NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-2640
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JEAN MARIE CUNNINGHAM,
Appellant
v.
NOVO NORDISK
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-06654)
District Judge: Honorable Nitza I. Quiñones Alejandro
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Submitted Under Third Circuit LAR 34.1(a)
June 2, 2015
Before: RENDELL, HARDIMAN and VANASKIE, Circuit Judges.
(Filed: June 11, 2015)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Jean Cunningham appeals the District Court’s order granting summary judgment to
Novo Nordisk on her employment discrimination claim under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and her retaliation claim under the
Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. We will affirm, essentially
for the reasons stated by the District Court in its thoughtful opinion.
I
Cunningham is a registered nurse and works as a manager in the product safety
department at Novo Nordisk, a pharmaceutical and biopharmaceutical company, where
she has been employed since March 2008. In October 2010, Cunningham suffered a heart
attack and underwent quadruple bypass surgery. She applied for and received a three-
month leave of absence under the FMLA from October 2010 until January 2011.
Shortly before she was due back at work, Cunningham’s cardiologist wrote to
Novo Nordisk’s human resources department, explaining that Cunningham required an
additional two weeks to fully recover. He also recommended that she gradually increase
her time at work by working four hours a day for her first two weeks back, then six hours
per day during her third week back. After this gradual increase in her hours, the doctor
expected Cunningham to return to full-time work “with total resumption of her usual
responsibilities.” App. 180. Novo Nordisk accepted this proposed return-to-work
schedule without modification. On February 28, 2011, Cunningham returned to full-time
2
work without restriction.
After returning, Cunningham claims she was subjected to discrimination and
retaliation, primarily from her then-supervisor, Dr. Alvin Estilo. Specifically, she claims
that whenever she needed to attend a doctor’s appointment, had chest discomfort, or
needed to work from home, Dr. Estilo “seemed a little perturbed” or “acted disgusted.”
App. 132–33. Cunningham also claims that Dr. Estilo once disregarded her complaint of
chest pain and another time advised her that she would have to “pick up more work.”
App. 136. Cunningham complains of other discriminatory conduct by co-workers. In
particular, she claims that another manager said that the product review board group
thought that Cunningham did not know what she was doing and “was inappropriate.”
App. 125. Cunningham also claims she heard a co-worker say that Cunningham gave
herself a heart attack to get extra time off.
Cunningham filed a complaint against Novo Nordisk asserting two claims:
discrimination under the ADA1 and retaliation under the FMLA. Novo Nordisk moved
for summary judgment and the District Court granted the motion in its entirety. The Court
held that Cunningham could not establish a prima facie case of discrimination under the
ADA or retaliation under the FMLA because she did not have a disability, was not
1
All references to the ADA in this opinion are to the Act as amended by the ADA
Amendments Act of 2008 (ADAAA), which became effective at the beginning of 2009.
See Pub. L. No. 110-325, 122 Stat. 3553 (codified at 42 U.S.C. § 12101 et seq.).
3
regarded as disabled by her employer, and had not suffered an adverse employment
action. Id. This timely appeal followed.2
II
Cunningham argues that the District Court improperly granted summary judgment
in favor of Novo Nordisk on each of her claims. She contends that the Court erred by
determining that she (1) was not disabled or regarded as disabled under the ADA; (2) did
not suffer an adverse employment action; (3) did not establish a failure to accommodate
claim; (4) did not establish her claim for hostile work environment; and (5) did not
establish a retaliation claim under the FMLA.
A
We analyze ADA disability claims under the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A plaintiff must first establish
a prima facie case of disability discrimination by showing that she has a “disability”
within the meaning of the ADA, is a “qualified individual,” and “has suffered an adverse
employment action because of that disability.” Turner v. Hershey Chocolate USA, 440
F.3d 604, 611 (3d Cir. 2006).
2
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s
order granting summary judgment and review the facts in the light most favorable to the
nonmoving party. Nat’l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d
Cir. 2013).
4
Because Cunningham did not present sufficient evidence to show that she is
disabled within the meaning of the ADA, was regarded as disabled by Novo Nordisk, or
suffered an adverse employment action, she failed to establish a prima facie case of
disability employment discrimination. Although Cunningham correctly points out that the
ADAAA made it easier to prove a disability, she must still show a substantial limitation.
See 42 U.S.C. § 12102(1)–(2). She presented no evidence demonstrating that, because of
her heart attack and subsequent surgery, she was substantially limited in a major life
activity. Indeed, Cunningham admitted that, since returning to work, she has been fully
capable of working, performing her job duties, and caring for herself.
Nor did Cunningham show that she was regarded as having a disability by Novo
Nordisk. Although her supervisor and some co-workers were aware of her medical
condition, Cunningham did not provide any evidence that they regarded her as disabled or
substantially limited in her ability to work. To the contrary, Novo Nordisk integrated
Cunningham back to full-time status, continued to rate her as “Meets Expectations” on
her annual performance review, and gave her a raise and increased bonus that same year.
Even if Cunningham were able to show that she was disabled or regarded as
disabled, she could not show that she suffered any adverse employment action. An
adverse employment action is one that is “serious and tangible enough to alter an
employee’s compensation, terms, conditions, or privileges of employment.” Storey v.
Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004). After taking leave, Cunningham
5
returned to her job, received the same performance rating she had previously received,
and was given a raise and increased bonus. She remains an employee at Novo Nordisk
and has continued to receive salary increases. Moreover, Cunningham has never received
any type of discipline, warning, or decrease in compensation.
Cunningham argues that she suffered an adverse action when she was reassigned
to work on clinical trials upon her return, when Novo Nordisk altered her privilege of
working from home, and when her supervisor subjected her to harassment when she
wanted to visit the doctor. None of these incidents rise to the level of adverse employment
actions. When Cunningham returned to work, her supervisor proposed that she initially
handle clinical trial cases, which she had worked on previously and were considered less
stressful. Cunningham agreed to the proposal. Rather than an adverse action, this was an
attempt by Novo Nordisk to accommodate Cunningham and ease her transition to full-
time work in line with the request made by her cardiologist. In any event, Cunningham
remained at the same grade level, working for the same supervisor and in the same
department, and received an increase in both salary and bonus.
Likewise, to accommodate her return from leave, Novo Nordisk allowed
Cunningham to work from home at least 23 times. At that time, no other managers
worked from home. Cunningham claims that this accommodation or privilege was altered
by her supervisor’s questions about what she was working on at home and his explanation
of what hours and days she was expected to work. But this type of supervision of an
6
employee’s work does not constitute an adverse employment action. Nor does the alleged
harassment Cunningham claims she suffered when she wanted to visit the doctor.
Although she claims that her supervisor treated her with hostility and disdain each time
she visited the doctor, she concedes that she was permitted to take off work every time
she needed to. Having experienced no “significant change in employment status,”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998), Cunningham failed to show
that she suffered an adverse employment action. Accordingly, the District Court properly
granted summary judgment on Cunningham’s ADA claims.3
B
Cunningham’s FMLA “interference” claim is based on a purported violation of 29
U.S.C. § 2615(a)(1), which provides that an employer may not “interfere with, restrain, or
deny the exercise of or the attempt to exercise” any entitlement guaranteed by the FMLA.
To prevail on her interference claim, Cunningham must show that she was entitled to
3
Because the District Court correctly found there were no genuine issues of
material fact as to the threshold determination of whether Cunningham had a legally
cognizable disability, we need not reach her failure-to-accommodate or hostile-work-
environment claims. We note, however, that Novo Nordisk made a number of
accommodations for Cunningham when she returned to work, such as granting her
additional leave, increasing her workload gradually, and allowing her to work from home
on numerous occasions. Cunningham does not identify any accommodation she requested
that was denied by Novo Nordisk. Moreover, the sporadic and isolated comments that
Cunningham complains her colleagues made, while insensitive, do not rise to the level of
“discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of [her] employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
7
benefits under the FMLA and that Novo Nordisk denied her right to receive them. Here,
there is no dispute that Cunningham requested and was granted FMLA leave from
October 13, 2010 through January 11, 2011, which was all of the time she was entitled to
under the FMLA. See 29 U.S.C. § 2612(a)(1). Novo Nordisk even granted her additional
leave, and Cunningham testified that she did not need any more leave beyond what she
took. Based on the record before us, we find no evidence that Cunningham gave Novo
Nordisk notice that she needed to take any additional FMLA-qualifying leave. We agree
with the District Court that Cunningham was granted all of the leave she requested, and
there is no evidence that any additional FMLA leave was needed.
Cunningham’s claim of retaliation in violation of the FMLA is based on an alleged
violation of 29 U.S.C. § 2615(a)(2), which prohibits an employer from “discharg[ing] or
in any other manner discriminat[ing] against any individual for opposing any practice
made unlawful by this subchapter.” Because FMLA retaliation claims are subject to the
McDonnell Douglas burden-shifting framework, Cunningham must initially establish a
prima facie case of retaliation by demonstrating that (1) she invoked her right to FMLA-
qualifying leave, (2) she suffered an adverse employment decision, and (3) there is a
causal connection between the adverse employment decision and the FMLA leave.
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012).
Because Cunningham did not present evidence showing that she suffered an adverse
8
employment action, her claim must fail. Accordingly, the District Court properly granted
summary judgment on her claim of retaliation under the FMLA.
III
For the reasons stated, we will affirm the order of the District Court.
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