RESTREPO, Circuit Judge.
Frederick Capps challenges the District Court's Order granting summary judgment in favor of Capps' former employer,
For the reasons that follow, we affirm the District Court's Order granting summary judgment in favor of Mondelez. In so doing, we hold that an employer's honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim. We also confirm that, under certain circumstances, a request for intermittent FMLA leave may also constitute a request for a reasonable accommodation under the ADA, but under the circumstances in this particular case, even assuming, arguendo, such a request was made, there is a lack of evidence that Mondelez failed to provide any requested accommodation.
Mondelez's predecessor, Nabisco, hired Capps in November 1989. At all relevant times to this action, Capps held the position of mixer, which required him to operate a mixing machine that makes dough.
Mondelez has maintained a policy that an employee is entitled to FMLA leave for a "serious health condition of the employee that makes the employee unable to perform one or more of the essential functions of his/her position." (JA 451.) An employee may use intermittent FMLA leave when it is a "medical necessity," and the employee must provide notice of the leave "as soon as practicable." (JA 451-52.)
Any employee who wishes to take FMLA leave due to his own serious health condition must provide the company with a certification from his health care provider. Company policy also provides: "As with all communications with the Company, the submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination." (JA 452.)
Mondelez also has a policy entitled "Dishonest Acts on the Part of Employees" ("Dishonest Acts Policy"), which is considered a "Major Rule." (JA 449, 457.) Violations of "Major Rules" are considered inexcusable offenses that "will result in immediate suspension pending investigation, which could lead to termination." (JA 449, 457.) Mondelez's Dishonest Acts Policy includes the warning that "
Capps suffers with Avascular Necrosis ("AVN"), which was described by Aron Guttin, D.O., Capps' treating physician, as "a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells." (JA 312.) As a result of the AVN, Capps developed arthritis in both hips which necessitated bilateral hip replacement in or about 2003.
He has experienced severe pain at times in the pelvic region, thighs and hips, sometimes
The certification supporting Capps' approved FMLA leave covering January 24, 2013 through July 23, 2013 was completed by Dr. Guttin who certified that Capps was unable to perform certain job functions as a result of his condition. Where the certification form required Dr. Guttin to "identify the job functions the employee is unable to perform," Dr. Guttin responded that Capps "requires full bedrest during exacerbations." (JA 334.)
Dr. Guttin further stated that "[t]his year [the episodes] have been more severe [and] more frequent than years prior" and that Capps "experiences temporary periods of inflammation that are debilitating and require anti-inflammatory medication and rest." (JA 334, 335.) Mondelez's third-party FMLA administrator, WorkCare, approved this request under the FMLA, and the approval noted that Capps "may need to be off work 1-2 times every month for a duration of up to 14 days per episode for incapacity and treatment appointments." (JA 342.)
On Monday, February 11 and Tuesday, February 12, 2013, Capps took FMLA leave due to leg pain, and he returned to work for a full shift on Wednesday, February 13, 2013. Capps was scheduled to work on Thursday, February 14, 2013, but he called Mondelez's phone system and the FMLA message line on February 14th stating he would be late to work because of leg pain. Later that day, he again called the FMLA message line and Mondelez's phone system stating that he would be taking a full day of FMLA leave since the pain had not subsided. Dr. Guttin also signed Capps' FMLA certification form dated February 14th.
Capps testified at his deposition that his wife was out of the country that week on a business trip and that because he didn't "know how to cook," he had to "call out or go out" for his meals. (JA 279.) Capps further testified that at approximately 6:30 p.m. on the 14th he drove to a local pub, which was not more than one and a half miles from his home, to "get something to eat" (JA 279). According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half (2½) to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home.
Capps testified that after leaving the pub, at or around 9:00 p.m. he was stopped by police. The Bensalem Township police drove Capps to the hospital for a blood test, which resulted in a reading of a blood alcohol concentration level of 0.339% — more than four times the legal limit in Pennsylvania. Capps testified that he was released from jail early the next morning on Friday, February 15, 2013. He further testified that he woke up on the 15th "probably about 10, 11 o'clock" and his "legs were bothering [him] again." (JA 46.) He stated that he "just hung around the house, just wasn't feeling good" and "took some Aleve again." (JA 46.)
Capps was scheduled to begin his shift that Friday afternoon at 1 p.m. on February 15th. However, on the 15th, he called Mondelez's phone system and the FMLA message line indicating that he would be using FMLA leave due to leg pain.
On August 7, 2013, Capps pled guilty to the charge of Driving Under the Influence of Alcohol ("DUI"), and he served 72 hours in jail immediately following the guilty plea hearing. His sentence also included probation, costs and fines, and suspension of his driver's license.
In early 2014, William Oxenford, a Human Resources ("HR") Manager at Mondelez, became aware of Capps' DUI conviction and sentence by finding in Oxenford's company mailbox a newspaper article reporting the same. Oxenford asked Barbara McAvoy, an employee in the HR department, and Nancy Pace, administrative assistant to the plant manager, to investigate Capps' attendance record to determine if Capps had any absences during the time frame of Capps' arrest and conviction.
Although neither Oxenford nor McAvoy were attorneys, and they did not understand the meaning of all the docket entries, upon reviewing the criminal court docket related to Capps' conviction, Oxenford and McAvoy noticed that Capps' arrest date and "court dates" appeared to coincide with days on which Capps had taken FMLA leave. For instance, Capps' arrest date, February 14, 2013, was a day on which Capps had called out on FMLA leave. He also called out on FMLA leave the next day. In addition, he called out of work using FMLA leave on other dates that appeared on the court docket: June 4, 2013 ("Appearance and Waiver of Arraignment") and October 15, 2013 ("ARD Court").
Oxenford and McAvoy confronted Capps and his union representative with this information at a meeting on February 26, 2014. In response, Capps promised to provide documentation to support his FMLA leave on the days in question, and Capps was suspended pending further investigation.
Upon being suspended, Capps submitted to Mondelez an undated letter from Dr. Guttin confirming the aforementioned dates Capps had taken FMLA leave during the week of February 11, 2013 due to his "hip pathology" (JA 407). The undated letter further stated that Capps had taken FMLA leave on June 3 and 4, 2013 due to his hip pathology, and also that he had a court date on June 7, 2013 but "waived his right for that appearance." (JA 407.) Oxenford was suspicious of the undated letter which included legal information from Dr. Guttin regarding scheduled court dates and certain legal rights that Capps had waived. Mondelez subsequently received a nearly identical letter dated February 27, 2014 from Dr. Guttin.
Capps also submitted to Mondelez an unsigned first page only of a letter dated May 31, 2013 addressed to Capps from his attorney in the DUI matter confirming some of the dates related to his DUI action. On April 21, 2014, nearly two months after he was suspended and promised to provide documentation (and one month after receiving notice of his termination), Capps provided a complete copy of that 2-page letter. After Capps had been terminated, he presented a second letter from his DUI attorney dated March 26, 2014 confirming that Capps attended court proceedings on May 9, 2013 and August 7, 2013 and that Capps was incarcerated from August 7, 2013 to August 10, 2013.
Following Capps' termination, Mondelez retained the services of an investigator. The investigator reported on April 25, 2014 that a detective from the police department indicated that Capps had been released from custody from his DUI arrest at 6:00 a.m. on the morning following the arrest.
Capps completed a Grievance Form on March 27, 2014 claiming he was "unlawfully terminated." (JA 405.) Mondelez offered Capps reinstatement without back pay on April 28, 2014, and Capps rejected the offer of reinstatement on May 13, 2014.
Capps initiated this lawsuit on July 18, 2014. He filed his Second Amended Complaint on October 16, 2014 alleging claims of interference and retaliation in violation of the FMLA, violations of the ADA, and violations of the Pennsylvania Human Relations Act ("PHRA").
By Memorandum and Order filed November 24, 2015, the District Court granted Mondelez's summary judgment motion and denied Capps' cross-motion. See Capps v. Mondelez Global LLC, 147 F.Supp.3d 327, 330 (E.D. Pa. 2015). The District Court granted summary judgment on Capps' FMLA interference claim due to Capps' inability to show that he was denied a benefit to which he was entitled under the FMLA. Id. at 335. The District Court granted summary judgment on Capps' FMLA retaliation claim because the record evidence showed that Mondelez based its decision to terminate Capps' employment on an honest belief that Capps misused that leave.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291.
Our review of the District Court's grant of summary judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853, 859 (3d Cir. 2014). A moving party is entitled to summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable inferences must be drawn in favor of the nonmoving party. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir. 2009).
The FMLA provides, in relevant part, that "eligible employees are entitled to 12 workweeks of leave during any 12-month period due to an employee's own serious health condition." Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014) (citing 29 U.S.C. § 2612(a)(1)). Under the FMLA, when an employee returns from such leave, the employer must restore the employee to the same or equivalent position held by the employee when the leave commenced, as well as restore the employee with equivalent benefits and conditions of employment. Id. (citing § 2614(a)).
We have previously explained:
Id. (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012) (citations omitted)) (footnotes added). In addition, 29 C.F.R. § 825.220(c) prohibits employers "from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights." Here, Capps has alleged claims of FMLA interference and retaliation.
Capps claims that Mondelez discriminated against him in violation of the FMLA by terminating his employment in retaliation for his use of FMLA leave. Since "FMLA retaliation claims require proof of the employer's retaliatory intent, courts have assessed these claims through the lens of employment discrimination law." Lichtenstein, 691 F.3d at 302. Accordingly, a claim such as Capps' FMLA retaliation claim is assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Ross, 755 F.3d at 193 (citations omitted).
Here, the District Court found that, "when viewing the facts in a light most favorable to Capps, he is unable to sustain an FMLA retaliation claim." See Capps, 147 F.Supp.3d at 336. First, the District Court found that Capps cannot establish a prima facie case because "[h]e cannot demonstrate that the proper use of his FMLA leave — a protected activity — is causally connected to his termination."
As the District Court found, even assuming, arguendo, that Capps could establish a prima facie case of FMLA retaliation, Mondelez met its burden of demonstrating a legitimate, nondiscriminatory justification for Capps' discharge with evidence that Capps was terminated for his misuse of FMLA leave and dishonesty surrounding the leave in violation of Mondelez's policies. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). "FMLA retaliation claims require proof of the employer's
In Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012), where the evidence demonstrated that the employer held an honest suspicion that the employee was misusing his FMLA leave at the time it made the decision to terminate the employee, the Seventh Circuit found that the evidence could not support a conclusion that the employer intentionally discriminated against the employee for taking FMLA leave. Id. at 827. In affirming the District Court's Order granting summary judgment in favor of the employer, the Seventh Circuit in Scruggs pointed out that the employee requested and was granted leave, took his approved leave, and returned to work the following day, and it was not until after the employer had received evidence of misconduct that the employee was terminated. Id.; see also Arrigo v. Link, 836 F.3d 787, 796 (7th Cir. 2016) ("[T]he question is not whether [the employer] was correct to believe that [the employee] performed poorly, but rather whether he honestly believed that she did.").
Similarly, in Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), the Eighth Circuit affirmed the District Court's Order granting summary judgment in favor of an employer on an employee's FMLA discrimination claim on the basis of evidence of the employer's honest belief that the employee violated company policy and the lack of evidence showing that the employer's explanation was pretextual. Id. at 1007. The Eighth Circuit pointed out that this honest belief was a legitimate, nondiscriminatory reason for the action and that "[t]o prove that the employer's explanation was false, the employee must show the employer did not truly believe that the employee violated company rules." Id. at 1003. In explaining the so-called "honest belief rule," the appellate court in Pulczinski stated that the "critical inquiry in discrimination cases like this one 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." Id. at 1002. The Eighth Circuit further explained: "[The employee] must present sufficient evidence that the employer acted with an intent to discriminate, not merely that the reason stated by the employer was incorrect. Taken alone, that the employer's belief turns out to be wrong is not enough to prove discrimination."
In Medley v. Polk Co., 260 F.3d 1202 (10th Cir. 2001), an employee claimed that her employer fired her for taking FMLA
Here, as described above, Mondelez provided evidence clearly supporting its legitimate, non-discriminatory explanation for why Capps was discharged — its honest belief that Capps misused his FMLA leave and was otherwise dishonest in violation of Mondelez's policies. Following Capps' AVN diagnosis in 2002 and his bilateral hip replacements in 2004, Capps was continuously recertified for FMLA leave during his tenure at Mondelez approximately every six months through early 2014. There is no indication that any of Capps' requests for FMLA leave were denied or that he was prohibited from returning to work after taking his approved FMLA leave. Indeed, Capps returned to the same position with the same benefits each time he returned from taking his leave, and he continued to take intermittent FMLA leave without issue through the remainder of 2013. Moreover, there is no indication of any animus on the part of Mondelez related to Capps taking FMLA leave prior to receiving notice of Capps' arrest and conviction.
It was not until Oxenford received the newspaper article in 2014 alerting him to Capps' DUI arrest and conviction, that Oxenford began to investigate Capps' attendance record to determine if any of his FMLA leave coincided with the dates related to his arrest and conviction. Further, the undisputed evidence indicates that when Oxenford and McAvoy reviewed the criminal court docket related to Capps'
To make a claim of interference under the FMLA, a plaintiff must establish:
Ross, 755 F.3d at 191-92 (citation omitted); see also Sommer v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006) (observing that an interference claim requires an employee to show that he was not only entitled to FMLA benefits but also that he was denied those benefits). Unlike an FMLA retaliation claim, "[a]n interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA." Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir. 2005); see Scruggs, 688 F.3d at 825 (quoting Shaffer v. Am. Med. Ass'n, 662 F.3d 439, 443 (7th Cir. 2011)) ("An [FMLA] interference claim does not require an employee to prove discriminatory intent on the part of the employer; rather, such a claim `requires only proof that the employer denied the employee his or her entitlements under the Act.'").
Here, the District Court found that Capps' FMLA interference claim failed because Capps was unable to satisfy the fifth requirement — that he was denied a benefit to which he was entitled under the FMLA. See Capps, 147 F.Supp.3d at 335. In support of its decision, the District Court cited Ross, where we found that "[b]ecause [the employee] received all of the benefits to which he was entitled by taking leave and then being reinstated to the same position from which he left, and thus cannot satisfy the fifth prong of the interference analysis, he fails to make a prima facie showing of interference." See Ross, 755 F.3d at 192. Capps returned from his FMLA leave, including the February 14 and 15, 2013 FMLA leave, to the same position and same benefits. (JA 13, 48-49.)
Finally, Capps claimed in the District Court that Mondelez failed to accommodate his disability as required under the ADA.
On appeal, Capps devotes only one paragraph to his ADA failure-to-accommodate claim. Specifically, he argues that "[r]equests for intermittent leave may be protected by the ADA" and that a request for FMLA leave does not bar an ADA retaliation claim. See Appellant Br. 29-30 (emphasis added).
Mondelez responds that "Capps' one-paragraph placeholder [in his brief] should be construed as a waiver of any argument related to the ADA." See Appellee Br. 27. Furthermore, Mondelez contends that the District Court properly concluded that Capps' request for FMLA leave, standing alone, could not serve as an accommodation under the ADA. It is unnecessary to address whether Capps waived his ADA claim on appeal, since, even assuming the claim was not waived, it is clearly without merit.
We recognize that a request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable
A plaintiff bringing an ADA failure-to-accommodate claim must establish: "(1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated." Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006);
For the foregoing reasons, we affirm the District Court's Order granting summary judgment in favor of Mondelez.