Appeals has explained, to constitute direct evidence, "the evidence must be such that it demonstrates that the `decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.'" Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir.1997) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)). The letter on which Hofferica relies to show direct causation, however, states merely that: "Please be advised that your Family and Medical Leave of Absence has expired and we are unable to hold your position with St. Mary Medical Center." Ex. C to Def.'s Mem. Far from adverting to an illegitimate ground on which Hofferica was discharged, the letter refers only to a legitimate ground: Hofferica's failure to return to her position following the expiration of her FMLA leave. The November 7, 2008 letter does not provide direct evidence of causation.
In contrast, the second and third routes to causation that Hofferica plots are both indirect. It is certainly true that "[a] causal link between protected activity and adverse action may be inferred from an unusually suggestive temporal proximity
Finally, we come to the "ongoing antagonism" that Hofferica identifies in the allegations of her complaint. Pl.'s Br. at 8. Our Court of Appeals has explained that a causal link between protected activity and adverse action may be inferred from "an intervening pattern of antagonism following the protected conduct." Peace-Wickham, 409 Fed.Appx. at 522. Hofferica's complaint alleges that St. Mary displayed antagonism toward her in two ways. First, shortly after Hofferica applied for leave under the FMLA, "Charles Kunkle ... Emergency Room Director, stated to the Plaintiff that he `questioned [the Plaintiff's] ability to do [her] job' because of her disability." Pl.'s Compl. ¶ 15 (brackets in original). Because this alleged antagonism was explicitly linked by its source to Hofferica's disability, not her taking of FMLA leave, and since in any case these comments pre-dated Hofferica's taking of leave under the FMLA, we find it implausible that such a statement could demonstrate an indirect causal link between Hofferica's leave-taking and her termination.
Second, Hofferica alleges that the assistant nurse manager at St. Mary refused to return weekly calls from Hofferica and her husband pertaining to her leave. Pl.'s Compl. ¶¶ 18-21. While an employer's failure to return an employee's phone calls does not constitute overt antagonism, it certainly suggests an antagonistic attitude toward the employee, particularly where—as here—such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee. Bearing in mind that when analyzing whether a plaintiff has established causation in a retaliation case, a court should ask whether "the proffered evidence, looked at as a whole, may suffice to raise the inference" of causation, Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000) (quotation marks omitted), we conclude that if Hofferica can prove her allegations as to St. Mary's refusal to return her calls while she was on leave, a reasonable factfinder could conclude that this refusal demonstrates sufficient antagonism to establish a prima facie case for retaliation under McDonnell Douglas. Hofferica has thus stated a claim for FMLA retaliation.
