# JENKINS

> District Court, E.D. Pennsylvania · May 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11362509

## Case

- **Full name:** Christopher Jenkins, Jr. v. Wal-Mart Associates, Inc., Sam’s East, Inc.
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** May 1, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOPHER JENKINS, JR. : CIVIL ACTION
:
v. : NO. 24-6731
:
WAL-MART ASSOCIATES, INC., :
SAM’S EAST, INC. :

MEMORANDUM

MURPHY, J. May 1, 2026
This is an employment discrimination case under the ADA and FMLA. Christopher
Jenkins worked at the Willow Grove Sam’s Club for two and a half years. Mr. Jenkins has
sickle-cell anemia, and sometimes he has to miss work because of painful flare-ups. A few
weeks after a brief hospitalization, Sam’s Club fired him. Mr. Jenkins sued Sam’s Club for
disability discrimination, retaliation, failure to accommodate, and interference with his medical
leave. Mr. Jenkins says Sam’s Club fired him because of his condition and his request for
intermittent leave. Sam’s Club says it made efforts to accommodate Mr. Jenkins, but he violated
the official attendance policy by failing to properly account for his absences. Both sides now
move for summary judgment — Sam’s Club for judgment on all claims, and Mr. Jenkins for his
interference claim. The evidence on summary judgment is decidedly mixed, and a close
examination reveals that a reasonable jury could see it either way. Because there is a genuine
dispute of material fact as to why Sam’s Club fired Mr. Jenkins, we deny both parties’ motions.
I. Factual Background1
In August 2021, Mr. Jenkins began working for Sam’s Club2 at its Willow Grove, PA
location as a Tire and Battery Technician. DI 27-3 ¶ 32. During his new employee training, Mr.
Jenkins saw Sam’s Club’s Attendance and Punctuality Policy (Attendance Policy). DI 27-3 ¶ 37.

In general, the Attendance Policy states that absences or late arrivals must be reported by calling
a specific reporting line or filling out a form on the employee intranet. DI 27-3 ¶ 11. If these
two options are unavailable, the Attendance Policy requires the employee to report his absence
directly to a member of management. DI 27-3 ¶ 12. Finally, if the employee is physically
unable to report the absence due to medical emergency, he may have another person report his
absence or late arrival. DI 27-3 ¶¶ 14, 15. According to the Attendance Policy, “failure to
provide this notification may result in disciplinary action, up to and including termination, even
if the absence is authorized.” DI 27-3 ¶ 13.
For absences related to intermittent leave, the Attendance Policy more specifically
requires the employee to report the absence to Sedgwick, Sam’s Club’s third-party-leave

administrator, within two calendar days of the absence. DI 27-3 ¶ 16. If extenuating
circumstances prevent an employee from reporting an absence timely, the Attendance Policy
instructs them to contact Sedgwick to discuss. DI 27-3 ¶ 18. Failure to report the absence to

1 We draw these facts from (1) Sam’s Club’s consolidated statement of material facts with
plaintiff’s response and defendants’ reply (DI 27-3), (2) Mr. Jenkins’s statement of material facts
and defendants’ response (DI 26-1), and (3) miscellaneous record items filed in the parties’ Joint
Appendix (DI 27-4, 27-5, 27-6, 27-7). We adopt the sequential pagination supplied by the
CM/ECF docketing system.

2 Because Walmart’s subsidiary, Sam’s East, operates a chain of Walmart-owned
warehouse clubs called Sam’s Club, for clarity, we refer to the defendant as Sam’s Club
throughout this opinion.
2
Sedgwick timely will result in the intermittent leave time being denied, and the employee may
receive points for the time missed.3 DI 27-3 ¶ 17.
Under the Attendance Policy, employees receive points as a form of demerits. DI 27-3
¶ 19. An unauthorized absence results in one point. DI 27-3 ¶ 25. Authorized absences include

approved intermittent leave and “any other absence protected by law.” DI 27-3 ¶ 20. If an
associate is absent from a scheduled shift and does not report the absence, and the absence is not
authorized, the associate is deemed a “No Call/No Show,” and will receive three points: two for
the failure to report and one for the absence itself. DI 27-3 ¶¶ 28, 29. If an employee
accumulates five or more points in a rolling six-month period, he will be subject to termination.
DI 27-3 ¶ 23.
Mr. Jenkins has sickle-cell anemia, a serious and chronic health condition; he was
diagnosed with at birth. DI 27-3 ¶ 38. One effect of Mr. Jenkins’s sickle cell anemia includes
intermittent “flare-ups” of pain in his body that can result in hospitalization. DI 27-3 ¶ 39. Mr.
Jenkins disclosed his sickle-cell anemia during his interview with Sam’s Club in 2021 and stated

that he may have to miss work due to flare-ups around two times per month. DI 27-3 ¶ 40.
Between mid-September 2021 and mid-November 2022, Sam’s Club excused multiple
absences on Mr. Jenkins’s attendance record as “Reasonable accommodation,” “Auto-
Authorized,” “Prior approval from manager,” or “Leave of absence – LOA – authorized.” DI

3 While an FMLA request is pending, Sam’s Club managers are able to mark an absence
as conditional. DI 27-3 ¶ 19, Def.’s Reply. When absences are under conditional status, they do
not result in points and will be conditional until Sedgwick approves or denies the FMLA leave.
DI 27-4 at 306, 27:1-9, 28:16-19. Once Sedgwick has decided to approve or deny the leave,
managers can go back into the system and identify whether the absence is authorized or
unauthorized. DI 27-4 at 306, 28:20-29:1.
3
27-3 ¶ 43. In January 2023, Mr. Jenkins was approved for an intermittent leave of absence
(ILOA) via Sedgwick to be effective from November 17, 2022, through November 6, 2023. DI
27-3 ¶¶ 44-45. Under this ILOA, Mr. Jenkins was approved for up to twelve absences per
month, and an additional two absences every three months. DI 27-3 ¶ 48. The Sedgwick

approval letter stated that “[a]ll absences must be reported to Sedgwick within 2 calendar days
from the absence(s) missed. Absences reported after 2 calendar days may be denied.” DI 27-3
¶ 49. The letter also stated that “[y]ou must also report your absence using your normal call-in
procedures for your facility/department. Failure to do so may result in accountability for that
absence.” DI 27-3 ¶ 50. Between mid-August and mid-October 2023, Mr. Jenkins received a
total of fourteen points for No Call/No Show absences. DI 27-3 ¶ 67. Many of these points were
due to untimely reporting to Sedgwick. DI 27-3 ¶¶ 55-62.
On November 9, 2023, Mr. Jenkins received a letter from Sedgwick indicating that his
ILOA ended on November 6, and that he should contact Sedgwick immediately if he needed to
extend his intermittent leave. DI 27-3 ¶¶ 68-69. In the meantime, Mr. Jenkins accrued nine

more points for No Call/No Show absences on November 15, 17, and 22. DI 27-3 ¶ 76. Mr.
Jenkins did not apply for an extension of his intermittent leave until December 1. DI 27-3 ¶ 72.
On November 28, 2023, Mr. Jenkins was hospitalized because of a sickle-cell crisis. DI
26-1 ¶ 12. He underwent several medical tests, was prescribed medication, and remained in the
hospital until December 3, 2023. DI 26-1 ¶¶ 14-15. While he was hospitalized, Mr. Jenkins
spoke to his supervisor, Tara Collins, about his hospitalization. DI 26-1 ¶ 22. Mr. Jenkins’s
mother also called Sam’s Club to report his absence for him while he was hospitalized. DI 27-3
¶ 50, Pl.’s Resp., Def.’s Reply. On December 1, Mr. Jenkins requested additional FMLA leave

4
through Sedgwick. DI 27-3 ¶ 49, Pl.’s Resp.
Once Mr. Jenkins filed for FMLA leave, Sedgwick notified him that he would need to
submit medical documentation by December 21, 2023. DI 27-4 at 253. Sedgwick also
immediately emailed Sam’s Club about Mr. Jenkins’s request and explained that a final decision

would be issued within 20 days. DI 27-4 at 265. Mr. Jenkins submitted his medical certification
to Sedgwick on December 21, 2023. DI 27-4 at 255. On December 22, 2023, Sedgwick
approved Mr. Jenkins’s request for an ILOA to be effective between November 28, 2023, and
November 27, 2024. DI 27-3 ¶ 94. This ILOA would have approved Mr. Jenkins to be absent
for up to two days per month for his condition, and an additional one hour every six months for
treatment. DI 27-3 ¶ 95.
The same day that Mr. Jenkins submitted his medical certification to Sedgwick,
December 21, 2023, Sam’s Club terminated him. DI 27-3 ¶¶ 110-111. At the time of his
termination, Mr. Jenkins had more than five points on his attendance record. DI 27-3 ¶ 112. Mr.
Jenkins received a total of fourteen occurrence points for failing to timely report his absences to

Sedgwick, and for No Call/No Shows, during August, September, and October of 2023. DI 27-3
¶ 99. Mr. Jenkins also received a total of twenty-seven occurrence points for No Call/No Shows
after his intermittent leave ended in November of 2023. DI 27-3 ¶ 98. After his hospital
discharge, Mr. Jenkins received a total of eighteen occurrence points for No Call/No Shows on
December 6, 7, 8, 10, 12, and 20. DI 27-3 ¶ 93.
In December 2024, Mr. Jenkins filed suit, alleging various claims under the Americans

5
with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA),4 and the Family
Medical Leave Act (FMLA). DI 1 ¶ 1. Mr. Jenkins’s claims are: (1) ADA disability
discrimination; (2) ADA retaliation; (3) ADA failure to accommodate; (4) FMLA retaliation; and
(5) FMLA interference.5 DI 1 ¶¶ 45-64. Following discovery, Mr. Jenkins moves for partial

summary judgment on his FMLA interference claim. DI 26. Sam’s Club moves for summary
judgment on all claims. DI 27-1.
II. Standard of Review
The Federal Rules of Civil Procedure require summary judgment movants to “show[ ]
that 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 material fact is one “that might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
see SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 203 (3d Cir. 2022) (“[F]or a factual
dispute to be material, its resolution must have the potential to affect the outcome of the suit.”).
And a “genuine dispute” over a material fact means “the evidence is such that a reasonable jury

could return a verdict for” the party not moving for summary judgment. Anderson, 477 U.S. at
248. This evidence can be “direct or circumstantial” and “must amount to more than a scintilla,

4 Pennsylvania courts “generally interpret the PHRA in accord with its federal
counterparts.” Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). Thus, to the extent that a
plaintiff’s claims under the ADA are coextensive with the PHRA, we need not conduct a separate
analysis for each of them. Id.; see also Fasold v. Just., 409 F.3d 178, 184 n.8 (3d Cir. 2005)
(“[T]he PHRA is to be interpreted as identical to federal anti-discrimination laws except where
there is something specifically different in its language requiring that it be treated differently.”)
(citation modified). Here, Mr. Jenkins’s claims appear coextensive, and so our analysis under the
PHRA is the same as for his federal claims.

5 Mr. Jenkins also brought ADA and PHRA hostile work environment claims but later
withdrew them. DI 28 at 22 n.5.
6
but may amount to less (in the evaluation of the court) than a preponderance.” Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Williams v. Borough of West Chester, 891 F.2d
458, 460-61 (3d Cir. 1989)). In deciding whether a genuine dispute of material fact exists, we
must view “the evidence in the light most favorable to the nonmovant.” Kelly v. Borough of

Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Moreover, because employment discrimination cases
center around the question of why an employer took an adverse action against a plaintiff, which
is “clearly a factual question,” summary judgment is rarely appropriate in this type of case.
Marzano v. Comput. Sci. Corp., 91 F.3d 497, 509-10 (3d Cir. 1996) (quoting Chipollini v.
Spencer Gifts Inc., 814 F.2d 893, 899 (3d Cir. 1987)).
III. Analysis
a. ADA Disability Discrimination: A jury will decide whether Sam’s Club
discriminated against Mr. Jenkins because of his sickle cell anemia.
Courts analyze disability discrimination claims under the burden shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Gardner v. Ulta Salon Cosms. &
Fragrance Inc., No. 22-2785, 2024 WL 1110384, at *1 (3d Cir. Mar. 14, 2024) (citing Walton v.
Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667-68 (3d Cir. 1999)). Under McDonnell
Douglas, a plaintiff must first establish a prima facie case of discrimination. Ross v. Gilhuly,
755 F.3d 185, 193 (3d Cir. 2014) (citation omitted). If the plaintiff succeeds, the defendant must
articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. The
burden then shifts back to the plaintiff to prove, by a preponderance of the evidence, that the

articulated reason was a mere pretext for discrimination. Id.
To establish a prima facie case of disability discrimination, a plaintiff must demonstrate
that (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to
7
perform the essential functions of the job, with or without reasonable accommodations by the
employer; and (3) he has suffered an otherwise adverse employment decision as a result of
discrimination. Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 245 (3d Cir. 2020) (citing Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)). For the purposes of this motion

only, Sam’s Club does not contest the issue of whether Mr. Jenkins satisfies the first or second
prongs of the claim, so we focus only on the third prong. DI 27-1 at 9 n.3.
The evidentiary burden at the prima facie stage is “rather modest: it is to demonstrate to
the court that . . . discrimination could be a reason for the employer’s action.” Marzano, 91 F.3d
at 508 (emphasis in original). Mr. Jenkins has met that burden here. Significantly, the evidence
allows for the conclusion that, when making its termination decision, Sam’s Club held against
Mr. Jenkins absences that could have been excused as a reasonable accommodation under the
ADA (November 29 and December 1, 2023). DI 27-4 at 109; DI 27-4 at 122. Moreover, Sam’s
Club failed to determine whether Mr. Jenkins could have these absences excused before firing
him — or, at the very least, determine whether it could mark them as conditional absences until

the FMLA request was approved or denied. A jury could also conclude that Sam’s Club treated
similarly situated non-disabled employees more favorably by issuing them official written
warnings, accompanied by meetings to discuss the written warnings, before they were
terminated. See, e.g., DI 27-4 at 138-139, 25:2-27:25; DI 28 at 20-21. On that record,
discrimination could have been a reason for Sam’s Club’s action. Marzano, 91 F.3d at 508.
In response, Sam’s Club advances a legitimate, non-discriminatory reason for terminating
Mr. Jenkins: he had too many points, in violation of the Attendance Policy. The written policy
states that if an employee accumulates five or more points in a rolling six-month period, he can

8
be terminated. It is undisputed that when Mr. Jenkins was terminated, he had more than five
points on his attendance record. DI 27-3 ¶ 112. Failure to comply with company policies and
procedures can be a legitimate, non-discriminatory reason. Campo v. Mid-Atl. Packaging
Specialties, LLC, 564 F. Supp. 3d 362, 385-86 (E.D. Pa. 2021).

Now the burden shifts back to Mr. Jenkins to show that Sam’s Club’s reason for firing
him is mere pretext. A plaintiff may defeat a motion for summary judgment by either (i)
discrediting the proffered reasons, either circumstantially or directly (e.g., by painting them as
weak, implausible, contradictory, or incoherent), or (ii) adducing evidence, whether
circumstantial or direct, that discrimination was more likely than not a motivating or
determinative cause of the adverse employment action (e.g., by showing that the employer in the
past had subjected him to unlawful discriminatory treatment, that the employer treated other,
similarly situated persons not of his protected class more favorably, or that the employer has
discriminated against other members of her protected class or other protected categories of
persons). Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994) (emphasis in original). Also,

the timing of an employee’s dismissal may raise an inference that an employer’s purported
reasons for terminating him were pretextual. Josey v. John R. Hollingsworth Corp., 996 F.2d
632, 639 (3d Cir. 1993).
The record allows Mr. Jenkins to both directly discredit the proffered reason and provide
circumstantial evidence that discrimination was more likely than not a motivating cause of the
termination. First, as explained above, when asked to list the reasons why Mr. Jenkins was
terminated, Sam’s Club pointed to Mr. Jenkins’s Attendance Record, which lists points assessed
to him for absences on November 28 and December 1, 2023, when Mr. Jenkins was in the

9
hospital for his sickle cell anemia. As for circumstantial evidence, Mr. Jenkins adduced
evidence of timing, inconsistent explanations, and similarly situated persons treated more
favorably.
Timing. 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” of
discrimination. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)
(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)). Where the
temporal proximity between the protected activity and the adverse action is “unusually
suggestive,” it is sufficient standing alone to create an inference of causality and defeat summary
judgment. Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)).
Mr. Jenkins focuses on the 20 days between when he requested additional FMLA leave
and when he was terminated as a way to suggest pretext. DI 28 at 16. When viewing temporal
proximity with the other evidence in this record, 20 days may be enough to establish pretext. See
Farrell, 206 F.3d at 280 (agreeing with the district court that timing plus other evidence may be

an appropriate test where temporal proximity is not so close to be “unduly suggestive,” and that
three to four weeks could support an inference of causation). Moreover, regardless of whether
20 days is enough to support a conclusion of pretext, Mr. Jenkins’s medical documentation for
his FMLA request was due on December 21, 2023, and Sam’s Club terminated him on the same
day. This was also one day before Mr. Jenkins’s FMLA request was approved by Sedgwick. A
jury could fairly view this as “unusually suggestive” temporal proximity. See Kern v. DAS Cos.
Inc., No. 24-2420, 2025 WL 2170324, at *9 n.4 (3d Cir. July 31, 2025) (“Unusually suggestive
timing has generally been understood to mean no more than a handful of days”) (citation

10
modified); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days is unusually
suggestive).
Inconsistent explanations. In an interrogatory asking Sam’s Club to identify each reason
why Mr. Jenkins was terminated, Sam’s Club responded and pointed to Mr. Jenkins’s

Attendance Record, “which identifies the dates and events for which [Mr. Jenkins] received
attendance occurrence points, leading to [Mr. Jenkins’] separation of employment.” DI 27-4 at
109 (emphasis added). This statement, understood most favorably to Mr. Jenkins, suggests that
all the dates on Mr. Jenkins’s Attendance Record were important in leading to his termination.
Later, during depositions, Christopher Rodgers, Mr. Jenkins’s supervisor, stated that Sam’s Club
had already had plans to terminate him before he was even hospitalized. DI 27-4 at 190, 79:1-
19. A jury would be free to resolve these inconsistencies as it sees fit.
Similarly situated/comparator evidence. The Third Circuit has stated that “similarly
situated does not mean identically situated, the plaintiff must nevertheless be similar in all
relevant respects . . . [this] often includes a showing that the two employees dealt with the same

supervisor, were subject to the same standards, and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish their conduct or the employer’s
treatment of them.” Opsatnik v. Norfolk S. Corp., 335 Fed. App’x 220, 222-23 (3d Cir. 2009)
(citation modified). Here, Mr. Jenkins has provided comparative evidence that we find sufficient
to warrant denial of summary judgment.
Mr. Jenkins identifies two other employees, Brandon Gross and Caiyan Mace, who
worked as tire and battery technicians at the Willow Grove location and who were supervised by
Tara Collins, just like Mr. Jenkins. DI 28 at 20. Both Mr. Gross and Mr. Mace also had

11
attendance issues, but they both received verbal and written discipline for their attendance prior
to being terminated. DI 28 at 20. In contrast, Mr. Jenkins was not given official written
discipline — only one of his supervisors, Joshua Knight-Fochs, spoke with Mr. Jenkins about his
attendance on July 20. DI 27-5 at 62. And unlike Mr. Jenkins, these other two employees did

not disclose any medical conditions, did not request any accommodations, and did not request
FMLA leave. DI 28 at 20. The comparators here dealt with the same supervisor, were subject to
the same standards because they were all tire and battery technicians at the same Sam’s Club
location, and all engaged in similar conduct of violating the Attendance Policy. A reasonable
jury could find these comparators similarly situated, and Mr. Jenkins has provided sufficient
evidence that the comparators not of his protected class were treated more favorably.
For some or a combination of these reasons, we conclude that a reasonable jury could
conclude that Mr. Jenkins has established pretext. Thus, Sam’s Club’s motion for summary
judgment on the disability discrimination claim is denied.
b. ADA and FMLA Retaliation: A jury will decide whether Sam’s Club
retaliated against Mr. Jenkins for exercising his ADA and/or FMLA rights.
The McDonnell Douglas burden shifting framework also assists with retaliation claims
under the ADA and FMLA.6 Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir.
2022). The elements of a claim for retaliation under the ADA, PHRA, and FMLA are
“essentially the same,” so we address them together. Garcia v. Vertical Screen, 592 F. Supp. 3d
409, 422 (E.D. Pa. 2022).

6 Mr. Jenkins also argues that he can establish his FMLA retaliation claims under the
mixed-motive framework established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See
DI 28 at 10-12. Because the defendant moves for summary judgment entirely under McDonnell
Douglas, we will proceed exclusively under this framework for purposes of evaluating this
motion.
12
To state a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a
protected activity (such as requesting a reasonable accommodation under the ADA or taking
FMLA-qualifying leave); (2) he suffered an adverse employment decision; and (3) there was a
causal connection between the protected activity and the adverse employment decision. Garcia,

592 F. Supp. 3d at 422; see Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d
Cir. 2004) (stating elements of an FMLA retaliation claim; Krouse v. Am. Sterilizer Co., 126
F.3d 494, 500 (3d Cir. 1997) (stating elements of an ADA retaliation claim). Like with its
disability discrimination argument, Sam’s Club contests only the third prong for both the ADA
and FMLA retaliation claims. DI 27-1 at 19, 28.
As explained above in our disability discrimination analysis, the prima facie case under
McDonnell Douglas does not carry an onerous burden. Moreover, the framework for evaluating
causality under a retaliation claim is largely the same as when evaluating a disability
discrimination claim. “We consider a broad array of evidence in determining whether a
sufficient causal link exists to survive a motion for summary judgment.” LeBoon, 503 F.3d at

232 (citation modified). Where the temporal proximity between the protected activity and the
adverse action is “unusually suggestive,” it is sufficient standing alone to create an inference of
causality and defeat summary judgment. Id. (citing Clark Cnty. Sch. Dist., 532 U.S. at 273-74)
(emphasis added). Sam’s Club argues that Mr. Jenkins cannot show that there is a causal
connection between any protected activity and his separation of employment. DI 27-1 at 19, 28.
We disagree. Given the modest burden on Mr. Jenkins, a reasonable jury could find that Mr.
Jenkins’s termination gives rise to an inference of ADA or FMLA retaliation. Mr. Jenkins’s
protected activity here was, under both the ADA and FMLA, requesting intermittent leave on

13
December 1 while he was in the hospital. On December 21, Sam’s Club terminated Mr. Jenkins
purportedly for points accrued in violation of the Attendance Policy. This was three weeks after
his request, but it was also the same day that his medical certification for the request was due,
and the day before Sedgwick approved his request. For reasons similar to those we explained

above, a reasonable jury could infer causation. For example, based on Sam’s Club’s
interrogatory response and Mr. Jenkins Attendance Record, a reasonable jury could conclude that
Sam’s Club considered absences that could have been excused as a reasonable accommodation
under the ADA or have been FMLA-qualifying when it fired him. This is direct evidence of
causation. Moreover, the temporal proximity here of one day between Mr. Jenkins’s protected
activity and the adverse action is “unusually suggestive” and is sufficient standing alone.
Again, Sam’s Club states that its legitimate, non-discriminatory reason for terminating
Mr. Jenkins was because he had too many points in violation of the Attendance Policy. Mr.
Jenkins, however, has provided enough evidence to survive summary judgment. A reasonable
jury could conclude that Sam’s Club’s reason is pretextual. For pretext, the plaintiff can point to

“intervening antagonism or retaliatory animus, inconsistencies in the employer’s articulated
reasons for terminating the employee, or any other evidence in the record sufficient to support
the inference of retaliatory animus.”7 LeBoon, 503 F.3d at 232-33. The reasons are largely the
same as we explained for Mr. Jenkins’s disability discrimination claim. Mr. Jenkins can both
directly discredit the proffered reason and offer circumstantial evidence. Mr. Jenkins identified

7 While the Third Circuit discussed this rule in the context of the plaintiff establishing a
prima facie case, later in that opinion, the court mentioned that “evidence supporting the prima
facie case is often helpful at the pretext stage and nothing about the McDonnell Douglas formula
requires us to ration the evidence between one stage or the other.” LeBoon, 503 F.3d at 234 n.10
(citing Farrell, 206 F.3d at 286).
14
inconsistencies in Sam’s Club’s reasons for terminating him, as well as evidence of similarly
situated employees being treated more favorably. A reasonable jury could adopt Mr. Jenkins’s
view of the evidence and conclude that Sam’s Club retaliated against Mr. Jenkins for requesting
leave. Thus, Sam’s Club’s motion is denied in this respect.

c. ADA Failure to Accommodate: A jury will determine whether Sam’s Club
failed to accommodate Mr. Jenkins’s disability.
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. Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017). Sam’s Club
argues that it did not fail to accommodate Mr. Jenkins and indeed went far beyond making a
“good faith effort to assist,” because Sam’s Club excused over sixty absences in the first two
years of Mr. Jenkins’s employment and approved him for a “generous leave of absence” between
November 17, 2022, and November 6, 2023. DI 27-1 at 16. Mr. Jenkins responds by arguing
that after he requested medical leave (i.e., his request for an accommodation), Sam’s Club did
not make a good faith effort in assisting him in determining whether his hospital absences could
be excused as a reasonable accommodation, and Mr. Jenkins could have been reasonably
accommodated but for Sam’s Club’s lack of good faith. DI 28 at 31-32. We think Mr. Jenkins
did request an accommodation and that a reasonable jury could conclude that Sam’s Club did not
make a good faith effort to assist.

Starting with requesting a reasonable accommodation, the law is clear that a request for
FMLA leave alone may constitute a request for an accommodation. See Capps, 847 F.3d at 156-
57 (“We recognize that a request for FMLA leave may qualify, under certain circumstances, as a
15
request for a reasonable accommodation under the ADA, see 29 C.F.R. § 825.702(c)(2), and to
the extent that the District Court held otherwise, that was error.”). Here, Sam’s Club did not
approve Mr. Jenkins’s requested FMLA leave until after it terminated him, and Mr. Jenkins
could not take the requested leave because he had already been fired. It is undisputed that Mr.

Jenkins filed a leave of absence request on December 1, 2023. DI 27-3 ¶ 77. Thus, under
Capps, Mr. Jenkins requested an accommodation.
The third element requires the plaintiff to establish that the employer did not make a good
faith effort to assist the employee. Capps, 847 F.3d at 157. Examples of failing to act in good
faith include “failure by one of the parties to help the other party determine what specific
accommodations are necessary, obstructing or delaying the interactive process, and failing to
communicate, by way of initiation or response.” Wilson v. Mt. Airy #1, LLC, No. 3:15cv249,
2015 WL 8331869, at *5 (M.D. Pa. Dec. 9, 2015) (citation modified).
Viewing the evidence in the light most favorable to Mr. Jenkins, a reasonable jury could
conclude that Sam’s Club did not make a good faith effort to assist him in seeking an

accommodation. Mr. Jenkins has established that he filed for FMLA leave on December 1, 2023
(DI 27-4 at 253) and called his supervisor Tara Collins to let her know that he was in the hospital
for his sickle-cell anemia (DI 27-4 at 148, 64:18-65:7). Sam’s Club received notification of Mr.
Jenkins’s request on December 1. DI 27-4 at 265. After Mr. Jenkins filed his FMLA leave
request, the next step was to submit his medical documentation by December 21, which he did.
DI 27-4 at 255.
When Mr. Rodgers met with Mr. Jenkins on December 21, he asked Mr. Jenkins if he had
any documentation that he could provide to Sedgwick for why he had been calling out on those

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days, and Mr. Jenkins had none with him. DI 27-4 at 193, 92:14-18. Mr. Rodgers also stated in
his deposition statement that if Mr. Jenkins did have documents, that would have changed his
mind about terminating him. DI 27-4 at 193, 92:19-25. A reasonable jury would not have to
view this as a good faith effort. The jury could find that Mr. Jenkins did have that

documentation (because he submitted the required medical certification to Sedgwick), and could
question why Sam’s Club did not reach out to Sedgwick for Mr. Jenkins’s documentation (since
Sedgwick handles these matters for Sam’s Club). As evidence of its good faith, Sam’s Club also
points to the fact that it went back and manually excused Mr. Jenkins’s absences between
September 2021 and November 2022. DI 27-1 at 16; DI 27-3 ¶ 43. But again, a reasonable juror
could fairly question why Sam’s Club did not consider that approach again for Mr. Jenkins
before terminating him in December 2023. A reasonable jury is free to view these facts as
consistent with Mr. Jenkins’s position.
d. FMLA Interference: A jury will decide whether Sam’s Club interfered with
Mr. Jenkins’s FMLA rights.
To establish a claim of FMLA interference, the plaintiff must show: (1) he was an
eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s
requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the
defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to
which he was entitled under the FMLA. Ross, 755 F.3d at 191-92 (citations omitted).
As a premise of its motion, Sam’s Club does not dispute that Mr. Jenkins has satisfied the

first three elements of the interference claim. And in both cross-motions for summary judgment
on this issue, the parties argue that there is no genuine dispute of material fact as to the last two
elements. But there is. Starting with Mr. Jenkins, he argues that he satisfied the last two prongs
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as a matter of law because: (1) he gave notice of his need to take FMLA leave when he contacted
his manager and Sedgwick about his hospitalization (DI 26 at 15, 18) and (2) he was denied
benefits for which he was lawfully entitled when Sam’s Club assessed points against him for his
November 29, 2023 and December 1, 2023 absences and relied on those points in deciding to

terminate him (DI 26 at 19, 21). In contrast, Sam’s Club argues that it is entitled to summary
judgment on this issue because (1) Mr. Jenkins’s repeated failure to adhere to Sam’s Club’s
Attendance Policy cannot constitute proper notice to his employer of his intention to take FMLA
leave, and (2) Sam’s Club terminated Mr. Jenkins for reasons unrelated to his intention to
exercise his FMLA rights, so Mr. Jenkins cannot prove that he was denied any FMLA benefits.
DI 27-1 at 24-26. Assuming without deciding that Mr. Jenkins did properly give notice of his
need to take FMLA leave, there remains a genuine dispute of material fact as to whether Mr.
Jenkins was denied any FMLA benefits.
FMLA regulations bar employers from considering an employee’s FMLA leave as a
negative factor in employment actions such as disciplinary actions, as well as from counting

FMLA leave under no fault attendance policies. 29 C.F.R. § 825.220(c); Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012). Thus, assessing points or firing an
employee for FMLA-qualifying absences could constitute FMLA interference. See Modaffare v.
Owens Brockway Glass Container, Inc., 643 F. Supp. 2d 697, 703 (E.D. Pa. 2009) (“Because it
is a violation to consider absenteeism due to an FMLA leave in a decision to terminate an
employee, this is another conceivable example of Defendant denying Plaintiff benefits to which
he was entitled under the FMLA.”). The FMLA, however, does not provide employees with a
right against termination for a reason other than interference with their FMLA rights. Sarnowski

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v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007) (citations omitted). A plaintiff
“will not prevail on [an] interference claim if [the defendant] can establish that it terminated [the
plaintiff] for a reason unrelated to his intention to exercise his rights under the FMLA.” Id.
The heart of the parties’ disagreement here is whether Sam’s Club terminated Mr. Jenkins

because of his FMLA-qualifying absences while he was in the hospital. On the one hand,
interrogatory and documentary evidence suggest that Sam’s Club did take Mr. Jenkins’s FMLA-
qualifying absences into account when it terminated him. When asked to list each reason why
Mr. Jenkins was terminated, Sam’s Club pointed to Mr. Jenkins’s Attendance Record, which
identifies the dates for which Mr. Jenkins received points that ultimately led to his termination.
DI 27-4 at 109. Critically, the Attendance Record that Sam’s Club refers to includes points
assessed to Mr. Jenkins for absences on November 28, 2023 and December 1, 2023, which was
when Mr. Jenkins was in the hospital. DI 27-4 at 122.
On the other hand, deposition testimony and Mr. Jenkins’s overall attendance record
suggest that it is entirely possible that Mr. Jenkins was terminated because of his failure to

follow the Attendance Policy procedures. Mr. Rodgers, Mr. Jenkins’s supervisor, stated in his
deposition that Mr. Jenkins was terminated not for his hospital stay, but rather because Mr.
Jenkins did not properly notify Sedgwick of his absences so that they could be approved. DI 27-
4 at 189, 77:21-25; DI 27-4 at 190, 80:18-81:7. A jury could consider Mr. Jenkins’s Attendance
Record, related testimony, and the other record evidence and come to two very different, but
both reasonable conclusions. A jury may see the November 28, 2023 and December 1, 2023
absences included in Mr. Jenkins’s Attendance Record and conclude that Sam’s Club, when it
fired Mr. Jenkins for his attendance, unfairly took into account his FMLA-qualifying absences.

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Or a jury may see the many other absences listed throughout Mr. Jenkins’s Attendance Record
— particularly the ones after he was discharged from the hospital — and conclude that Sam’s
Club was justified in firing Mr. Jenkins for being over the 5-point limit. Because of this,
summary judgment on the FMLA interference claim is improper.

IV. Conclusion
For the reasons discussed above, we deny Sam’s Club’s motion for summary judgment in
its entirety. We also deny Mr. Jenkins’s motion for summary judgment on his FMLA
interference claim. All of Mr. Jenkins’s claims proceed to trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11362509. Public record. Not legal advice.