Lichtenstein v. University of Pittsburgh Medical Center

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-3419

______

JAMIE LICHTENSTEIN,

Appellant

v.

UNIVERSITY OF PITTSBURGH MEDICAL CENTER,

trading and doing business as UPMC; DEBORAH LIDEY;

UPMC PRESBYTERIAN SHADYSIDE, doing business as

Western Psychiatric Institute and Clinic; UPMC

BRADDOCK

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 09-cv-1350)

District Judge: Honorable William L. Standish

______

Argued on June 19, 2012

Before: AMBRO, VANASKIE and VAN ANTWERPEN,

Circuit Judges

(Filed: August 3, 2012 )

Charles H. Saul, Esq. [ARGUED]

Kyle T. McGee, Esq.

Margolis Edelstein

525 William Penn Place, Suite 3300

Pittsburgh, PA 15219

Counsel for Appellant

John J. Myers, Esq. [ARGUED]

Andrew T. Quesnelle, Esq.

Eckert, Seamans, Cherin & Mellott LLC

44th Floor, U.S. Steel Tower

600 Grant Street

Pittsburgh, PA 15219

Counsel for Appellees

______

OPINION OF THE COURT

______

VAN ANTWERPEN, Circuit Judge.

I.

Appellant Jamie Lichtenstein alleges that her

employer, University of Pittsburgh Medical Center (UPMC),1

terminated her employment in violation of the Family

1

Our reference to UPMC throughout this opinion, unless

otherwise indicated, is a collective reference to all four

defendants in this case, including UPMC Presbyterian

Shadyside, UPMC Braddock, and Deborah Lidey.

2

Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et

seq. The District Court granted summary judgment to UPMC

on Lichtenstein‘s retaliation and interference claims.

Lichtenstein‘s challenge to the District Court‘s decision

requires us to consider (a) the specificity of information

employees must provide to adequately notify employers of

unforeseeable FMLA leave, and (b) the nature of a pretext

analysis when a legitimate justification for terminating an

employee pre-existed that employee‘s exercise of FMLA

rights. Based on the evidence in this case, genuine factual

disputes exist about whether Lichtenstein‘s notice was

adequate, whether her invocation of FMLA rights was a

negative factor precipitating her termination, and whether

UPMC‘s proffered justification for its action was mere

pretext for retaliation. Accordingly, we will vacate the

District Court‘s grant of summary judgment on both claims

and remand for further proceedings.

II. FACTS & PROCEDURAL HISTORY

Jamie Lichtenstein began working with UPMC in

October 2005 as a research associate at UPMC‘s Western

Psychiatric Institute and Clinic. In September 2007,

Lichtenstein transferred to UPMC‘s hospital in Braddock,

Pennsylvania (―Braddock‖) where, less than four months

later, she was discharged. During her short tenure at

Braddock, Lichtenstein worked as a psychiatric technician

under the supervision of Deborah Lidey. Because this was a

new position for her, Lichtenstein was subject to a six-month

probationary period in which UPMC‘s progressive discipline

policy did not apply.

3

Although Lichtenstein received a merit-based raise to

her salary in October 2007, her time at Braddock was

tarnished by attendance problems and scheduling difficulties.

From October through the end of December, Lichtenstein was

tardy six times, absent twice, and requested changes to her

schedule on multiple occasions after the deadline for

requesting such changes had passed. The most egregious

incident during this time occurred on December 1st, a day

which Lichtenstein was scheduled to work a sixteen-hour

shift. In the days preceding December 1st, two co-workers

complained that Lichtenstein was planning to call-off if she

could not find a replacement. One of these co-workers told

Lidey that Lichtenstein claimed she needed the day off to do

school work2 and/or attend a concert. Lichtenstein‘s co-

workers were upset because UPMC policy prohibited

premeditated call-offs, and one of them might have to fill in

for her if she did not show up. In response to these

complaints, Lidey emailed Lichtenstein for an explanation.

Lichtenstein told Lidey she was hoping to take December 1st

off because it was the only day she could work on a group

project for school. Although Lidey denied this request,

Lichtenstein (alleging she was sick) called off.

In her deposition, Lidey indicated that Lichtenstein‘s

December 1st call-off was the moment when she first

considered firing her. According to Lidey, ―I had already

made many accommodations in her schedule, and I had in my

mind, if she calls off, then we can‘t further this.‖ App. at

2

In addition to her full-time position at Braddock,

Lichtenstein was also a part-time student. During her job

interview, Lidey told Lichtenstein that UPMC would attempt

to accommodate her school schedule.

4

331. Lidey did not, however, terminate Lichtenstein for the

incident, nor did she issue a written warning. Lichtenstein‘s

employment thus continued and arguably had a bright spot in

the days before Christmas when Lidey sent an email thanking

her for volunteering to fill people‘s shifts on both Christmas

Eve and Christmas Day. Less than three weeks later, on

January 10, 2008, Lidey informed Lichtenstein that her

employment was terminated.

While it is undisputed that UPMC terminated

Lichtenstein for attendance problems and scheduling

difficulties, the parties vigorously dispute the event, or ―final

straw,‖ that triggered the termination. According to UPMC,

the final straw occurred on December 30th, when—according

to UPMC‘s time logs—Lichtenstein arrived at work several

hours late and departed several hours early. Although this

incident was not recorded on Lichtenstein‘s staff log,3 and

although Lidey was unable to recall when she first learned

about it,4 UPMC insists this incident was the trigger for

Lichtenstein‘s termination. UPMC further asserts that the 11-

day delay between this December 30th incident and

Lichtenstein‘s termination can be explained by the following

3

The staff log was maintained by Amy Harris, UPMC‘s

administrative assistant for scheduling. The ―time log,‖ on

the other hand, was maintained through UPMC‘s

computerized system. As discussed below, the staff log is the

document Lidey reviewed prior to terminating Lichtenstein,

and is the document UPMC submitted to the EEOC as

―Exhibit M‖ to document Lichtenstein‘s attendance problems.

4

When asked when she first learned of the December 30th

incident, Lidey stated ―I can‘t remember that.‖ App. at 344.

5

two facts: (1) Lidey went on vacation on December 31st and

did not return until January 7th, and (2) Lidey‘s plan to fire

Lichtenstein on January 8th was thwarted by Lichtenstein‘s

request for leave that morning.

To support its assertion that Lidey made the

termination decision prior to leaving for vacation on

December 31, UPMC relies entirely on Lidey‘s own

testimony. In her deposition, Lidey stated that she made the

decision to terminate Lichtenstein before January 3rd. Id. at

344. Lidey also testified that prior to terminating employees

she always consults with Helene Brown, the head of Human

Resources. When asked when she first spoke with Brown

about terminating Lichtenstein, Lidey stated that it was

―before the New Year‘s.‖ Id. at 345. Elsewhere, however,

Lidey contradicted herself on both of these points. The

following are other answers Lidey gave when asked about the

date she decided to fire Lichtenstein:

Q. ―Had you made the decision to terminate

[Lichtenstein] before you went on leave?‖

A. ―I would have to go back and look at dates.‖ Id. at

331.

Q: ―Was [the termination decision made] before you

went on leave?‖

A: ―I can‘t remember dates.‖ Id. at 345.

Similarly, when asked to clarify when she first spoke with

Helene Brown, Lidey provided the following responses:

Q: ―Did you start your discussions with [Human

Resources] after you came back

6

from leave or before you went on leave?‖

A: ―I don‘t remember that.‖ Id. at 328.

Q: ―Was there a discussion with Human Resources in

December of 2007 before you went on leave to

terminate Jamie Lichtenstein?‖

A: ―I cannot remember the exact date.‖ Id. at 332.

Q: ―Did you talk to HR before . . . January 7, 2008?‖

A: ―I don‘t remember that.‖ Id. at 331.

Helene Brown was also unable to recall when she and Lidey

first discussed Lichtenstein‘s termination. Id. at 423. Brown

could only recall that it was before January 8th and could not

remember whether it was before, or after, Lidey went on

leave. Id.

Lichtenstein‘s first scheduled shift after Lidey went on

leave was January 3, 2008 at 3:00 p.m. Lichtenstein did not

make her shift that day, however, because early that morning

her mother was rushed to the hospital in an ambulance after

collapsing from a sudden excruciating pain in her leg. When

Lichtenstein arrived at the emergency room she saw her

mother crying from the pain. She had never seen her mother

crying as she was that morning and Lichtenstein tried her best

to comfort her. Although unnerved, Lichtenstein called

UPMC‘s nursing supervisor prior to noon to say she couldn‘t

make her shift.5 During the phone call, Lichtenstein told the

5

It is undisputed that by calling the nursing supervisor when

she did on January 3rd, Lichtenstein followed UPMC‘s

proper procedure for calling off sick. See App. at 308, 395–

7

supervisor she ―was currently in the emergency room, that my

mother had been brought into the hospital via ambulance, and

I would be unable to work that day.‖ Id. at 211. UPMC was

able to find someone to take Lichtenstein‘s shift and Cynthia

Krautz (Lidey‘s replacement while she was away) emailed

Lidey to inform her that Lichtenstein had called off.

Although Krautz‘s email did not indicate a reason for

Lichtenstein‘s call-off, Amy Harris (UPMC‘s employee in

charge of staff scheduling) marked the absence in

Lichtenstein‘s staff log as ―sick mom.‖ Id. at 585.

Lichtenstein‘s mother‘s condition was serious.

Doctors diagnosed her as suffering from disc hernia,

myopathy, and nerve impingement, and she remained

hospitalized until January 8th. During this hospital stay,

Lichtenstein and her brother, Michael, spent a considerable

amount of time with their mother and ran various errands,

including taking care of her dogs. Lichtenstein‘s mother,

whose recollection of her time at the hospital was ―a little

foggy,‖ id. at 493, testified that ―Jamie was really the 24/7

person that would be there, and Michael would come and

relieve her occasionally so she could run to the store and pick

up things or stuff like that or try to make me eat something,‖

id. at 494. Lichtenstein, however, did find time to work her

shifts at UPMC on both January 4th and 5th. During these

shifts, Lichtenstein made no further mention of her mother‘s

condition.

On January 7th, Lidey returned from vacation. On her

first morning back, Lidey forwarded Harris a copy of

96, 451–52. Nevertheless, the adequacy of the notice she

gave is an issue in this case.

8

Krautz‘s email from January 3rd in which Krautz apprised

Lidey that Lichtenstein had called-off. Above this forwarded

message from Krautz, Lidey wrote: ―Please pull up Jamie‘s

call offs for me.‖ Id. at 584. In response, Harris gave Lidey a

copy of the staff log, which included Harris‘s ―sick mom‖

notation in the entry for Lichtenstein‘s January 3rd absence.6

Lidey claims she did not see this particular notation when she

reviewed the log.

In their depositions, Brown and Lidey testified that

Lidey planned to terminate Lichtenstein on January 8th, the

day after Lidey returned from vacation. This plan was foiled,

however, when Lichtenstein contacted UPMC early that

morning to request leave to care for her mother. At 12:18

pm, Lichtenstein sent Lidey the following email:

I am not sure if you are aware, but my mother has been

in the hospital since Thursday [January 3rd]. I am not

sure how much longer they will keep her hospitalized.

And once she is released, she might require some

assistance. Under these circumstances and at this point

in time, I would like to, as well as need to, take a leave

of absence. Who do I speak with to aid me in this

process?

Id. at 586.

Lidey, who receives hundreds of emails a day, claims

she did not read this particular email. In fact, Lidey insists

6

Lidey also requested and received from Harris a copy of

Lichtenstein‘s staff log on January 9th as well.

9

that she terminated Lichtenstein ―before I knew anything

about her mom being ill or needing to ask for leave.‖ Id. at

335. This claim, however, is at odds with other evidence in

the record, including the fact that Lidey responded to

Lichtenstein‘s email.7 Although Lidey claims she did not

read Lichtenstein‘s email prior to replying to it, Brown

testified that Lidey told her Lichtenstein‘s mother was sick.

Id. at 424. According to Brown, ―What I recall her saying

was that Jamie was stating that she needed to be off to care

for her mother.‖ Id. Brown testified that Lidey conveyed this

information prior to Lichtenstein‘s termination.

After her termination, Lichtenstein filed a complaint

with the EEOC alleging religious discrimination. In

response, UPMC sent a position statement to the EEOC in

which it described its reasons for firing Lichtenstein.

According to this position statement:

Once Ms. Lichtenstein began working at UPMC

Braddock, she had numerous incidents of tardiness and

absenteeism. She was also a ‗nightmare‘ to schedule

according to Amy Harris, the Administrative Assistant

in charge of scheduling. Although the hospital was

willing to accommodate her school schedule, Ms.

Lichtenstein was also constantly requesting days off to

study or complete schoolwork. By January 4, 2008,

Ms. Lichtenstein had been absent three times

7

Lidey‘s reply email was not simply an automated out-of-

office reply. In the email, Lidey stated: ―I am out of the

office today, please call Amy to schedule a time that you can

come in and meet with me tomorrow [January 10th].‖ Id. at

602.

10

(including once for a sixteen hour shift) and tardy six

times. . . . Documentation regarding Ms.

Lichtenstein‘s lateness, absences and scheduling issues

is enclosed as Exhibit M.

Id. at 592. As documented in Exhibit M, one of the ―three

absences‖ referenced in the position statement was

Lichtenstein‘s absence on January 3rd. Lidey‘s late

appearance and early departure on December 30th was not

mentioned, either in Exhibit M or the position statement.

In addition to filing a claim for religious

discrimination, Lichtenstein filed a complaint under the

Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et

seq. Lichtenstein argued that her absence on January 3rd

qualified for leave under the FMLA, and that UPMC had

impermissibly considered this absence in terminating her

employment. The District Court granted UPMC‘s motion for

summary judgment and Lichtenstein filed this timely appeal.

III. LEGAL BACKGROUND8

A. STANDARD OF REVIEW

We review the District Court‘s grant of summary

judgment de novo. Sempier v. Johnson & Higgins, 45 F.3d

724, 727 (3d Cir. 1995). Summary judgment should only be

granted if ―there is no genuine dispute as to any material

fact.‖ Fed. R. Civ. P. 56(a). A dispute is genuine if a

reasonable trier-of-fact could find in favor of the non-movant.

8

The District Court had jurisdiction pursuant to 28 U.S.C. §

1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

11

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252

(1986). A dispute is material if it could affect the outcome of

the case. Id. In considering the record, we must draw all

reasonable inferences in favor of the non-moving party,

which in this case, is Lichtenstein. Matsushita Elec. Indus.

Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. FAMILY MEDICAL LEAVE ACT (FMLA)

Congress passed the FMLA in 1993 in an attempt ―to

balance the demands of the workplace with the needs of

families.‖ 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA

―entitle[s] employees to take reasonable leave for medical

reasons,‖ 29 U.S.C. § 2601(b)(2), but employees must do so

―in a manner that accommodates the legitimate interests of

employers,‖ 29 U.S.C. § 2601(b)(3). Eligible employees are

entitled to ―12 workweeks of leave during any twelve-month

period . . . [i]n order to care for the . . . parent of the

employee, if such . . . parent has a serious health condition.‖

29 U.S.C. § 2612(a)(1); see also 29 C.F.R. § 825.101(b)

(―When a family emergency arises, . . . workers need

reassurance that they will not be asked to choose between

continuing their employment, and meeting their . . . family

obligations.‖).

As indicated, eligible employees are entitled to take

FMLA if they ―care for‖ a family member with a ―serious

health condition.‖ A ―serious health condition‖ is defined as

―an illness, injury, impairment, or physical or mental

condition that involves (A) inpatient care in a hospital, . . . or

(B) continuing treatment by a health care provider.‖ 29

U.S.C. § 2611(11); see also 29 C.F.R. § 825.114 (defining

inpatient care as ―an overnight stay in a hospital‖). To ―care

12

for‖ a family member, the employee must provide either

physical or ―psychological care,‖ including ―psychological

comfort and reassurance which would be beneficial to a . . .

parent with a serious health condition who is receiving

inpatient or home care.‖ 29 C.F.R. § 825.124(a).

Even when these qualifying circumstances exist,

employees cannot invoke rights under the FMLA if they fail

to provide adequate notice of their need for leave. 29 U.S.C.

§ 2612(e). When the need for leave is unforeseeable,9

employees are obligated to notify their employer ―as soon as

practicable,‖ 29 C.F.R. § 825.303(a), and ―provide sufficient

information for an employer to reasonably determine whether

the FMLA may apply,‖ 29 C.F.R. § 825.303(b).

When employees invoke rights granted under the

FMLA, employers may not ―interfere with, restrain, or deny

the exercise of or attempt to exercise‖ these rights. 29 U.S.C.

§ 2615(a)(1). Nor may employers ―discharge or in any other

manner discriminate against any individual for opposing any

practice made unlawful.‖ 29 U.S.C. § 2615(a)(2). The

former provision is generally, if imperfectly, referred to as

―interference‖ whereas the latter is often referred to as

―retaliation.‖ Callison v. City of Philadelphia, 430 F.3d 117,

119 (3d Cir. 2005). Although neither provision expressly

forbids employers from terminating employees ―for having

9

See generally Cavin v. Honda of America Mfg., Inc. , 346

F.3d 713, 722 (6th Cir. 2003) (―The regulations suggest that

notice requirements for unforeseeable leave are more relaxed

than the requirements for foreseeable leave, in keeping with

the idea that an unforeseeable need for leave will often arise

in the context of a medical emergency.‖).

13

exercised or attempted to exercise FMLA rights,‖ a

Department of Labor regulation has interpreted the sum of the

two provisions as mandating this result. See 29 CFR §

825.220(c). Under this regulatory interpretation, employers

are barred from considering an employee‘s FMLA leave ―as a

negative factor in employment actions such as hiring,

promotions or disciplinary actions.‖10 Id. Accordingly, an

employee does not need to prove that invoking FMLA rights

10

The regulation does not specify which of the two statutory

provisions is the specific source of this prohibition. See 29

CFR § 825.220(c). Perhaps not surprisingly, therefore, courts

interpreting the regulation have reached different conclusions

on this question. See Conoshenti v. Public Serv. Elec. & Gas

Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004) (citing cases). As

with the Ninth Circuit, we have predicated liability for

retaliation based on an employee‘s exercise of FMLA rights

on the regulation itself. Id. Our discussion on this point,

however, has spurred its own share of confusion, with some

courts citing Conoshenti as specifically locating these claims

in 29 U.S.C. § 2615(a)(1). See, e.g., Phillips v. Mathews, 547

F.3d 905, 914 (8th Cir. 2008) (Colloton, J., concurring).

Adding a further wrinkle, the Department of Labor has

subsequently amended the first sentence of 29 CFR §

825.220(c) to include, inter alia, the words ―interference‖ and

―retaliating.‖ See 73 Fed. Reg. 67934, 68055 (Nov. 17,

2008); Lovland v. Emp’rs Mut. Cas. Co., 674 F.3d 806, 811

(8th Cir. 2012). Since the parties have not briefed this matter,

and because it does not affect the resolution of this appeal, we

do not resolve here whether the regulation‘s amended

language has any material impact on our reasoning in

Conoshenti.

14

was the sole or most important factor upon which the

employer acted.

IV. ANALYSIS

Although the gravamen of Lichtenstein‘s claim sounds

in retaliation, she alleges both retaliation and interference

claims. See Erdman v. Nationwide Ins. Co., 582 F.3d 500,

509 (3d Cir. 2009) (―[F]iring an employee for a valid request

for FMLA leave may constitute interference with the

employee‘s FMLA rights as well as retaliation against the

employee.‖). As will be seen, both claims are closely

intertwined.

A. RETALIATION

To prevail on a retaliation claim under the FMLA, the

plaintiff must prove that (1) she invoked her right to FMLA-

qualifying leave, (2) she suffered an adverse employment

decision, and (3) the adverse action was causally related to

her invocation of rights. See Erdman, 582 F.3d at 508–09

(modifying Conoshenti, 364 F.3d at 146). Because FMLA

retaliation claims require proof of the employer‘s retaliatory

intent, courts have assessed these claims through the lens of

employment discrimination law. Accordingly, claims based

on circumstantial evidence have been assessed under the

burden-shifting framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), while claims based on

direct evidence have been assessed under the mixed-motive

framework set forth in Price Waterhouse v. Hopkins, 490

15

U.S. 228, 276–77 (1989) (O‘Connor, J., concurring). See

Conoshenti, 364 F.3d at 147.11

Although some courts have recently questioned the

viability of mixed-motive claims under the FMLA in the

wake of Gross v. FBL Financial Services, Inc., 129 S. Ct.

2343, 2349 (2009),12 the only federal court of appeals to rule

on the issue has held that Gross does not preclude FMLA

mixed-motive claims. See Hunter v. Valley View Local Sch.,

579 F.3d 688, 692 (6th Cir. 2009). The Department of Labor

has taken a similar position, stating its view in an amicus

brief that the FMLA continues to allow mixed-motive claims.

See Brief for the Sec‘y of Labor as Amicus Curiae in Support

of Plaintiff-Appellant, Breeden v. Novartis Pharm. Corp., 646

F.3d 43 (D.C. Cir. 2011) (Nos. 10-7073; 10-7078). Although

Lichtenstein calls on us to apply the mixed-motive framework

11

Although this Court has not specifically ruled that

McDonnell Douglas applies to FMLA-retaliation claims

based on circumstantial evidence, this is implied by our

application of Price Waterhouse to claims based on direct

evidence, Conoshenti, 364 F.3d at 147, and is the prevailing

rule of the federal courts, see, e.g., Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 331–32 (1st

Cir. 2005); Potenza v. City of New York, 365 F.3d 165, 167–

68 (2d Cir. 2004); King v. Preferred Technical Grp., 166 F.3d

887, 891 (7th Cir. 1999).

12

See, e.g., Twigg v. Hawker Beechcraft Corp., 659 F.3d 987,

1004 (10th Cir. 2011) (―In light of the recent decision of the

United States Supreme Court in Gross . . . there is a

substantial question whether a mixed motive analysis would

apply in a retaliation claim under the FMLA.‖).

16

to her retaliation claim, she readily survives summary

judgment under the more taxing McDonnell Douglass

standard. Accordingly, we proceed under McDonnell

Douglass and leave for another day our resolution of whether

the FMLA continues to allow mixed-motive claims in the

wake of Gross.

Under the McDonnell Douglass framework,

Lichtenstein has the initial burden of establishing a prima

facie case. To do so, she must point to evidence in the record

sufficient to create a genuine factual dispute about each of the

three elements of her retaliation claim: (a) invocation of an

FMLA right, (b) termination, and (c) causation. See Erdman,

582 F.3d at 508–09; Conoshenti, 364 F.3d at 146. If

Lichtenstein can do so, the burden of production shifts to

UPMC to ―articulate some legitimate, nondiscriminatory

reason‖ for its decision. McDonnell Douglass, 411 U.S. at

802. If UPMC meets this minimal burden, Lichtenstein

―must point to some evidence, direct or circumstantial, from

which a factfinder could reasonably . . . disbelieve [UPMC‘s]

articulated legitimate reasons.‖ Fuentes v. Perskie, 32 F.3d

759, 764 (3d Cir. 1994).

In its ruling below, the District Court granted summary

judgment to UPMC based on its conclusions that Lichtenstein

(1) failed to establish the invocation (i.e., notice) and

causation prongs of the prima facie case, and (2) failed to

identify evidence casting reasonable doubt on UPMC‘s

proffered justification for her termination. See Lichtenstein v.

Univ. of Pittsburgh Med. Ctr., 805 F. Supp. 2d 190, 205–11

(W.D. Pa. 2011). We will address each of these issues in

turn, beginning with notice.

17

1. Notice13

To invoke rights under the FMLA, employees must

provide adequate notice to their employer about their need to

take leave. 29 U.S.C. § 2612(e)(2). In doing so, the

employee ―need not expressly assert rights under the FMLA

or even mention the FMLA.‖ 29 C.F.R. § 825.303(b). When

the leave is unforeseeable, the employee‘s obligation is to

―provide sufficient information for an employer to reasonably

determine whether the FMLA may apply to the leave

request.‖ Id. (emphasis added). As we have previously

noted, this is not a formalistic or stringent standard. See

Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402

(3d Cir. 2007) (stating that the statutory and regulatory text

suggests a ―liberal construction‖ be given to FMLA‘s notice

requirement); see also Rask v. Fresenius Med. Care N. Am.,

509 F.3d 466, 477 (8th Cir. 2007) (―The regulations already

make it very easy for [an employee] to give notice of her

intent to take leave.‖); Burnett v. LFW Inc., 472 F.3d 471, 478

13

Our reference to UPMC in this section is limited to the three

corporate defendants, as Lidey was not a party to

Lichtenstein‘s phone conversation with the nursing supervisor

on January 3rd and there is no evidence that she was aware of

the exact information Lichtenstein conveyed. She later

learned, however, from both the staff log and Lichtenstein‘s

email to her, that Lichtenstein‘s mother had been hospitalized

on January 3rd and that Lichtenstein had called off on the

same day to be with her ―sick mom.‖ As set forth in our

discussion of causation below, there is a genuine factual

dispute as to whether Lidey had sufficient notice of

Lichtenstein‘s FMLA leave prior to the time of the

termination.

18

(7th Cir. 2006) (―The notice requirements of the FMLA are

not onerous.‖).

While the FMLA ―does not require an employer to be

clairvoyant,‖ Brenneman v. MedCentral Health Sys., 366

F.3d 412, 428 (6th Cir. 2004), this does not mean that

employees need to provide every detail necessary for the

employer to verify if the FMLA applies. See, e.g., Ruble v.

Am. River Transp., 799 F. Supp. 2d 1017, 1025 (E.D. Mo.

2011) (―Plaintiff was not required to provide all the details

necessary to show he was entitled to FMLA leave.‖). This

conclusion is dictated by the language of 29 C.F.R. §

825.303(a), which provides that ―where the employer does

not have sufficient information about the reason for an

employee‘s use of leave, the employer should inquire further

of the employee . . . to ascertain whether leave is potentially

FMLA-qualifying‖ (emphasis added). The regulations thus

clearly envision situations where an employee can satisfy her

notice obligation without providing enough detailed

information for the employer to know if FMLA actually

applies. Accordingly, the ―critical test‖ is not whether the

employee gave every necessary detail to determine if the

FMLA applies, but ―how the information conveyed to the

employer is reasonably interpreted.‖ Sarnowski, 510 F.3d at

402. How the employee‘s notice is reasonably interpreted is

generally a question of fact, not law.14 Murphy v. FedEx

14

There are cases, of course, where the undisputed facts are

such that ―no rational trier of fact could conclude‖ that the

employee‘s notice was adequate. See, e.g., Satterfield v. Wal-

Mart Stores, Inc., 135 F.3d 973, 980–81 (5th Cir. 1998). In

such cases, the adequacy of notice can be determined as a

matter of law.

19

Nat’l. LTL, Inc., 618 F.3d 893, 903 (8th Cir. 2010); Burnett,

472 F.3d at 479; Hopson v. Quitman Cnty. Hosp. & Nursing

Home, Inc., 126 F.3d 635, 640 (5th Cir. 1997); Cavaliere v.

Advertising Specialty Institute Inc., --- F.Supp.2d ---, 2012

WL 525891, at *12 (E.D. Pa. Feb. 16, 2012); Zawadowicz v.

CVS. Corp., 99 F. Supp. 2d 518, 529 (D.N.J. 2000); THIRD

CIRCUIT MODEL JURY INSTRUCTIONS–CIVIL § 10.1.1 (2011).

But see Cavin, 346 F.3d at 723 (stating Sixth Circuit‘s view

that adequacy of notice is a question of law). Under the

circumstances of this case, we believe that the adequacy of

Lichtenstein‘s notice is a question of fact.

We begin by noting several facts that are not in

dispute. First, Lichtenstein‘s mother suffered a sudden,

severe, and unexpected health condition on January 3, 2008

that required staying at the hospital for over a week. As such,

Lichtenstein‘s mother suffered a ―serious health condition‖

that entitled Lichtenstein to take FMLA leave on January 3rd.

See 29 U.S.C. § 2611(11) (defining ―serious health condition‖

as a physical condition that requires ―inpatient care‖); 29

C.F.R. § 825.114 (defining ―inpatient care‖ as ―an overnight

stay in a hospital‖). Second, Lichtenstein correctly followed

UPMC‘s call-off procedure by calling UPMC‘s nursing

supervisor soon after arriving at the emergency room. This is

sufficient to establish a genuine dispute about whether

Lichtenstein notified UPMC ―as soon as [was] practicable

under the facts and circumstances.‖15 29 C.F.R. § 825.303(a).

15

Although UPMC argues in its brief that Lichtenstein failed

to give ―advance notice‖ of her leave, br. at 34, this is belied

by the unforeseeable nature of the emergency and UPMC‘s

previous admissions that Lichtenstein followed proper

procedure by calling the nursing supervisor when she did.

20

Finally, during Lichtenstein‘s telephone call with the nursing

supervisor, Lichtenstein conveyed the following facts: (1) she

was ―currently in the emergency room,‖ (2) her ―mother had

been brought into the hospital via ambulance,‖ and (3) she

―would be unable to work that day‖ (emphases added).

(a) “Serious Health Condition”

The District Court concluded that Lichtenstein

conveyed insufficient information to the nursing supervisor to

place UPMC on notice. According to the District Court, the

information was inadequate because ―the fact that a family

member has been taken to the emergency room does not

necessarily reflect a serious medical condition sufficient to

support a request for leave under the FMLA.‖ Lichtenstein,

805 F. Supp. 2d at 203 (emphasis added). ―While the

condition precipitating an emergency room visit may be

serious,‖ the District Court reasoned that ―the condition might

not require ongoing hospitalization or medical treatment.‖ Id.

(emphases added). In so reasoning, the District Court

answered the wrong question. The question is not whether

the information conveyed to the employer necessarily rules

out non-FMLA scenarios. The question is whether the

information allows an employer to ―reasonably determine

whether the FMLA may apply.‖ 29 C.F.R. § 825.303(b)

(emphases added). Reasonableness does not require

certainty, and ―may‖ does not mean ―must.‖ It does not

matter that a person rushed by ambulance to the emergency

room ―might not‖ require inpatient care as defined under the

FMLA. Since many people in this situation do require such

21

care, a jury might find that reasonable notice was given under

the circumstances.16

Finally, in considering the adequacy of Lichtenstein‘s

notice, we find it instructive to compare the information she

conveyed with the guidance provided in 29 C.F.R. §

825.303(b).17 According to this regulation, an employee

16

Despite the dissent‘s characterization to the contrary, our

reasoning here does not dictate that a question of fact

necessarily exists whenever an employee ―calls out from

work saying she needs to go to the hospital.‖ Lichtenstein did

not merely give a generic reference about going to a hospital;

she specifically told UPMC that her mother had been taken to

the emergency room in an ambulance. As common sense

would suggest, people rushed to the emergency room in an

ambulance are generally in a more serious health situation

than people who go on their own accord. In fact, data from

the United States indicate that about forty percent of people

taken to the emergency room in an ambulance are admitted

for inpatient care, versus just ten percent of those who ―walk

in.‖ See Gregory Luke Larkin, et al., National Study of

Ambulance Transports to United States Emergency

Departments: Importance of Mental Health Problems, 21

PREHOSPITAL & DISASTER MED. 82, 85 tbl.1 (2006). We are

not presented, therefore, with the kind of vague, generic

reference to a ―hospital‖ in which the likelihood of a serious

health condition is merely conceivable but not sufficiently

likely to warrant shifting the burden of inquiry onto the

employer.

17

The Department of Labor has described this regulation as

―provid[ing] additional guidance for employees regarding

22

whose family member has a serious health condition may

provide adequate notice by stating that the ―family member is

under the continuing care of a health care provider,‖ or, that

the family member has a condition that renders her ―unable to

perform daily activities.‖ Id. A trier-of-fact could reasonably

conclude that the information conveyed by Lichtenstein did

both. Lichtenstein stated that her mother was still at the

hospital, which implies ―continuing care,‖18 and it could be

reasonably inferred that a person brought by ambulance to an

emergency room and remaining at the hospital is ―unable to

perform daily activities.‖

Of course, a trier-of-fact could also consider

Lichtenstein‘s failure to provide any further information to

UPMC about her mother‘s condition when she returned to

work the very next day. Lichtenstein was not necessarily

obligated, however, to provide additional information. The

regulations state that if an employee‘s initial notice

reasonably apprises the employer that FMLA may apply, it is

the employer‘s burden to request additional information if

what is ‗sufficient information‘‖ to constitute notice. U.S.

Dep‘t of Labor, Frequently Asked Questions and Answers

About the Revisions to the Family and Medical Leave Act,

http://www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.ht

m (last visited July 9, 2012).

18

Since the regulation refers to ―continuing care‖ rather than

―continuing treatment,‖ the DOL‘s definition of ―continuing

treatment‖ is not necessarily applicable. See 29 C.F.R. §

825.115(a) (stating that ―continual treatment‖ requires ―[a]

period of incapacity of more than three consecutive, full

calendar days‖).

23

necessary. 29 C.F.R. § 825.303(a). Thus, since we believe

there is a genuine dispute about whether Lichtenstein‘s phone

call to the nursing supervisor met this standard, her failure to

provide further information on the following day at work does

not defeat her claim at this stage.

(b) “To Care For”

UPMC contends that Lichtenstein‘s notice was

deficient because it failed to provide sufficient information

from which UPMC could infer she would ―care for‖ her

mother. UPMC‘s arguments on this issue wholly miss the

point. As previously stated, FMLA regulations define the

term ―to care for‖ as ―encompass[ing] both physical and

psychological care,‖ including the provision of

―psychological comfort and reassurance which would be

beneficial to a . . . parent with a serious health condition who

is receiving inpatient or home care.‖ 29 C.F.R. § 825.124(a).

We assess the adequacy of Lichtenstein‘s notice, therefore, by

considering whether UPMC could have reasonably inferred

she would provide ―psychological comfort and reassurance‖

to her mother.

UPMC claims that Lichtenstein ―provided no

indication that she was needed to care for her mother—only

that her mother had been transported to the hospital.‖ Br. at

36. It is undisputed, however, that Lichtenstein told UPMC

she was ―currently in the emergency room‖ with her mother

and ―unable to work that day.‖ A reasonable fact-finder

could infer from these statements that Lichtenstein was

asking for leave to care for her mother. UPMC implicitly

conceded this point at oral argument when it stated that

staying and caring for one‘s mother under such circumstances

24

―would be a natural thing to do.‖ If it was ―a natural thing to

do,‖ it was certainly reasonable for UPMC to infer. It matters

not that UPMC received no ―doctor‘s opinion or report that

the mother for some emotional reasons required the presence

of the plaintiff at the hospital.‖ An employer does not need a

doctor‘s report to realize that a person rushed to the hospital

in an ambulance will likely receive ―psychological comfort

and reassurance‖ by the presence of their loved ones. See

Fioto v. Manhattan Woods Golf Enterprises, LLC, 270

F.Supp.2d 401, 405 (S.D.N.Y. 2003) (―By the very terms of

the FMLA regulations, a child‘s offering comfort and

reassurance to a bedridden parent qualifies as ‗caring for‘ the

parent.‖).

Similarly it does not matter that UPMC did not know

if Lichtenstein was an ―only child,‖ or if there were ―other

family members‖ at the hospital.19 The FMLA regulations

expressly state that ―[t]he employee need not be the only

individual or family member available to care for the family

member.‖ 29 CFR § 825.124(b); see also Romans v. Mich.

Dep’t of Human Servs., 668 F.3d 826, 840–41 (6th Cir. 2012)

(stating that ―plain language of the regulations‖ entitles an

employee to FMLA leave even when other relatives are

available to care for the sick family member).

19

At oral argument, UPMC argued that it could not have been

expected to know that Lichtenstein would take care of her

mother because ―there‘s no evidence in this record that the

plaintiff is an only child, that there‘s no other family members

there, who else was at the hospital to give nurture, or any of

that type of information.‖

25

Finally, there is no merit to UPMC‘s argument that

Lichtenstein‘s January 8th letter made it reasonable for

UPMC to infer that Lichtenstein did not provide care for her

mother on January 3rd. The logic of UPMC‘s argument is as

follows: (A) since Lichtenstein‘s January 8th letter stated that

she needed to care for her mother after her mother left the

hospital, ergo (B) ―she wasn‘t needed to care for her mother

while her mother was in the hospital.‖ There is nothing

inherently contradictory, however, about asking to care for

one‘s seriously ill parent both during and after their hospital

stay. Indeed, the FMLA regulations expressly define ―to care

for‖ as including both care provided at home and the hospital.

See 29 C.F.R. § 825.124(a) (stating that care includes

―providing psychological comfort and reassurance which

would be beneficial to a . . . parent with a serious health

condition who is receiving inpatient or home care‖ (emphases

added)). UPMC‘s logic thus relies on a cramped notion of

what it means ―to care for‖ under the FMLA.

For the reasons stated, a genuine factual dispute exists

about whether Lichtenstein provided adequate notice to

timely and reasonably apprise UPMC that the FMLA may

apply to her request for leave. A trier-of-fact considering this

question would be entitled to consider the ―totality of the

circumstances,‖ Rynders v. Williams, 650 F.3d 1188, 1196

(8th Cir. 2011), including—but not limited to—evidence

shedding light on Lichtenstein‘s credibility and Lichtenstein‘s

pattern of conduct during and following January 3rd,

including her failure to mention her mother‘s condition when

she returned to work on January 4th as well as her email to

Lidey on January 8th.

26

2. Causation

Having determined that a genuine factual dispute

exists with respect to the notice prong of Lichtenstein‘s prima

facie case, we now consider the question of causation. To

demonstrate a prima facie case of causation, Lichtenstein

must point to evidence sufficient to create an inference that a

causative link exists between her FMLA leave and her

termination. See Farrell v. Planters Lifesavers Co., 206 F.3d

271, 279–81 (3d Cir. 2000). When the ―temporal proximity‖

between the protected activity and adverse action is ―unduly

suggestive,‖ this ―is sufficient standing alone to create an

inference of causality and defeat summary judgment.‖

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217,

232 (3d Cir. 2007). ―Where the temporal proximity is not

‗unusually suggestive,‘ we ask whether ‗the proffered

evidence, looked at as a whole, may suffice to raise the

inference.‘‖ Id. (quoting Farrell, 206 F.3d at 280).

Here, Lichtenstein was terminated on January 10th,

just seven days after she invoked her right to FMLA leave,

and just three days after Lidey returned from vacation. Had

things gone according to UPMC‘s plan, even less time would

have elapsed. Both Lidey and Brown testified that Lidey‘s

plan was to fire Lichtenstein on January 8th (the first day

Lidey and Lichtenstein were scheduled to work the same shift

following Lidey‘s return from vacation). ―Although there is

no bright line rule as to what constitutes unduly suggestive

temporal proximity,‖ id. at 233, the temporal proximity in this

case is in the realm of what this Court and others have found

sufficient at the prima facie stage, see, e.g., Jalil v. Avdel

Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding two days

unduly suggestive); Seeger v. Cincinnati Bell Tel. Co., 681

27

F.3d 274, 283 (6th Cir. 2012) (three weeks); Wierman v.

Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (four

days); cf. McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir.

2008) (five days in Title VII retaliation case).

Even if the temporal proximity in this case is not

unduly suggestive, there is other evidence from which an

inference of causation can be drawn. UPMC‘s position

statement to the EEOC, for example, specifically listed

Lichtenstein‘s January 3rd leave as one of her three absences.

Since UPMC‘s position statement stated that Lichtenstein‘s

attendance problems were one of the reasons it terminated

Lichtenstein, a trier-of-fact could infer that UPMC considered

Lichtenstein‘s January 3rd absence as a negative factor in its

termination decision. This inference is supported by other

evidence in the record. Specifically, when Lidey returned to

work on January 7th, she responded to Krautz‘s email (the

one in which Krautz reported Lichtenstein‘s call-off on

January 3rd) by requesting Lichtenstein‘s call-off records

from Harris. From this, a trier-of-fact could infer that Lidey‘s

decision to request Lichtenstein‘s call-off records, and ergo

Lidey‘s decision that day to terminate Lichtenstein, was

triggered by Lidey learning of the January 3rd absence.

We recognize that since Krautz‘s email made no

mention of Lichtenstein‘s reason for calling off, it does not

necessarily follow that Lidey knew Lichtenstein‘s absence

was likely protected under the FMLA. Cf. Moore v. City of

Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006) (―To the

extent that [Title VII plaintiff] relies upon the brevity of the

time periods between the protected activity and alleged

retaliatory actions to prove causation, he will have to show as

well that the decision maker had knowledge of the protected

28

activity.‖ (internal citations omitted)). There is other

evidence in the record, however, from which this inference

could reasonably be drawn. See Cavaliere, 2012 WL 525891,

at *12 (finding plaintiff‘s circumstantial evidence sufficient to

infer decision maker‘s awareness of her FMLA leave). Most

tellingly, Lidey received a personal email from Lichtenstein

the following day which explicitly stated that Lichtenstein‘s

mother had been hospitalized on January 3rd and had

remained hospitalized ever since. Moreover, Lichtenstein‘s

staff log—which Lidey requested and received from Harris

on both January 7th and 9th—included a notation that

Lichtenstein missed work on the 3rd because of her ―sick

mom.‖ Taken together, these two facts provide a sufficient

basis from which to infer that by the time Lidey terminated

Lichtenstein, she was on notice that Lichtenstein‘s January

3rd absence may be protected under the FMLA.

Although Lidey now claims she never read

Lichtenstein‘s email nor saw the ―sick mom‖ notation on the

staff log, a reasonable trier-of-fact could find these claims

unworthy of credence. First, Lidey did not merely receive

Lichtenstein‘s email; she replied to it. Second, Lidey did not

merely receive the staff log, she specifically requested it—not

once, but twice. Third, Lidey‘s insistence that she did not

know of Lichtenstein‘s mother‘s illness20 is directly

20

In her deposition, Lidey stated: ―I terminated Jamie by

telephone [on January 10, 2008] before I knew anything

about her mom being ill or needing to ask for leave.‖ App. at

335. When confronted with the email she received from

Lichtenstein that contained this information, Lidey testified,

―I did not see that.‖ Id. When confronted with the fact that

she twice requested and received Lichtenstein‘s staff log

29

contradicted by Brown‘s deposition. According to Brown:

―What I recall [Lidey] saying was that Jamie was stating that

she needed to be off to care for her mother.‖ App. at 424.

Thus, even if there is insufficient evidence to show Lidey‘s

knowledge of Lichtenstein‘s protected activity when she

returned to work on January 7th, any benefit of this ignorance

was lost when Lidey received Lichtenstein‘s email the next

day.21 See Brungart v. BellSouth Telecomm., Inc., 231 F.3d

791, 799 (11th Cir. 2000) (―[T]he plaintiff must generally

show that the decision maker was aware of the protected

conduct at the time of the adverse employment action.‖

(emphasis added)).

In its brief, UPMC argues that any inference of

causation is defeated by Lidey‘s claim that she decided to

terminate Lichtenstein prior to January 3rd. This argument is

unavailing because, as discussed below in our analysis of

pretext, Lichtenstein has established a genuine dispute about

the date of UPMC‘s termination decision and whether it

occurred before or after January 3rd.22 UPMC claims, for

(which contained the note about Lichtenstein‘s mother being

sick on January 3rd), Lidey responded, ―[i]t doesn‘t mean that

I looked at that, and I was, I don‘t believe I looked at it at that

point in time.‖ Id.

21

Although Lichtenstein‘s email did not specifically state that

she missed work on January 3rd because of her mother‘s

hospitalization, Lidey was aware from the staff log that

Lichtenstein‘s January 3rd absence was a result of her mom

being sick.

22

A similar limitation applies to the District Court‘s causation

analysis, the conclusion of which was dictated by its finding

30

example, that Lidey decided to fire Lichtenstein for arriving

late and leaving early on December 30th. UPMC‘s position

statement to the EEOC, however, made no mention of this

incident as a factor in its decision, and Lidey could not even

recall when she learned about it. A trier-of-fact could infer

from this that UPMC did not discover the December 30th

incident until sometime after Lichtenstein‘s termination. A

post hoc ground for termination, while potentially relevant to

the calculation of damages, is ―irrelevant‖ to the question of

causation. Brenneman, 366 F.3d at 416 n.2. Accordingly, at

this stage, UPMC does not benefit from the principle that

employers need not suspend plans to discipline an employee

upon discovering that said employee engaged in protected

activity on matters unrelated to the contemplated action. See

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)

(establishing this principle in the Title VII context); Salameh

v. Sears Holding Mgt. Corp., No. 08 C 4372, 2010 WL

183361 (N.D. Ill. Jan. 13, 2010) (applying principle to the

FMLA context).

For all of the abovementioned reasons, we believe

Lichtenstein has presented sufficient evidence to establish a

that Lichtenstein had not invoked her right to FMLA leave on

January 3rd. Since this removed Lichtenstein‘s January 3rd

absence from FMLA‘s protections, the District Court

regarded any and all considerations of this absence irrelevant

to causation. Thus, because ―the wheels of [Lichtenstein‘s]

termination were already in motion‖ by January 8th, the

District Court concluded that Lichtenstein failed to

demonstrate a causative link. Lichtenstein, 805 F. Supp. 2d at

213.

31

prima facie case of causation. This evidence, when drawing

all reasonable inferences in Lichtenstein‘s favor, is sufficient

for a fact-finder to conclude: (1) Lidey‘s decision to terminate

Lichtenstein was triggered by the January 3rd absence; (2)

prior to terminating Lichtenstein, Lidey learned that the

January 3rd absence was likely taken for an FMLA-

qualifying reason; and (3) by proceeding with the termination,

Lidey considered Lichtenstein‘s FMLA activity a ―negative

factor‖ that further justified the termination.

3. Pretext

We now address the legitimate, non-discriminatory

reasons that UPMC has articulated for terminating

Lichtenstein and consider whether Lichtenstein has

established reasonable doubt that this proffered justification is

mere pretext for retaliation.

According to UPMC, Lichtenstein was terminated

because of her chronic tardiness and absenteeism, with the

―last straw‖ being her late appearance and early departure on

December 30th. Br. at 43. Specifically, UPMC states that:

[T]he decision to terminate Plaintiff‘s employment

was made after Plaintiff, despite being expressly told

that she was to report for her scheduled shift on

December 30, 2007, decided to make her own

schedule by arriving very late and leaving very early.

In fact, the decision was made prior to Ms. Lidey

leaving the office for vacation on December 30, 2007.

Indeed, Ms. Lidey spoke to Helene Brown about the

decision to terminate Plaintiff prior to January 1, 2008

32

and Ms. Brown concurred in that decision.

Id. at 15 (internal citations omitted). UPMC thus claims that

―[n]either the January 3, 2008 nor January 8, 2008 absences

were taken into account‖ in the termination decision. Id.

In order to demonstrate that UPMC‘s proffered

justification for terminating her is merely pretextual,

Lichtenstein ―must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably . . .

disbelieve the employer‘s articulated legitimate reasons.‖

Fuentes, 32 F.3d at 764. To do so, Lichtenstein ―must

demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in [UPMC‘s]

proffered legitimate reasons for its actions that a reasonable

factfinder could rationally find them ‗unworthy of credence.‘‖

Id. at 765. Notwithstanding the District Court‘s conclusion to

the contrary, we believe Lichtenstein has met this burden. To

begin with, Lichtenstein has presented evidence that

contradicts UPMC‘s two key assertions that (1) the December

30th incident was the ―final‖ straw that triggered

Lichtenstein‘s termination, and (2) Lidey made the

termination decision prior to Lichtenstein‘s absence on

January 3rd.

First, while UPMC claims that the December 30th

incident was the ―final straw‖ triggering Lichtenstein‘s

termination, a trier-of-fact could reasonably infer that UPMC

was not even aware of this incident prior to terminating

Lichtenstein. This inference can be drawn from the following

evidence: (A) Lidey could not recollect when she first learned

about the December 30th incident, (B) UPMC did not cite the

incident as a factor in the termination decision in its

33

explanation to the EEOC; and (C) the incident was not

included in Lichtenstein‘s staff log that Lidey can be inferred

to have reviewed prior to firing her.

Second, the only evidence showing Lidey decided to

fire Lichtenstein prior to going on leave is Lidey‘s own

testimony. This is important because Lidey contradicted

herself on this very point. At least twice during her

deposition Lidey stated that she couldn‘t recall if she made

the termination decision prior to going on vacation.

Similarly, although Lidey stated that she always spoke with

Brown prior to firing an employee, she testified at least three

times during her deposition that she could not recall if she

spoke with Brown before or after going on vacation. These

contradictions go to the very core of UPMC‘s proffered

reason for terminating Lichtenstein. They also ―raise

suspicions‖ about Lidey‘s credibility. See Bray v. Marriott

Hotels, 110 F.3d 986, 990 (3d Cir. 1997) (―An inference of

pretext may arise if the plaintiff can raise suspicions with

respect to the defendant's credibility . . . .‖). Not only did

Lidey repeatedly contradict herself on the timing of her

decision, substantial evidence contradicts her assertion that

she did not know Lichtenstein‘s mother was ill.23 Since

23

This evidence includes: (1) Brown‘s testimony that Lidey

told her about Lichtenstein‘s mother‘s illness prior to

terminating Lichtenstein, (2) Lidey‘s request and receipt of

Lichtenstein‘s staff log in which the words ―sick mom‖ were

clearly written in the entry for the January 3rd absence, and

(3) Lidey‘s receipt of and reply to Lichtenstein‘s email in

which Lichtenstein had discussed her mother‘s

hospitalization.

34

Lidey‘s testimony is the only evidence showing that the

termination decision was made prior to January 3rd, a trier-

of-fact would be justified in giving this evidence little

evidentiary weight.

In the opinion below, however, the District Court

reasoned that Lidey‘s contradictions were immaterial because

they merely pertained to the timing of UPMC‘s decision (i.e.,

whether Lidey made the decision before or after she went on

vacation), not to her proffered justification for doing so (i.e.,

Lichtenstein‘s attendance and scheduling problems).

According to the District Court, ―Ms. Lidey‘s testimony does

not offer inconsistent reasons for Ms. Lichtenstein‘s

termination; the reason is consistently her attendance and

scheduling problems.‖24 Lichtenstein, 805 F. Supp. 2d at 209.

The District Court‘s reasoning is flawed. The question is not

whether UPMC discharged Lichtenstein for absenteeism and

tardiness; the question is whether Lichtenstein‘s FMLA-

qualifying leave on January 3rd was a ―negative factor‖ that

hastened her termination. 29 CFR § 825.220(c); see also

Cavin, 346 F.3d at 726 (―[A] termination based only in part

on an absence covered by the FMLA, even in combination

with other absences, may still violate the FMLA.‖ (internal

quotation marks omitted)). The timing of UPMC‘s decision

is thus critical to determining whether UPMC relied solely on

the pre-January 3rd incidents, or whether it also considered

the January 3rd absence as an additional negative factor.

24

The District Court reasoned that Lidey‘s testimony ―is not

so much inconsistent as it is vague as to the date on which

certain events took place three years earlier.‖ Lichtenstein,

805 F. Supp. 2d at 209.

35

The importance of timing to the question of pretext

was illustrated by the Seventh Circuit in Kohls v. Beverly

Enterprises Wisconsin, Inc., 259 F.3d 799 (7th Cir. 2001). In

Kohls, the employee engaged in behavior prior to taking

FMLA leave that was clearly sufficient to warrant her

termination. 259 F.3d at 805. The Seventh Circuit noted,

however, that there was ―an additional twist‖ to the case

because the employer ―did not decide to fire Kohls until some

time after she took leave.‖ Id. This was important, the

Seventh Circuit explained, because:

We can imagine circumstances in which the timing of

this decision could lead a fact finder to infer that the

employee would not have been fired absent her taking

of leave (if, for example, a supervisor who had been

aware of problems with an employee did not decide to

fire the employee until she took leave, and the

supervisor based the firing on the incidents of which

the employer had already been aware).

Id. at 806. Although the Seventh Circuit affirmed summary

judgment for the employer, it did so because the record was

―clear‖ that ―the employer did not discover many of the

deficiencies in [the employee‘s] work . . . until after [the

employee] took leave.‖ Id. (emphases added).

As with the employee in Kohls, Lichtenstein engaged

in behavior that was undoubtedly sufficient for UPMC to

terminate her employment (i.e., attendance and scheduling

problems during a probationary period in which a progressive

disciplinary policy did not apply). In sharp contrast,

however, to the situation in Kohls, the record here is clear

(with the exception of the December 30th incident) that

36

UPMC was aware of Lichtenstein‘s performance deficiencies

prior to her taking leave on January 3rd. Despite this

knowledge, UPMC did not fire Lichtenstein until after she

took her January 3rd leave. Although UPMC insists that the

timing can be explained by the simple fact that Lidey left for

vacation on December 31st and did not have an opportunity

to fire Lichtenstein prior to January 3rd, Lidey‘s own

testimony raises significant doubts about this explanation.

Indeed, Lidey herself could not remember when she made the

decision to terminate Lidey, nor could she remember when

she learned of the December 30th incident that purportedly

prompted this decision.

We believe, therefore, that Lichtenstein has met her

burden of demonstrating pretext because, as per the Seventh

Circuit‘s reasoning, ―the timing of [UPMC‘s] decision could

lead a fact finder to infer that [Lichtenstein] would not have

been fired absent her taking of leave.‖ Id.; accord Moorer v.

Baptist Mem’l Health Care Sys., 398 F.3d 469, 488–90 (6th

Cir. 2005) (―The record . . . shows that [the employer] was

aware of many of Moorer‘s alleged performance deficiencies

prior to his FMLA leave, thereby casting doubt on the timing

of the purported reasons for his termination.‖).

B. INTERFERENCE

By terminating her employment for having invoked

her right to FMLA leave, Lichtenstein argues UPMC

unlawfully interfered with her rights in violation of 29 U.S.C.

§ 2615(a)(1). See Erdman, 582 F.3d at 509 (―[F]iring an

employee for a valid request for FMLA leave may constitute

interference with the employee‘s FMLA rights as well as

37

retaliation against the employee.‖).25 To prevail on her

interference claim, Lichtenstein must show (1) she was

entitled to take FMLA leave on January 3rd and/or January

8th, and (2) UPMC denied her right to do so. See Callison,

430 F.3d at 119.

In proving that UPMC interfered with her rights,

Lichtenstein does not need to prove that UPMC acted with

discriminatory intent. Sommer v. The Vanguard Group, 461

F.3d 397, 399 (3d Cir. 2006); Callison, 430 F.3d at 120. The

FMLA, however, ―does not provide employees with a right

against termination for a reason other than interference with

rights under the FMLA.‖ Sarnowski, 510 F.3d at 403.

25

It is not clear to us that Erdman necessarily guarantees that

plaintiffs have an automatic right to claim interference where,

as here, the claim is so clearly redundant to the retaliation

claim. In recent years, several federal courts of appeals have

affirmed dismissal of interference claims that— although not

necessarily analogous to Lichtenstein‘s claim here—were

duplicative of the plaintiffs‘ retaliation claims. E.g., Lovland,

674 F.3d at 811–12; Seeger v. Cincinnati Bell Telephone Co.,

681 F.3d 274, 282–83 (6th Cir. 2012); Stallings v. Hussmann

Corp., 447 F.3d 1041, 1051 (8th Cir. 2006); see also Atchison

v. Sears, 666 F. Supp. 2d 477, 489 (E.D. Pa. 2009)

(―[Plaintiff‘s] interference claim is identical to his retaliation

claim, and premised on the same allegation . . . . He cannot

escape the McDonnell Douglas analysis to prove his case

merely by affixing an ‗interference‘ label to one of his

duplicative claims. Thus, [plaintiff‘s] FMLA violation

allegations should be analyzed as a retaliation claim.‖). Since

this issue was not raised below nor presented on appeal, we

do not address it here.

38

UPMC, therefore, can defeat Lichtenstein‘s claim if it can

demonstrate that Lichtenstein was terminated for reasons

―unrelated to‖ her exercise of rights. Id.; accord Ballato v.

Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012) (―If there

exists a showing of interference, the burden shifts to the

employer to prove there was a reason unrelated to the

employee‘s exercise of FMLA rights for terminating the

employee.‖); Michniewicz v. Metasource, LLC, 756

F.Supp.2d 657, 666 (E.D. Pa. 2010) (―The employee bears the

initial burden of showing both elements of the interference

claim, and then the burden shifts to the employer . . . .‖).

Whether or not UPMC will be able to meet its burden, we

have no trouble concluding—for the reasons set forth in our

retaliation analysis above—that Lichtenstein has met her

burden at this stage in the litigation.

V. CONCLUSION

For the foregoing reasons, we will vacate the District

Court‘s grant of summary judgment to UPMC on both the

retaliation and interference claims and remand to the District

Court for proceedings consistent with this opinion.

39

AMBRO, Circuit Judge, Dissenting

Pursuant to the Family and Medical Leave Act of 1993

(“FMLA”), 29 U.S.C. § 2601 et seq., an employee may

qualify for unforeseen FMLA leave only by providing an

employer with notice that contains “sufficient information for

an employer to reasonably determine whether the FMLA may

apply to the leave request.” 29 C.F.R. § 825.303(c).

Congress included this notice requirement in order to balance

the employee’s entitlement to “reasonable leave” with the

“legitimate interests of employers.” 29 U.S.C. § 2601(b)(2);

see Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 951

(7th Cir. 2004) (Posner, J.) (“Conditioning the right to take

FMLA leave on the employee’s giving the required notice to

his employer is the quid pro quo for the employer’s partial

surrender of control over his work force.”). In keeping with

the purpose and language of the FMLA, I would hold as a

matter of law that Ms. Lichtenstein failed to provide adequate

notice that the FMLA applied to her January 3, 2008 absence,

and I would affirm the District Court’s grant of summary

judgment to the University of Pittsburgh Medical Center

(“UPMC”). For the reasons given below, and despite Judge

Van Antwerpen’s well-crafted opinion, I respectfully dissent.

For her interference and retaliation claims to survive

summary judgment, Lichtenstein must introduce evidence

that she was entitled to FMLA benefits. Hayduk v. City of

Johnstown, 386 F. App’x 55, 60 (3d Cir. 2010) (“[T]he first

elements of both theories [i.e., interference and retaliation]

are essentially identical: a plaintiff . . . must establish, among

other things, that he had a right to FMLA benefits.”). To

establish that entitlement, Lichtenstein must demonstrate that

she gave her employer adequate notice of the need for FMLA

leave. See id. Federal regulations require that an employee

“state a qualifying reason for the needed leave.” 29 C.F.R.

1

§ 825.301(b). When the need for leave is unforeseeable,

employees must give notice “as soon as practicable under the

facts and circumstances of the particular case” and according

to the employer’s “usual and customary notice and procedural

requirements.” Id. § 825.303(a) & (c). The employee “need

not expressly assert rights under the FMLA or even mention

the FMLA,” but must “provide sufficient information for an

employer to reasonably determine whether the FMLA may

apply to the leave request.” Id. § 825.303(b). Compare

Sarnowski v. Air Brook Limousine, Inc., 510 F.3d 398, 402

(3d Cir. 2007) (“In providing notice, the employee need not

use any magic words.”), with Hayduk v. City of Johnstown,

580 F. Supp. 2d 429, 471 (W.D. Pa. 2008) (“The FMLA does

not require an employer to be clairvoyant.” (quoting

Brenneman v. MedCentral Health Sys., 366 F.3d 412, 428

(6th Cir. 2004)). The employer may have a duty to “inquire

further . . . to ascertain whether leave is potentially FMLA-

qualifying,” 29 C.F.R. § 825.301(a), but that duty only arises

when the employee provides adequate notice. See Wilson v.

Lemington Home for the Aged, 159 F. Supp. 2d 186, 192

(W.D. Pa. 2001); De Luca v. Trs. of Univ. of Pa., 834

F. Supp. 2d 282, 293 (E.D. Pa. 2011).

Lichtenstein contends that she gave proper notice

when she called off on January 3 and told the nursing

supervisor, “I was currently in the emergency room, that my

mother had been brought into the hospital via ambulance, and

I would be unable to work that day.” I agree with my

colleagues that the notice issue is generally a question of fact

and “the critical test is not whether the employee gave every

necessary detail to determine if the FMLA applies, but how

the information conveyed to the employer is reasonably

interpreted.” Id. at 16 (quotation marks & citation omitted).

However, I cannot agree that “genuine factual disputes exist

about whether Lichtenstein’s notice was adequate.” Maj. Op.

at 21.

2

Lichtenstein did not state a qualifying reason for her

January 3 absence because she failed to mention essential

details that were critical for adequate notice, namely the

seriousness of her mother’s condition and her mother’s need

for care. Lichtenstein conveyed to UPMC that her mother

was at the hospital, but not that her mother was suffering

from a serious health condition. According to the majority,

Lichtenstein’s notice might have been sufficient because

“many people in [her mother’s] situation do require [FMLA-

qualifying] care.” Maj. Op. at 19 (emphasis in text). This

view imposes on employers a much broader obligation than, I

believe, the FMLA requires.

Consider, for example, an employee who calls out

from work saying she needs to go to the hospital. Whether

that employee is going to the hospital for an emergency

procedure, a routine check-up, or just to pick up a friend, the

majority’s reasoning dictates that the notice cannot be

designated inadequate as a matter of law because “many

people in this situation” require care for a serious health

condition. Indeed, simply calling out “sick” would qualify as

sufficient notice under the majority’s reading of the FMLA

had the Department of Labor not adopted an explicit rule to

the contrary. See 29 C.F.R. § 825.303(b). “If you have brain

cancer but just tell your employer that you have a headache,

you have not given the notice that the Act requires.”

Aubuchon, 359 F.3d at 952.1 The majority’s lenient reading

1

The Seventh Circuit Court requires that an employee’s

notice “give the employer enough information to establish

probable cause, as it were, to believe that he is entitled to

FMLA leave.” Id. at 953; but see Scobey v. Nucor Steel-Ark.,

580 F.3d 781, 788 (8th Cir. 2009) (applying a more lenient

notice standard). I do not address whether that is the

appropriate standard to apply to notice questions in FMLA

3

of the notice requirement distorts the balance Congress and

the Department of Labor struck between employee and

employer interests, and improperly “place[s] a substantial and

largely wasted investigative burden on employers.” Id. at

953.

Lichtenstein also conveyed to UPMC that she needed

the day off, but not that the day off was necessary to care for

her mother. Though UPMC conceded that caring for one’s

mother under such circumstances “would be a natural thing to

do,” Maj. Op. 21, empathy cannot make up for Lichtenstein’s

failure to mention an FMLA-qualifying reason for her

absence. See Aubuchon, 359 F.3d at 952 (“Wanting to stay

home with one's wife until she has the baby, while

understandable, is not the same thing as wanting to stay home

to care for a spouse who has a serious health condition.”).

In addition to omitting critical details from her

statements to the nursing supervisor, Lichtenstein failed to

provide notice “as soon as practicable.” See 29 C.F.R.

§ 825.303(a). She returned to work on January 4—while her

mother was still in the hospital—and did not notify a

supervisor about her mother’s serious health condition.

Lichtenstein even testified at her deposition that she first

asked for FMLA leave on January 8, not January 3. App. at

66 (“The first time that I asked [for leave] . . . [w]as January 8

of 2008.”). Even if her request for leave on January 8 was

made “as soon as practicable,” which it was not, the direct

evidence in the record indicates only that the decision was

made to terminate Lichtenstein before the 8th. See App. at

345 (Lidey testifying that the decision was made “before New

Year’s”); 423-424 (Brown testifying that the decision “had to

be [made] prior to January 8th”). Lichtenstein argues that the

cases, but we should be aware of the important considerations

that led the Seventh Circuit to adopt it.

4

decision may have been made “on or after January 7,”

Lichtenstein Br. at 17, but she only cites non-probative

circumstantial evidence to support her claim. See id. at 14

(citing App. at 331 (Lidey testifying that she “discussed

[Lichtenstein’s call-offs] with Human Resource” on January

7)). Lichtenstein cites no direct evidence that the decision

was made after the 8th and does not address Brown’s

testimony.

There are situations in which an employee provides

sufficient notice to trigger an employer’s duty to inquire, but

this is not one of them. See Satterfield v. Wal-Mart Stores,

Inc., 135 F.3d 973, 978-91 (5th Cir. 1998) (rehearing and

rehearing en banc denied) (holding, as a matter of law, that an

employee’s statement that she “was having a lot of pain and .

. . wouldn’t make it in to work that day” provided insufficient

notice to her employer under the FMLA). That Lichtenstein’s

statements might reasonably be construed as providing

adequate notice is a bridge too far. If notice is adequate when

an employer can “reasonably determine whether the FMLA

may apply,” 29 C.F.R. § 825.303(c), then we should find that

notice is inadequate when, as in this case, an employee omits

vital pieces of information that would distinguish FMLA

leave from an ordinary absence.

If Lichtenstein’s statements could reasonably be

interpreted as sufficient notice of her need for FMLA leave, I

would join my colleagues and reverse the grant of summary

judgment. However, I believe that the statements are

insufficient as a matter of law. Thus I respectfully dissent.

5