Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

DONALD SMITH, ) Civil Action No. 2:24-CV-1765-NBF-CBB

)

)

Plaintiff, ) Senior United States District Judge

) Nora Barry Fischer

vs. )

) United States Magistrate Judge

GIANT EAGLE, INC., ) Christopher B. Brown

)

)

Defendant, )

REPORT AND RECOMMENDATION

ON MOTION TO DISMISS ECF NO. 141

Christopher B. Brown, United States Magistrate Judge

I. Recommendation

Plaintiff Donald Smith brings this civil action against his former employer

Giant Eagle, Inc., d/b/a OK Grocery (“Giant Eagle”) alleging Giant Eagle violated

his rights under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et

seq., (“FMLA”) after it terminated him for missing work to care for his teenage son

after his son’s mother was hospitalized. ECF No. 13. Smith brings claims against

Giant Eagle for FMLA interference and retaliation.2 Id. at ¶¶ 58-80. This court has

subject matter jurisdiction under 28 U.S.C. § 1331.

1 This matter has been referred to the undersigned United States Magistrate Judge for a

Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).

2 At Count I, Smith also brought claims against Giant Eagle for association discrimination in

violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Pennsylvania

Human Relations Act, 43 P.S. §§ 951-963. ECF No. 13 at ¶¶ 43-57. In his Opposition, Smith

withdraws his claim against Giant Eagle under Count I. ECF No. 18 at 10-11. Accordingly, the

Court does not address Count I further.

Pending before the Court is Giant Eagle’s Motion to Dismiss Smith’s

Amended Complaint for failure to state a claim. ECF No. 14. The Motion is fully

briefed and ripe for consideration. ECF Nos. 14-15, 18-19.

For the following reasons, it is respectfully recommended that Giant Eagle’s

Motion to Dismiss be GRANTED as to Smith’s remaining claims, namely FMLA

interference and retaliation. It is also respectfully recommended that Smith be

given leave to amend his complaint to correct the deficiencies in pleading an FMLA-

qualifying reason for leave, should he be able to do so in good faith.

II. Report

a. Factual Background

The following allegations in the Amended Complaint are accepted as true

with all reasonable inferences drawn in the light most favorable to Smith. See

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 237 (3d Cir. 2008).

Plaintiff Smith worked at Giant Eagle as a Warehouse Selector from

November 21, 2021 – August 30, 2023. ECF No. 13 at ¶¶ 10, 34.

In July 2023, the mother of Smith’s son was hospitalized with a serious

medical and psychological condition leaving her unable to care for her teenage son.

Id. at ¶¶ 12-13, 15. Smith describes the mother as his “co-parent and partner in

raising their son.” Id. at ¶ 18. Smith called off work on July 23, 2023 to care for his

son during the mother’s hospitalization. Id. at ¶¶ 12, 14. Smith’s son was fourteen

years old and was “emotionally distressed and temporarily incapable of self-care

during the sudden loss of his primary caregiver due to the unexpected emergency.”

Id. at ¶ 15. Smith alleges his presence provided his son with emotional and

psychological support to stabilize him during the crisis and allowed the mother to

focus on her recovery without worrying about her son. Id. at ¶¶ 16-17.

Smith told Giant Eagle’s Building Supervisor Dean Kohanyi about the

hospitalization and his concern he would be disciplined for his absences. Id. at ¶ 22.

Kohanyi assured Smith that Giant Eagle would not discipline him for missing work

to care for his son. Id. at ¶ 23. Smith alleges he relied on Kohanyi’s assurances and

did not make other arrangements for childcare, and reasonably believed he could

return to work. Id. at ¶ 25. Smith alleges he would have benefited from

intermittent FMLA leave during this period, but Giant Eagle did not investigate his

FMLA eligibility, provide him with FMLA paperwork, nor offer him protected leave.

Id. at ¶¶ 19, 40.

Giant Eagle’s policy grants paid vacation days, unpaid personal days, and ten

unpaid call-off days. Id. at ¶ 20. At the time the child’s mother was hospitalized,

Smith had accumulated nine unpaid call-off days. Id. at ¶ 21. She remained in the

hospital for two weeks which caused Smith to exhaust his paid time off as well as

take an additional two unpaid call-off days to care for his son. Id. at ¶ 26. By doing

so it put him at eleven absences – or one day over Giant Eagle’s ten-day policy. Id.

at ¶¶ 26-27.

On August 15, 2023, Giant Eagle removed Smith from the work schedule. Id.

at ¶ 28. On August 22, 2023, Smith attended a meeting with the Union President

and two supervisors from Giant Eagle, where he mentioned that his supervisor,

Kohanyi, had assured him he would not be disciplined for his absences. Id. at ¶¶

29, 32. Smith also planned to ask about FMLA leave to cover his absences, but he

alleges prior to the meeting, someone instructed him not to discuss FMLA leave. Id.

at ¶¶ 30, 39. The Amended Complaint does not say who told him not to discuss

FMLA leave. Id.

Giant Eagle terminated Smith on August 30, 2023, citing the eleven absences

as the reason for his termination. Id. at ¶ 34.

b. Standard of Review - Motion to Dismiss for Failure to State a

Claim (Fed. R. Civ. P. 12(b)(6))

A Fed. R. Civ. P. 12(b)(6) motion challenges whether the complaint states an

actual claim. A complaint must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and can be

dismissed for “failure to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). A defendant has the burden to show a complaint fails to state a

claim. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

To survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A complaint must be dismissed if it merely alleges

entitlement to relief without supporting facts. Fowler v. UPMC Shadyside, 578

F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at

the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of’ the necessary element.’” Phillips,

515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). The court need not accept as

true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v.

Great Bay Casino Corp., 232 F.3d 173, 183–84 (3d Cir. 2000), nor a plaintiff's “bald

assertions or legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902,

906 (3d Cir. 1997). The court's role is limited to determining if a plaintiff is entitled

to offer evidence in support of their claims – not if they will ultimately prevail.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds).

c. Discussion

Smith brings FMLA interference (Count II) and retaliation (Count III) claims

against Giant Eagle. ECF No. 13 at ¶¶ 58-80. In sum, he alleges Giant Eagle

denied him FMLA leave and terminated him in retaliation. Id.

As set forth in detail below, the Amended Complaint does not adequately

allege the threshold, common element of FMLA interference and retaliation claims

– that Smith was entitled to FMLA leave. See Snyder v. Concordia Priv. Care, No.

2:20-CV-01478, 2021 WL 3493512, at *3 (W.D. Pa. July 8, 2021), report and

recommendation adopted, No. 2:20-CV-01478, 2021 WL 3492974 (W.D. Pa. Aug. 9,

2021). Because Smith does not adequately allege he was entitled to FMLA-

qualifying leave, it is respectfully recommended that Giant Eagle’s Motion to

Dismiss his FMLA interference and retaliation claims be granted.

i. FMLA Interference

There are two types of FMLA interference claims: denial of benefits claims

and failure to advise claims. Conway v. ConnectOne Bank, No. 21-1141, 2022 WL

1024616, at *3 (3d Cir. Apr. 6, 2022). Smith brings both types of interference claims

against Giant Eagle in Count II, alleging Giant Eagle interfered with his rights

under the FMLA by (1) failing to offer him FMLA leave; and (2) failing to

investigate his eligibility and provide him with FMLA paperwork. ECF No. 13 at

¶¶ 40-41, 66-67. These are discussed in turn.

1. FMLA Interference – Denial of Benefits

Smith alleges Giant Eagle interfered with his rights by denying him FMLA

leave to care for his son while his son’s mother was hospitalized. ECF No. 13 at ¶¶

66-70.3

To bring an FMLA interference claim based on the denial of benefits, an

employee must show: “(1) he was an eligible employee under the FMLA; (2) his

employer was subject to the FMLA's requirements; (3) he was entitled to FMLA

leave; (4) he gave notice to [his] employer of her intention to take FMLA leave; and

(5) he was denied benefits to which [he] was entitled under the FMLA.” Soutner v.

Penn State Health, 841 F. App'x 409, 413 (3d Cir. 2021) (citing Ross v. Gilhuly, 755

F.3d 185, 191-92 (3d Cir. 2014)).

Giant Eagle does not dispute that Smith was an eligible employee or that it

was subject to the FMLA’s requirements under prongs one and two. ECF No. 15 at

5. Giant Eagle, however, argues Smith cannot satisfy the remaining three prongs

3 Smith also alleges Giant Eagle interfered with his FMLA leave and retaliated against him by

instructing him to remain silent about FMLA during the August 23, 2023 meeting with the

supervisors and union president. ECF No. 13 at ¶¶ 30, 68. Smith elaborates further in his

Opposition, and argues a representative from Giant Eagle told Smith not to ask about FMLA leave

in the August 23, 2023 meeting. ECF No. 18 at 8-9. However, as Giant Eagle points out, ECF No.

19 at 4-5, the Amended Complaint does not allege who told him not to discuss FMLA leave and does

not allege the person was from Giant Eagle. See ECF No. 13 at ¶ 30 (“Mr. Smith intended to inquire

about using FMLA leave to remedy his absences, but was specifically instructed not to discuss the

FMLA prior to the meeting”); Id. at ¶ 68 (“Further, when Mr. Smith attended the union meeting to

discuss his termination, he was instructed to not discuss his need for FMLA leave”). Regardless, as

Smith’s FMLA interference and retaliation claims otherwise fail at the outset because he has not

alleged an FMLA-qualifying reason for leave, the Court need not address this further.

because he was not entitled to FMLA leave in the first instance. Id. Giant Eagle is

correct.

As stated above, a key element of an interference claim is the employee was

entitled to FMLA leave. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401

(3d Cir. 2007) (“In order to assert a claim of interference, an employee must show

that he was entitled to benefits under the FMLA”) (citing Callison v. City of

Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005)). See also Blake v. Alstom

Transportation Inc., 20-13603, 2022 WL 17250561, at *3 (D.N.J. Nov. 28, 2022)

(“Plaintiff must show that he was entitled to FMLA-qualifying leave”) (citing

Rhoads v. F.D.I.C., 257 F.3d 373, 384 (4th Cir. 2001) (“[T]he district court correctly

required [plaintiff] to prove that she was afflicted with an FMLA-qualifying

condition, because otherwise she did not have any right under the Act with which

her employer could have interfered.”)); Rynders v. Williams, 650 F.3d 1188, 1195

(8th Cir. 2011) (“FMLA benefits are contingent upon the employee having “a serious

health condition.”).

The FMLA allows eligible employees to take leave in five circumstances:

(A) the birth and care of the employee’s newborn child;

(B) the placement and care of a child following adoption or foster care

assignment;

(C) to care for an employee’s spouse, child, or parent who has a serious

health condition;

(D) due to an employee’s own serious health condition; or

(E) due to a “qualifying exigency” related to military service of the

employee’s spouse, child, or parent.

29 U.S.C. § 2612(a)(1).

The FMLA defines a “serious health condition” as “illness, injury,

impairment, or physical or mental condition” involving either “(a) inpatient care in

a hospital, hospice, or residential medical care facility; or (B) continuing treatment

by a healthcare provider.” 29 U.S.C.A. § 2611(11)(A)-(B). The definition of a serious

health condition “is broad and intended to cover various types of physical and

mental conditions.” Bonkowski v. Oberg Indus., Inc., 787 F.3d 190 (3d Cir. 2015).

In the Amended Complaint Smith alleges he invoked his right to FMLA when

he called off work due to his son’s mother’s serious health condition and his need to

care for his child in her absence. ECF No. 13 at ¶ 66. Smith alleges he needed

FMLA leave to care for his son who was “emotionally distressed and temporarily

incapable of self-care” due to the emergency related to his son’s mother. Id. at ¶¶

13-18. He also alleges providing childcare for his son helped the mother recover

because she was able to focus on her health. Id. at ¶ 17. Notably, as alleged,

neither the hospitalization of the son’s mother, nor childcare for the son are

qualifying circumstances covered under the FMLA.

First, while the Amended Complaint adequately alleges that the son’s mother

had a serious health condition because she was hospitalized for two weeks, 29

U.S.C.A. § 2611(11)(A), Smith does not allege that he and his son’s mother were

married. This is relevant as it pertains to a serious medical injury of someone other

than the employee, and the FMLA only allows leave for when the employee’s

spouse, child, or parent is the person with the injury. 29 U.S.C. § 2612(a)(1). The

FMLA defines “spouse” to mean “a husband or wife, as the case may be” but does

not include within its scope the mother of one’s child. 29 U.S.C.A. § 2611(13). See

also Henson v. U.S. Foodservice, Inc., 588 F. App'x 121, 125 (3d Cir. 2014) (“The

FMLA grants certain employees the right to take up to 12 weeks off during a 12–

month period in order to care for the spouse . . . of the employee, if such spouse . . .

has a serious health condition”). The Amended Complaint exclusively refers to her

as the “mother of Mr. Smith’s son” and “co-parent and partner in raising their son,”

and does not mention any type of partnership or marriage. ECF No. 13 at ¶¶ 13,

18. As the Amended Complaint does not allege Smith and the mother of his son

were spouses, his right to FMLA leave cannot be predicated on her serious medical

condition. See also Duncan v. Kearfott Corp., No. CV 22-5740, 2025 WL 1752322, at

*4 (D.N.J. June 25, 2025) (dismissing FMLA claims at summary judgment stage

because plaintiff was not entitled to FMLA leave to care for her brother, as caring

for siblings is outside the scope of the FMLA).4

Regardless, Smith cannot predicate his FMLA leave on caring for his son

either, as Smith does not adequately allege that his son had a “serious medical

condition.”5 See Scott v. UPMC, No. 09CV1475, 2010 WL 3156130, at *3 (W.D. Pa.

Aug. 10, 2010), aff'd, 435 F. App'x 104 (3d Cir. 2011) (“In proving that [the plaintiff]

4 In the event it was adequately alleged that the mother was, in fact, Smith’s spouse, it does

not appear in the Amended Complaint that Smith alleges either explicitly or implicitly that he

needed FMLA leave to care for her. Rather, it is only alleged that he needed leave to care for his son.

5 Smith does not refer to his son’s emotional state as a “serious medical condition” in the

Amended Complaint at all. See generally, ECF No. 13. While a plaintiff is not required to use magic

words, Smith does allege that the mother of the child had a “serious medical condition,” so it appears

Smith is drawing a distinction between their conditions as well. Id. at ¶ 13.

had a ‘right to FMLA benefits,’ it is essential that plaintiff demonstrate a ‘serious

health condition’ as defined in the FMLA) (citing Schaar v. Lehigh Valley Health

Serv., Inc., 598 F.3d 156, 158 (3d Cir.2010)).

In the Amended Complaint, Smith alleges he needed to provide care for his

son because the son was “emotionally distressed and temporarily incapable of self-

care” after his mother was hospitalized and needed Smith’s help to be “stabilized.”

ECF No. 13 at ¶¶ 15-16. These allegations do not meet either criterion of a “serious

health condition.” 29 U.S.C.A. § 2611(11)(A)-(B). First, Smith does not allege his

son required any type of inpatient care. 29 U.S.C.A. § 2611(11)(A). See also, ECF

No. 13. Second, Smith does not allege that his son required continuing treatment

by a healthcare provider. 29 U.S.C.A. § 2611(11)(B). See also, ECF No. 13. Under

the FMLA, to constitute continuing treatment, the son must have received either

treatment two or more times by a healthcare provider during the first thirty days of

incapacity or treatment by a healthcare provider that resulted in a regimen of

continuing treatment. 29 CFR § 825.115(a)(1)-(2). Additionally, the son could be

qualified under the “continuing treatment” standard if he had a chronic or

permanent condition. 29 CFR § 825.115(a)(3)-(4). See also Darst v. Interstate

Brands Corp., 512 F.3d 903, 911 (7th Cir. 2008) (“Under the FMLA, however,

‘treatment’ is a defined term that does not include actions such as calling to make

an appointment. Treatment would include examinations to determine if a serious

health condition exists and evaluation of the condition”). Smith alleges neither.

The Amended Complaint is devoid of any mention of continuing treatment for

his son. Without more detail, Smith’s allegations as to his son’s emotional distress

are conclusory and do not sufficiently allege a serious health condition. See

Honauer v. N. Jersey Truck Ctr., 19-CV-8947, 2020 WL 5422824, at *5 (D.N.J. Sept.

10, 2020) (granting motion to dismiss FMLA claim because complaint was devoid of

allegations of serious health condition, and plaintiff only included details about

overnight hospital stay, prescriptions, therapy, doctors’ visits, and tests in the

opposition brief); Hefflefinger v. Superpetz, LLC, 1:08-CV-1125, 2008 WL 4616789,

at *3 (M.D. Pa. Oct. 16, 2008) (dismissing FMLA claim at the motion to dismiss

stage because a “serious health condition is not alleged in the complaint”). Without

more, the FMLA claim is deficient.

Additionally, he alleges that the son’s issue is “temporary,” which also does

not meet the threshold for a “serious medical condition” because the FMLA “is not

intended to cover short-term conditions for which treatment and recovery are very

brief.” Scott, 2010 WL 3156130, at *4 (citing S.Rep. No. 103–3 at 30 (1993),

reprinted in 1993 U.S.C.C.A.N. 3, at pp. 30–31). See also Wilson v. Aerotek, Inc.,

No. 1:14-CV-578, 2018 WL 11414960, at *7, n. 4 (M.D. Pa. Mar. 8, 2018), report and

recommendation adopted, No. 1:14-CV-00578, 2018 WL 11415267 (M.D. Pa. Aug.

31, 2018) (saying at summary judgment it “is not difficult to appreciate that

Wilson's mother was grieving and struggling in the days leading up to and following

her husband's death, but it is difficult to discern from the record whether there is in

fact evidence that would qualify her as suffering from a ‘serious health condition’”)

(dicta); DeLeon v. Teamsters Loc. 802, LLC, No. 20-CV-24, 2021 WL 1193191, at *14

(E.D.N.Y. Mar. 29, 2021) (“[A]lthough the complaint specifically alleges that

DeLeon's mother has ‘serious medical conditions,’ that allegation is entirely

conclusory and must be disregarded upon this motion to dismiss”).

As Smith’s Amended Complaint cannot meet this threshold issue of a

qualifying reason for FMLA leave, the Court does not address the remaining factors

of an FMLA interference claim. Therefore, the Court respectfully recommends that

Giant Eagle’s Motion to Dismiss Smith’s FMLA interference claim as it relates to a

denial of benefits be GRANTED. However, given that it is possible Smith could

sufficiently allege an FMLA-qualifying reason, it is also respectfully recommended

that Smith be given leave to amend his complaint to cure these deficiencies if he can

do so in good faith.

2. FMLA Interference – Failure to Advise

Smith next alleges that Giant Eagle was put on notice of facts, namely that

he needed leave to care for his son while the mother was hospitalized, which

suggested he was entitled and/or eligible for FMLA leave. ECF No. 13 at ¶ 40.

According to Smith, Giant Eagle failed to follow FMLA regulations and provide him

with the required eligibility notice under § 825.300(b)(2), the rights and

responsibilities notice under § 825.300(c)(1), and the designation notice under §

825.300(d)(1) which all make up the FMLA interference claim. Id.; ECF No. 18 at

6-8. Giant Eagle argues in opposition that the employers’ notice requirements are

predicated “on an actual request for FMLA leave,” which Smith did not make as he

requested time off “due to the hospitalization of his son’s mother.” ECF No. 19 at 4

(quoting ECF No. 13 at ¶ 75). As with his other FMLA claim, since Smith does not

adequately allege in his Amended Complaint that he requested leave for an FMLA-

qualifying reason, it is respectfully recommended Giant Eagle’s motion to dismiss

his failure to advise claim be GRANTED.

To establish a failure-to-advise claim, the employee must show: (1) he was

entitled to FMLA benefits; (2) the employer interfered with them; and (3) the

employee was prejudiced by the failure to advise. Morgenfruh v. Larson Design

Grp., Inc., No. 4:18-CV-00021, 2019 WL 4511711, at *6 (M.D. Pa. Sept. 19, 2019),

aff'd, 826 F. App'x 141 (3d Cir. 2020).6 An employee is prejudiced when his

employer's failure to advise makes him unable to exercise his FMLA rights in a

“meaningful way, thereby causing injury.” Conoshenti v. Pub. Serv. Elec. & Gas

Co., 364 F.3d 135, 143 (3d Cir. 2004).

In failure to advise claims, when, as here, a plaintiff is “not entitled to FMLA

leave, his interference claim must fail.” Isley v. Aker Philadelphia Shipyard, Inc.,

275 F. Supp. 3d 620, 634 (E.D. Pa. 2017). See also Jones v. Metro. Water

Reclamation Dist. of Greater Chicago, No. 17 C 5879, 2018 WL 150852, at *5 (N.D.

Ill. Mar. 27, 2018) (“[T]here can be no interference if [plaintiff] had no right to

FMLA leave.”) (citing Darst, 512 F.3d at 910). See also Brown v. Pitt Ohio Exp.,

LLC, No. 12 C 2420, 2013 WL 5221483, at *4 (N.D. Ill. Sept. 16, 2013) (interference

6 Smith attempts to argue that violations of the FMLA notice requirements are strict liability.

ECF No. 18 at 8. However, “an FMLA interference claim is not a strict liability statute.” Sterrett v.

Giant Eagle, Inc., No. CV 14-235, 2016 WL 3166268, at *9 (W.D. Pa. Apr. 27, 2016), report and

recommendation adopted, No. CV 14-235, 2016 WL 3136905 (W.D. Pa. June 6, 2016), aff'd, 681 F.

App'x 145 (3d Cir. 2017) (quoting Delp v. Rolling Fields, Inc., No. CIV.A. 10-285, 2012 WL 3144050,

at *13 (W.D. Pa. Aug. 1, 2012)). In order to allege an FMLA interference claim based on a failure to

advise, the Plaintiff must allege all three elements. See Morgenfruh, 2019 WL 4511711, at *6

claim based on failure to advise failed where employee was not entitled to right

under the FMLA).

As discussed above, the Amended Complaint does not properly allege Smith

was seeking FMLA-qualifying leave. Muns v. Camden Cnty. Bd. of Soc. Servs., No.

CV 17-00587, 2019 WL 3214172, at *8 (D.N.J. July 17, 2019) (stating on summary

judgment because plaintiff “was not medically qualified to take any FMLA . . . there

were no rights” the employer could interfere with). Smith’s FMLA interference

claim based on a failure to advise must be dismissed.

The Amended Complaint also does not allege that Giant Eagle’s failure to

provide him the notice paperwork made him unable to exercise his FMLA rights in

a meaningful way. See generally, ECF No. 18. He does not allege that his FMLA

claim would have benefited from additional action by Giant Eagle. See Isley, 275 F.

Supp. 3d at 634. Instead, Smith only alleges that he would have made alternative

arrangements for childcare. ECF No. 18 at ¶ 25.

As Smith’s Amended Complaint cannot meet this “threshold” issue of an

FMLA-qualifying reason for leave, the Court does not address the remaining

elements of the claim. The Court respectfully recommends that Giant Eagle’s

Motion to Dismiss Smith’s FMLA interference claim based on a failure to advise be

GRANTED. It is also respectfully recommended that Smith be granted leave to

amend his complaint to correct the deficiencies in pleading an FMLA-qualifying

reason for leave, should he be able to do so in good faith.

ii. FMLA Retaliation

Smith also brings an FMLA retaliation claim against Giant Eagle for

terminating him for his absences related to caring for his son. ECF No. 13 at ¶¶ 75-

78. Smith’s FMLA retaliation claim fails for the same reason his FMLA

interference claims fail – the Amended Complaint does not adequately allege Smith

was requesting FMLA-qualifying leave.

To bring an FMLA retaliation claim, a plaintiff must allege: (1) he invoked

the right to FMLA-qualifying leave, (2) he suffered an adverse employment decision,

and (3) the adverse action was causally related to his invocation of rights.

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012).

As with the FMLA interference claim, Smith must establish that he had a right to

FMLA benefits in the first instance – namely, that he requested leave for a “serious

medical condition.” Scott, 2010 WL 3156130, at *3 (W.D. Pa. Aug. 10, 2010). See

also Snyder, 2021 WL 3493512, at *3 (“While the elements of a prima facie case of

FMLA retaliation and interference differ, they share a common element: the

employee must have been entitled to FMLA leave”); Blake, 2022 WL 17250561, at

*3 (“Plaintiff alleges both an interference and retaliation claim. Under both claims,

Plaintiff must show that he was entitled to FMLA-qualifying leave”). He has not

alleged as much here.

Smith does not adequately allege he requested leave for an FMLA-qualifying

reason, as he neither alleges the son’s mother was his “spouse,” nor that his son had

a serious medical condition. ECF No. 13 at ¶¶ 13-18. See also Rynders, 650 F.3d at

1195 (“FMLA benefits are contingent upon the employee having “a serious health

condition that makes [him] unable to perform the functions of [his] position.”).

Since Smith cannot show that he invoked the right to FMLA-qualifying leave,

he cannot meet the first, threshold element of an FMLA retaliation claim. It is

respectfully recommended that Giant Eagle’s Motion to Dismiss Smith’s FMLA

retaliation claim GRANTED. However, as with his FMLA interference claims, it is

respectfully recommended that Smith be granted leave to amend his complaint to

cure these deficiencies, should he be able to do so in good faith.

III. Conclusion

Based on the above, it is respectfully recommended that Giant Eagle’s Motion

to Dismiss Smith’s FMLA interference claim (Count II) and FMLA retaliation claim

(Count III) be granted. It is also respectfully recommended that Smith be given

leave to amend his complaint to cure the deficiencies in pleading an FMLA-

qualifying reason for leave, should he be able to do so in good faith.

In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties

may seek review by the District Court by filing Objections to the Report and

Recommendation within fourteen (14) days of the filing of this Report and

Recommendation, or by October 30, 2025. Any party opposing the objections shall

have fourteen (14) days from the date of service of Objections to respond thereto.

See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections will constitute a waiver

of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

DATED this 16th day of October, 2025.

BY THE COURT:

s/Christopher B. Brown

United States Magistrate Judge

CC: Hon. Nora Barry Fischer

Senior United States District Judge

All counsel of record, via ECF