NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-4374
_____________
COLEMAN R. MCCALL,
Appellant
v.
CITY OF PHILADELPHIA; CITY OF PHILADELPHIA
DIVISION OF AVIATION;
CITY OF PHILADELPHIA DEPARTMENT OF COMMERCE
DIVISION OF AVIATION;
PHILADELPHIA AIRPORT SYSTEM; PHILADELPHIA
INTERNATIONAL AIRPORT
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-11-cv-05689
District Judge: The Honorable Ronald L. Buckwalter
Argued October 6, 2015
Before: FUENTES, SMITH, and NYGAARD, Circuit Judges
(Filed: November 18, 2015)
Lorrie McKinley [ARGUED]
McKinley & Ryan
238 West Miner Street
West Chester, PA 19382
Counsel for Appellant
Elise M. Bruhl [ARGUED]
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Counsel for Appellees
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OPINION*
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SMITH, Circuit Judge.
Coleman R. McCall was a Custodial Worker I at the Philadelphia
International Airport, which is administered by the City of Philadelphia. McCall
began his employment in April of 2001. Ten years later, McCall’s employment
was terminated. Thereafter, he filed a complaint in the United States District Court
for the Eastern District of Pennsylvania alleging that the City had violated his
rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615, the
Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12112,
and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Con. Stat. § 955.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
2
The parties filed cross-motions for summary judgment after discovery
closed. The District Court denied summary judgment on the FMLA retaliation
claim, but granted summary judgment in favor of the City on the ADA and PHRA
claims. After the FMLA claim settled, McCall filed this appeal. He challenges
only the grant of summary judgment on the ADA claims alleging: (1) a failure to
accommodate McCall’s knee disability; (2) a failure to accommodate McCall’s
depressive disorder; and (3) a hostile work environment.1
“An employer commits unlawful disability discrimination under the ADA if
[it] ‘does not mak[e] reasonable accommodations to the known physical or mental
limitations’” of an employee. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318,
325 (3d Cir. 2003) (citation omitted). “‘[W]hile the notice [of a desire for an
accommodation] does not have to be in writing, be made by the employee, or
formally invoke the magic words ‘reasonable accommodation,’ the notice
nonetheless must make clear that the employee wants assistance for his or her
disability.’” Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000)
(quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)).
In this case, McCall contends the City failed to accommodate his knee
1
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1367. We exercise
jurisdiction under 28 U.S.C. § 1291. We conduct plenary review of a District
Court’s grant of summary judgment. Jones v. United Parcel Serv., 214 F.3d 402,
405 (3d Cir. 2000).
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disability when it did not allow him to use the fifteen days of unpaid leave
available to employees at the City’s discretion under a civil service regulation.
There is no evidence that McCall ever requested such an accommodation. Indeed,
in his deposition he affirmed that did not need to make such a request because the
fifteen days of unpaid leave were given to every employee. McCall’s reliance on
the availability of unpaid leave, however, was misplaced. McCall’s placement on
the No Unpaid Leave List in both 2006 and 2009, as well as the City’s issuance of
notice in August of 2009 that it would not be as generous in approving unpaid
leave, unmistakably informed McCall that unpaid leave was not automatically
available to every employee every year.
Nor is there evidence from which constructive notice of a desire for an
accommodation could be inferred. It is true that McCall had several unauthorized
absences. Those absences, however, cannot provide the requisite notice as there
was no documentation which would inform the City that McCall’s unauthorized
absences were attributable to his knee disorder. We recognize that Dr. Leavitt’s
letter explained that McCall’s unauthorized absence on May 1, 2010 was due to
severe knee pain and depression. But that letter, dated March 21, 2013, cannot
constitute constructive notice triggering the duty to accommodate McCall’s knee
disability because the letter was written almost three years after the unauthorized
absence on May 1, 2010.
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As to McCall’s depressive disorder, the evidence fails to establish that the
City even knew of McCall’s depression until he asked for FMLA leave at the end
of July 2010. Once the City was informed of McCall’s depressive disorder,
however, it granted both the requested leave and an extension of that leave.
Thereafter, McCall submitted a prescription from his physician stating that his “job
related problem continues unimproved. He is unable to work through April 4,
2011.” The City did not deny additional leave. Rather, the City informed McCall
that it could not process the request “because the condition for which you are being
treated . . . is not listed on your doctor’s note and you did not complete and submit
a leave request.” McCall promised several times to provide the necessary medical
documentation. But by April 5, 2011, McCall had failed to submit any
documentation. We conclude that the District Court appropriately granted
summary judgment on this claim because the City lacked not only a request for
leave, but also the information necessary to determine what kind of
accommodation was desired.
Nor are we persuaded that the District Court erred in granting summary
judgment on McCall’s hostile environment claim. A successful ADA hostile
environment claim requires that the “harassment was based on [the] disability or a
request for an accommodation.” Walton v. Mental Health Ass’n of Se. Pa., 168
F.3d 661, 667 (3d Cir. 1999). The evidence fails to show that any harassment that
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occurred was related to either McCall’s knee disorder or his depression.
We recognize that a request for FMLA leave may qualify in certain
circumstances as a request for an accommodation under the ADA. See 29 C.F.R.
§ 825.702(c)(2). Nonetheless, any harassment McCall may have endured because
of a request for FMLA leave occurred when his twins were born prematurely. This
was family leave under the FMLA. See 29 U.S.C. § 2612(a)((1)(A)-(C). Because
family leave is not based on an employee’s own serious health condition, a request
for family leave under the FMLA cannot qualify as a request for accommodation
of a disability in an ADA hostile environment claim.
To be sure, there was some hostility at work. Kayla Jones, the management
employee in charge of applying the City’s progressive discipline policy, was
unprofessional in her interaction with employees, including McCall. The Inspector
General’s Office recommended that Jones “be disciplined for multiple incidents of
conduct unbecoming in order to minimize further occurrences.” Yet Jones’s
inability to behave professionally with multiple individuals does not establish that
any harassment by Jones was because of McCall’s disabilities or a request for an
accommodation.
Accordingly, we will affirm the District Court’s judgment.
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