Fredrick Capps v. Mondelez Global LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 15-3839
_____________

FREDRICK CAPPS,
Appellant

v.

MONDELEZ GLOBAL, LLC

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-14-cv-04331)
District Judge: Honorable Gerald J. Pappert

Argued July 12, 2016

Before: FUENTES*, SHWARTZ and RESTREPO,
Circuit Judges

(Filed: January 30, 2017)

Christine E. Burke [ARGUED]
Ari R. Karpf
Karpf Karpf & Cerutti
3331 Street Road, Suite 128
Two Greenwood Square
Bensalem, PA 19020
Counsel for Appellant

*
Honorable Julio M. Fuentes assumed senior status on July
18, 2016.
Leslie M. Greenspan [ARGUED]
Joe H. Tucker, Jr.
Tucker Law Group
1617 John F. Kennedy Boulevard, Suite 1700
Philadelphia, PA 19103
Counsel for Appellee

Jeremy D. Horowitz [ARGUED]
Equal Employment Opportunity Commission
131 M Street, N.E., 5th Floor
Washington, D.C. 20507
Counsel for Amicus Curiae

OPINION

RESTREPO, Circuit Judge.

Frederick Capps challenges the District Court’s Order
granting summary judgment in favor of Capps’ former
employer, Mondelez Global, LLC (“Mondelez”), one of the
largest manufacturers of snack food and beverage productions
in the United States. Specifically, Capps argues that the
District Court erred in granting Mondelez’s summary
judgment motion on Capps’ claims that Mondelez: (1)
interfered with his rights under the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) acted in
retaliation to Capps’ proper use of FMLA leave; and (3)
violated the Americans with Disabilities Act, as amended
(“ADA”), 42 U.S.C. § 12101 et seq.

For the reasons that follow, we affirm the District
Court’s Order granting summary judgment in favor of
Mondelez. In so doing, we hold that an employer’s honest
belief that its employee was misusing FMLA leave can defeat
an FMLA retaliation claim. We also confirm that, under
certain circumstances, a request for intermittent FMLA leave
may also constitute a request for a reasonable accommodation
under the ADA, but under the circumstances in this particular

2
case, even assuming, arguendo, such a request was made,
there is a lack of evidence that Mondelez failed to provide
any requested accommodation.

I. BACKGROUND

Mondelez’s predecessor, Nabisco, hired Capps in
November 1989. At all relevant times to this action, Capps
held the position of mixer, which required him to operate a
mixing machine that makes dough.

Mondelez has maintained a policy that an employee is
entitled to FMLA leave for a “serious health condition of the
employee that makes the employee unable to perform one or
more of the essential functions of his/her position.” (JA 451.)
An employee may use intermittent FMLA leave when it is a
“medical necessity,” and the employee must provide notice of
the leave “as soon as practicable.” (JA 451-52.)

Any employee who wishes to take FMLA leave due to
his own serious health condition must provide the company
with a certification from his health care provider. Company
policy also provides: “As with all communications with the
Company, the submission of false information to the
Company regarding the need for FMLA leave, or the
fraudulent use of FMLA leave, may result in discipline, up to
and including termination.” (JA 452.)

Mondelez also has a policy entitled “Dishonest Acts
on the Part of Employees” (“Dishonest Acts Policy”), which
is considered a “Major Rule.” (JA 449, 457.) Violations of
“Major Rules” are considered inexcusable offenses that “will
result in immediate suspension pending investigation, which
could lead to termination.” (JA 449, 457.) Mondelez’s
Dishonest Acts Policy includes the warning that “THE
COMPANY WILL NOT TOLERATE DISHONESTY
ON THE PART OF ITS EMPLOYEES, WHETHER IT
BE COMMITTED AGAINST THE COMPANY,
ANOTHER EMPLOYEE, ITS CUSTOMERS, OR
OTHERS EITHER DURING OR AFTER WORKING
HOURS” and that “ANY EMPLOYEE FOUND GUILTY
OF A DISHONEST ACT WOULD BE SUBJECT TO
DISMISSAL.” (JA 449 (emphasis in original).)

3
 Capps suffers with Avascular Necrosis (“AVN”),
which was described by Aron Guttin, D.O., Capps’ treating
physician, as “a condition in which there is a loss of blood
flow, severely limiting oxygen and nutrient delivery to the
bone and tissues, essentially suffocating and causing death of
those cells.” (JA 312.) As a result of the AVN, Capps
developed arthritis in both hips which necessitated bilateral
hip replacement in or about 2003.

He has experienced severe pain at times in the pelvic
region, thighs and hips, sometimes lasting for days or weeks
at a time. Therefore, he requested intermittent time off from
work when flare-ups occurred. Capps was certified for
intermittent FMLA leave following his hip replacements, and
thereafter throughout his tenure at Mondelez, he was
continuously recertified approximately every six months for
intermittent FMLA leave for his condition until his
employment was terminated in 2014.

The certification supporting Capps’ approved FMLA
leave covering January 24, 2013 through July 23, 2013 was
completed by Dr. Guttin who certified that Capps was unable
to perform certain job functions as a result of his condition.
Where the certification form required Dr. Guttin to “identify
the job functions the employee is unable to perform,” Dr.
Guttin responded that Capps “requires full bedrest during
exacerbations.” (JA 334.)

Dr. Guttin further stated that “[t]his year [the episodes]
have been more severe [and] more frequent than years prior”
and that Capps “experiences temporary periods of
inflammation that are debilitating and require anti-
inflammatory medication and rest.” (JA 334, 335.)
Mondelez’s third-party FMLA administrator, WorkCare,
approved this request under the FMLA, and the approval
noted that Capps “may need to be off work 1-2 times every
month for a duration of up to 14 days per episode for
incapacity and treatment appointments.” (JA 342.)

On Monday, February 11 and Tuesday, February 12,
2013, Capps took FMLA leave due to leg pain, and he
returned to work for a full shift on Wednesday, February 13,

4
2013. Capps was scheduled to work on Thursday, February
14, 2013, but he called Mondelez’s phone system and the
FMLA message line on February 14th stating he would be late
to work because of leg pain. Later that day, he again called
the FMLA message line and Mondelez’s phone system
stating that he would be taking a full day of FMLA leave
since the pain had not subsided. Dr. Guttin also signed
Capps’ FMLA certification form dated February 14th.

Capps testified at his deposition that his wife was out
of the country that week on a business trip and that because
he didn’t “know how to cook,” he had to “call out or go out”
for his meals. (JA 279.) Capps further testified that at
approximately 6:30 p.m. on the 14th he drove to a local pub,
which was not more than one and a half miles from his home,
to “get something to eat” (JA 279). According to Capps, at
the pub he also drank three beers and three shots of alcohol
with his friends, and he spent approximately two and a half (2
½) to three hours at the pub. Afterwards, despite feeling too
intoxicated to drive, Capps attempted to drive home.

Capps testified that after leaving the pub, at or around
9:00 p.m. he was stopped by police. The Bensalem Township
police drove Capps to the hospital for a blood test, which
resulted in a reading of a blood alcohol concentration level of
0.339% - more than four times the legal limit in
Pennsylvania. Capps testified that he was released from jail
early the next morning on Friday, February 15, 2013. He
further testified that he woke up on the 15th “probably about
10, 11 o’clock” and his “legs were bothering [him] again.”
(JA 46.) He stated that he “just hung around the house, just
wasn’t feeling good” and “took some Aleve again.” (JA 46.)

Capps was scheduled to begin his shift that Friday
afternoon at 1 p.m. on February 15th. However, on the 15th,
he called Mondelez’s phone system and the FMLA message
line indicating that he would be using FMLA leave due to leg
pain.

Capps returned to work on Monday, February 18,
2013. Upon returning to work, he performed the same work
and received the same salary and benefits as before taking
FMLA leave. He did not report his arrest to anyone at

5
Mondelez; nor was he required to under Mondelez’s policies.
Upon recertification, Capps was approved for FMLA leave
from July 31, 2013 through January 30, 2014.

On August 7, 2013, Capps pled guilty to the charge of
Driving Under the Influence of Alcohol (“DUI”), and he
served 72 hours in jail immediately following the guilty plea
hearing. His sentence also included probation, costs and
fines, and suspension of his driver’s license.

In early 2014, William Oxenford, a Human Resources
(“HR”) Manager at Mondelez, became aware of Capps’ DUI
conviction and sentence by finding in Oxenford’s company
mailbox a newspaper article reporting the same. Oxenford
asked Barbara McAvoy, an employee in the HR department,
and Nancy Pace, administrative assistant to the plant
manager, to investigate Capps’ attendance record to
determine if Capps had any absences during the time frame of
Capps’ arrest and conviction.

Although neither Oxenford nor McAvoy were
attorneys, and they did not understand the meaning of all the
docket entries, upon reviewing the criminal court docket
related to Capps’ conviction, Oxenford and McAvoy noticed
that Capps’ arrest date and “court dates” appeared to coincide
with days on which Capps had taken FMLA leave. For
instance, Capps’ arrest date, February 14, 2013, was a day on
which Capps had called out on FMLA leave. He also called
out on FMLA leave the next day. In addition, he called out of
work using FMLA leave on other dates that appeared on the
court docket: June 4, 2013 (“Appearance and Waiver of
Arraignment”) and October 15, 2013 (“ARD Court”).

Oxenford and McAvoy confronted Capps and his
union representative with this information at a meeting on
February 26, 2014. In response, Capps promised to provide
documentation to support his FMLA leave on the days in
question, and Capps was suspended pending further
investigation.

Upon being suspended, Capps submitted to Mondelez
an undated letter from Dr. Guttin confirming the
aforementioned dates Capps had taken FMLA leave during

6
the week of February 11, 2013 due to his “hip pathology” (JA
407). The undated letter further stated that Capps had taken
FMLA leave on June 3 and 4, 2013 due to his hip pathology,
and also that he had a court date on June 7, 2013 but “waived
his right for that appearance.” (JA 407.) Oxenford was
suspicious of the undated letter which included legal
information from Dr. Guttin regarding scheduled court dates
and certain legal rights that Capps had waived. Mondelez
subsequently received a nearly identical letter dated February
27, 2014 from Dr. Guttin.

Capps also submitted to Mondelez an unsigned first
page only of a letter dated May 31, 2013 addressed to Capps
from his attorney in the DUI matter confirming some of the
dates related to his DUI action. On April 21, 2014, nearly
two months after he was suspended and promised to provide
documentation (and one month after receiving notice of his
termination), Capps provided a complete copy of that 2-page
letter. After Capps had been terminated, he presented a
second letter from his DUI attorney dated March 26, 2014
confirming that Capps attended court proceedings on May 9,
2013 and August 7, 2013 and that Capps was incarcerated
from August 7, 2013 to August 10, 2013.

Capps was notified of his termination of employment
by letter dated March 21, 2014, effective February 26, 2014.
That decision was made by Oxenford and the plant manager,
Rusty Moore, in conjunction with Mondelez’s legal
department. The letter confirmed that Capps’ termination
was based on his violation of the Dishonest Acts Policy. The
termination letter further stated: “You claimed to be out due
to [ ] FMLA related issues on multiple dates. The
documentation you produced does not support your claim of
[ ] FMLA related absences.” (JA 404.)

Following Capps’ termination, Mondelez retained the
services of an investigator. The investigator reported on April
25, 2014 that a detective from the police department indicated
that Capps had been released from custody from his DUI
arrest at 6:00 a.m. on the morning following the arrest.

Capps completed a Grievance Form on March 27,
2014 claiming he was “unlawfully terminated.” (JA 405.)

7
Mondelez offered Capps reinstatement without back pay on
April 28, 2014, and Capps rejected the offer of reinstatement
on May 13, 2014.

Capps initiated this lawsuit on July 18, 2014. He filed
his Second Amended Complaint on October 16, 2014 alleging
claims of interference and retaliation in violation of the
FMLA, violations of the ADA, and violations of the
Pennsylvania Human Relations Act (“PHRA”).1 Following
discovery, Mondelez filed a motion for summary judgment on
July 27, 2015, and on that same date Capps filed a cross-
motion for partial summary judgment on his FMLA
interference claim.

By Memorandum and Order filed November 24, 2015,
the District Court granted Mondelez’s summary judgment
motion and denied Capps’ cross-motion. See Capps v.
Mondelez Global LLC, 147 F. Supp.3d 327, 330 (E.D. Pa.
2015). The District Court granted summary judgment on
Capps’ FMLA interference claim due to Capps’ inability to
show that he was denied a benefit to which he was entitled
under the FMLA. Id. at 335. The District Court granted
summary judgment on Capps’ FMLA retaliation claim
because the record evidence showed that Mondelez based its
decision to terminate Capps’ employment on an honest belief
that Capps misused that leave.2 Id. at 330, 339-40. Finally,

1
Because the PHRA is coextensive with the applicable
federal law, the conclusions herein are equally applicable to
Capps’ claims under the PHRA. See, e.g., Kelly v. Drexel
Univ., 94 F.3d 102, 105 (3d Cir. 1996) (noting that “courts . .
. generally interpret the PHRA in accord with its federal
counterparts”).
2
In support of its holding that Mondelez’s honest belief
defeated Capps’ FMLA claim, the District Court cited two
non-precedential opinions, Warwas v. City of Plainfield, 489
F. App’x 585, 588 (3d Cir. 2012) (citing Crouch v. Whirlpool
Corp., 447 F.3d 984, 986 (7th Cir. 2006)) (“[A]n employer
may defeat an FMLA claim if the discharge was based upon
the employer’s honest belief that the plaintiff either misused
or failed to use her medical leave for the intended purpose.”),
and Parker v. Verizon Pa., Inc., 309 F. App’x 551, 563 (3d
8
the District Court granted summary judgment on Capps’
ADA claim because, although Capps requested and received
intermittent leave under the FMLA, he never made a request
for an accommodation under the ADA. Id. at 340.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1367. We have jurisdiction under 28 U.S.C. §
1291.

Our review of the District Court’s grant of summary
judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853,
859 (3d Cir. 2014). A moving party is entitled to summary
judgment if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is
“genuine” only “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
inferences must be drawn in favor of the nonmoving party.
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.
2009).

III. FMLA CLAIMS

The FMLA provides, in relevant part, that “eligible
employees are entitled to 12 workweeks of leave during any
12-month period due to an employee’s own serious health
condition.” Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014)
(citing 29 U.S.C. § 2612(a)(1)). Under the FMLA, when an

Cir. 2009) (finding no FMLA violation where termination of
employment was due to employer’s honest belief that
employee misrepresented his health condition in violation of
the employer’s Business Code of Conduct). Both Parker and
Warwas rely on Seventh Circuit case law in support of
application of the honest belief defense. See, e.g., Crouch,
447 F.3d at 986 (“[A]n employer’s honest suspicion that the
employee was not using his medical leave for its intended
purpose is enough to defeat the employee’s substantive rights
FMLA claim.”).
9
employee returns from such leave, the employer must restore
the employee to the same or equivalent position held by the
employee when the leave commenced, as well as restore the
employee with equivalent benefits and conditions of
employment. Id. (citing § 2614(a)).

We have previously explained:

[W]hen employees invoke rights
granted under the FMLA,
employers may not “interfere
with, restrain, or deny the exercise
of or attempt to exercise” these
rights.3 Nor may employers
“discharge or in any other manner
discriminate against any
individual for opposing any
practice made unlawful.”4

Id. (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691
F.3d 294, 301 (3d Cir. 2012) (citations omitted)) (footnotes
added). In addition, 29 C.F.R. § 825.220(c) prohibits
employers “from discriminating or retaliating against an
employee or prospective employee for having exercised or
attempted to exercise FMLA rights.” Here, Capps has alleged
claims of FMLA interference and retaliation.

(A) FMLA Retaliation Claim

Capps claims that Mondelez discriminated against him
in violation of the FMLA by terminating his employment in
retaliation for his use of FMLA leave. Since “FMLA
retaliation claims require proof of the employer’s retaliatory
intent, courts have assessed these claims through the lens of
employment discrimination law.” Lichtenstein, 691 F.3d at
302. Accordingly, a claim such as Capps’ FMLA retaliation
claim is assessed under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S.

3
See 29 U.S.C. § 2615(a)(1).
4
See 29 U.S.C. § 2615(a)(2).
10
792 (1973).5 See Ross, 755 F.3d at 193 (citing Lichtenstein,
691 F.3d at 302). Under the McDonnell Douglas framework,

a plaintiff must first establish a
prima facie case of
discrimination. If the plaintiff
succeeds, the defendant must
articulate a legitimate, non-
discriminatory reason for the
adverse employment action. The
burden then shifts back to the
plaintiff to prove, by a
preponderance of the evidence,
that the articulated reason was a
mere pretext for discrimination.

5
Capps briefly asserts in conclusory fashion that this case
should be analyzed under the framework set forth in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Title VII
mixed-motive gender discrimination case). In particular,
Capps’ appellate brief includes a paragraph stating generally
that the mixed-motive framework set forth in Price
Waterhouse applies “when a plaintiff alleging unlawful
termination presents direct evidence” of discrimination, see
Appellant Br. 25 (emphasis omitted). Even assuming there is
a direct evidence requirement after Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003), other than stating this general
proposition, Capps fails to explain how the Price Waterhouse
framework applies to the specific circumstances in this case.
In any event, to the extent that Capps is arguing that this case
should be analyzed under the Price Waterhouse framework,
as opposed to the McDonnell Douglas framework, based on
allegedly direct evidence of discrimination, the record is
bereft of evidence of discriminatory intent, much less
evidence that “is so revealing of retaliatory animus that it is
unnecessary to rely on the McDonnell Douglas . . . burden-
shifting framework,” see Walden v. Georgia-Pacific Corp.,
126 F.3d 506, 512 (3d Cir. 1997); cf. Lichtenstein, 691 F.3d at
302 (“leav[ing] for another day our resolution of whether the
FMLA continues to allow mixed-motive claims in the wake
of Gross [v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)].”).

11
Ross, 755 F.3d at 193 (citations omitted).

Here, the District Court found that, “when viewing the
facts in a light most favorable to Capps, he is unable to
sustain an FMLA retaliation claim.” See Capps, 147 F.
Supp.3d at 336. First, the District Court found that Capps
cannot establish a prima facie case because “[h]e cannot
demonstrate that the proper use of his FMLA leave – a
protected activity – is causally connected to his termination.”6
Id. The Court further found that “[e]ven if Capps could
establish a prima facie case, he has not adduced any
meaningful evidence that would allow a reasonable factfinder
to find pretext.” Id.

As the District Court found, even assuming, arguendo,
that Capps could establish a prima facie case of FMLA
retaliation, Mondelez met its burden of demonstrating a
legitimate, nondiscriminatory justification for Capps’
discharge with evidence that Capps was terminated for his
misuse of FMLA leave and dishonesty surrounding the leave
in violation of Mondelez’s policies. See McDonnell Douglas,
411 U.S. at 802; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
1994). “FMLA retaliation claims require proof of the
employer’s retaliatory intent.” Lichtenstein, 691 F.3d at 302
(emphasis added). Where an employer provides evidence that
the reason for the adverse employment action taken by the

6
To succeed on an FMLA retaliation claim, Capps must show
that (1) he invoked his right to FMLA-qualifying leave, (2) he
suffered an adverse employment decision, and (3) the adverse
action was causally related to his invocation of rights. See
Ross, 755 F.3d at 193 (citing Lichtenstein, 691 F.3d at 302).
In support of the finding of a lack of evidence demonstrating
the required causal connection, the District Court pointed to
the absence of an unusually suggestive temporal proximity
between the protected activity and the termination, as well as
the lack of evidence supporting a finding of a pattern of
antagonism towards Capps for taking FMLA leave. See
Capps, 147 F. Supp.3d at 336-37; see also Abramson v.
William Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir.
2001) (“[O]ur case law has focused on two main factors in
finding the causal link necessary for retaliation: timing and
evidence of ongoing antagonism.”).
12
employer was an honest belief that the employee was
misusing FMLA leave, that is a legitimate, nondiscriminatory
justification for the discharge. See, e.g., Kariotis v. Navistar
Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997)
(quoting Gustovich v. AT&T Communications, Inc., 972 F.2d
845, 848 (7th Cir. 1992)) (holding, where the employer
provided evidence that it fired the employee because of an
honest belief that the employee committed disability fraud,
that “arguing about the accuracy of the employer’s
assessment is a distraction because the question is not
whether the employer’s reasons for a decision are ‘right but
whether the employer’s description of its reasons is honest’”)
(citation omitted).

In Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir.
2012), where the evidence demonstrated that the employer
held an honest suspicion that the employee was misusing his
FMLA leave at the time it made the decision to terminate the
employee, the Seventh Circuit found that the evidence could
not support a conclusion that the employer intentionally
discriminated against the employee for taking FMLA leave.
Id. at 827. In affirming the District Court’s Order granting
summary judgment in favor of the employer, the Seventh
Circuit in Scruggs pointed out that the employee requested
and was granted leave, took his approved leave, and returned
to work the following day, and it was not until after the
employer had received evidence of misconduct that the
employee was terminated. Id.; see also Arrigo v. Link, 836
F.3d 787, 796 (7th Cir. 2016) (“[T]he question is not whether
[the employer] was correct to believe that [the employee]
performed poorly, but rather whether he honestly believed
that she did.”).

Similarly, in Pulczinski v. Trinity Structural Towers,
Inc., 691 F.3d 996 (8th Cir. 2012), the Eighth Circuit affirmed
the District Court’s Order granting summary judgment in
favor of an employer on an employee’s FMLA discrimination
claim on the basis of evidence of the employer’s honest belief
that the employee violated company policy and the lack of
evidence showing that the employer’s explanation was
pretextual. Id. at 1007. The Eighth Circuit pointed out that
this honest belief was a legitimate, nondiscriminatory reason
for the action and that “[t]o prove that the employer’s

13
explanation was false, the employee must show the employer
did not truly believe that the employee violated company
rules.” Id. at 1003. In explaining the so-called “honest belief
rule,” the appellate court in Pulczinski stated that the “critical
inquiry in discrimination cases like this one is not whether the
employee actually engaged in the conduct for which he was
terminated, but whether the employer in good faith believed
that the employee was guilty of the conduct justifying
discharge.” Id. at 1002. The Eighth Circuit further
explained: “[The employee] must present sufficient evidence
that the employer acted with an intent to discriminate, not
merely that the reason stated by the employer was incorrect.
Taken alone, that the employer’s belief turns out to be wrong
is not enough to prove discrimination.”7 Id. at 1003.

In Medley v. Polk Co., 260 F.3d 1202 (10th Cir. 2001),
an employee claimed that her employer fired her for taking
FMLA leave. In addressing an issue of first impression, id. at
1204, the Tenth Circuit held that the trial judge erred in
failing to give a requested “Honest Belief Defense Charge” to
the jury, since an employer’s honest, albeit possibly mistaken,
belief that an employee had committed fraud, defeats an
employee’s FMLA retaliation claim, id. at 1207-08. In
support of its holding, the Tenth Circuit pointed to the

7
The Sixth Circuit has adopted a modified version of the
honest belief rule requiring employers to show that the
employer’s nondiscriminatory reason not only is honest but
also is “reasonably based on particularized facts.” See Smith
v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998); see also
Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.
2006). We join the Seventh and Eighth Circuits in explicitly
declining to follow that modified approach to the honest
belief rule. See Pulczinski, 691 F.3d at 1003; Little v. Ill.
Dep’t of Revenue, 369 F.3d 1007, 1012 n.3 (7th Cir. 2004)
(citing Flores v. Preferred Tech. Grp., 182 F.3d 512, 516 (7th
Cir. 1999)). “Where the employment action is grounded in an
honest and permissible reason, there can be no intent to
discriminate unlawfully - even if that reason is not reasonably
based on particularized facts.” Id.; see Pulczinski, 691 F.3d at
1003 (rejecting the Sixth Circuit’s modified version of the
honest belief rule as inconsistent with the statute).

14
Seventh Circuit’s reasoning in Kariotis:8 “Discrimination
statutes allow employers to discharge employees for almost
any reason whatsoever (even a mistaken but honest belief) as
long as the reason is not illegal discrimination. Thus when an
employee is discharged because of an employer’s honest
mistake, federal anti-discrimination laws offer no protection.”
Id. at 1208 (quoting Kariotis, 131 F.3d at 680).9
Here, as described above, Mondelez provided evidence
clearly supporting its legitimate, non-discriminatory

8
Kariotis, which the Tenth Circuit has described as the
“germinal case applying [the honest belief] principle in an
FMLA setting,” see Medley, 260 F.3d at 1208, affirmed
summary judgment in favor of the employer on claims
alleging that employment termination violated the ADA, Age
Discrimination in Employment Act (“ADEA”), Employee
Retirement Income Security Act (“ERISA”), and the FMLA.
The Seventh Circuit held that the employer’s honest belief
that the employee had fraudulently accepted disability
benefits following knee surgery defeated the aforementioned
claims, whether or not the employer was mistaken in
concluding that the employee actually had committed fraud.
Kariotis, 131 F.3d at 674.
9
The authorities applying the “honest belief” rule are
consistent with our precedent in comparable contexts. See
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d
Cir. 1995) (quoting McCoy v. WGN Continental Broad. Co.,
957 F.2d 368, 373 (7th Cir. 1992)) (noting, in the context of
an ADEA case, that we “do not sit as a super-personnel
department that reexamines an entity’s business decisions . . .
[O]ur inquiry is limited to whether the employer gave an
honest explanation of its behavior”); see also Fuentes, 32
F.3d at 765 (holding, in a Title VII case, that a plaintiff
cannot discredit an employer’s proffered legitimate, non-
discriminatory reason for termination by “simply show[ing]
that the employer’s decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent,” and explaining that a
plaintiff must instead produce sufficient evidence to permit a
reasonable factfinder to infer that the employer did not
actually act for the asserted non-discriminatory reason).
15
explanation for why Capps was discharged – its honest belief
that Capps misused his FMLA leave and was otherwise
dishonest in violation of Mondelez’s policies. Following
Capps’ AVN diagnosis in 2002 and his bilateral hip
replacements in 2004, Capps was continuously recertified for
FMLA leave during his tenure at Mondelez approximately
every six months through early 2014. There is no indication
that any of Capps’ requests for FMLA leave were denied or
that he was prohibited from returning to work after taking his
approved FMLA leave. Indeed, Capps returned to the same
position with the same benefits each time he returned from
taking his leave, and he continued to take intermittent FMLA
leave without issue through the remainder of 2013.
Moreover, there is no indication of any animus on the part of
Mondelez related to Capps taking FMLA leave prior to
receiving notice of Capps’ arrest and conviction.

It was not until Oxenford received the newspaper
article in 2014 alerting him to Capps’ DUI arrest and
conviction, that Oxenford began to investigate Capps’
attendance record to determine if any of his FMLA leave
coincided with the dates related to his arrest and conviction.
Further, the undisputed evidence indicates that when
Oxenford and McAvoy reviewed the criminal court docket
related to Capps’ DUI case, the docket reflected that the arrest
date and “court dates” appeared to coincide with days on
which Capps had taken FMLA leave. Although Capps argues
that Mondelez was mistaken in its belief that Capps misused
his leave or was otherwise dishonest with regard to the leave
taken, there is a lack of evidence indicating that Mondelez did
not honestly hold that belief. Accordingly, in light of
insufficient evidence for a reasonable factfinder to conclude
that Mondelez’s legitimate, nondiscriminatory explanation for
terminating Capps’ employment was a pretext, the District
Court properly granted summary judgment on Capps’ FMLA
retaliation claim. See McCoy, 957 F.2d at 373 (“[T]he issue
of pretext does not address the correctness or desirability of
reasons offered for employment decisions. Rather, it
addresses the issue of whether the employer honestly believes
in the reasons it offers.”).

16
 (B) FMLA Interference Claim

To make a claim of interference under the FMLA, a
plaintiff must establish:

(1) he or she was an eligible
employee under the FMLA; (2)
the defendant was an employer
subject to the FMLA’s
requirements; (3) the plaintiff was
entitled to FMLA leave; (4) the
plaintiff gave notice to the
defendant of his or her intention
to take FMLA leave; and (5) the
plaintiff was denied benefits to
which he or she was entitled
under the FMLA.

Ross, 755 F.3d at 191-92 (citation omitted); see also Sommer
v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)
(observing that an interference claim requires an employee to
show that he was not only entitled to FMLA benefits but also
that he was denied those benefits). Unlike an FMLA
retaliation claim, “[a]n interference action is not about
discrimination, it is only about whether the employer
provided the employee with the entitlements guaranteed by
the FMLA.” Callison v. City of Phila., 430 F.3d 117, 120 (3d
Cir. 2005); see Scruggs, 688 F.3d at 825 (quoting Shaffer v.
Am. Med. Ass’n, 662 F.3d 439, 443 (7th Cir. 2011)) (“An
[FMLA] interference claim does not require an employee to
prove discriminatory intent on the part of the employer;
rather, such a claim ‘requires only proof that the employer
denied the employee his or her entitlements under the
Act.’”).10 Accordingly, “[b]ecause [an FMLA interference
action] is not about discrimination, a McDonnell-Douglas

10
Capps’ brief acknowledges this requirement. See Appellant
Br. 18 (citing Callison, 430 F.3d at 119) (“In order to state a
claim for interference under the FMLA, a plaintiff must show
that the plaintiff was denied benefits to which he or she was
entitled under the Act.”).

17
burden-shifting analysis is not required.” Sommer, 461 F.3d
at 399.

Here, the District Court found that Capps’ FMLA
interference claim failed because Capps was unable to satisfy
the fifth requirement – that he was denied a benefit to which
he was entitled under the FMLA. See Capps, 147 F. Supp.3d
at 335. In support of its decision, the District Court cited
Ross, where we found that “[b]ecause [the employee]
received all of the benefits to which he was entitled by taking
leave and then being reinstated to the same position from
which he left, and thus cannot satisfy the fifth prong of the
interference analysis, he fails to make a prima facie showing
of interference.” See Ross, 755 F.3d at 192. Capps returned
from his FMLA leave, including the February 14 and 15,
2013 FMLA leave, to the same position and same benefits.
(JA 13, 48-49.)

Capps argues that his termination amounted to a
deprivation of benefits and therefore interference under the
FMLA. “[W]e have made it plain that, for an interference
claim to be viable, the plaintiff must show that FMLA
benefits were actually withheld.” See Ross, 755 F.3d at 192
(citing Callison, 430 F.3d at 119). Here, Capps is unable to
show that. Under the specific circumstances in this case,
since he is unable to point to evidence in the record indicating
that he was denied a benefit to which he was entitled under
the FMLA, Mondelez was entitled to summary judgment on
the FMLA interference claim.11

11
Capps points to Erdman v. Nationwide Ins. Co., 582 F.3d
500 (3d Cir. 2009), in support of the contention that the facts
in this case constitute both FMLA retaliation and interference
claims. Id. at 509 (holding that firing an employee for a valid
FMLA leave request may constitute interference with the
employee’s FMLA rights as well as retaliation against the
employee). However, Erdman is distinguishable from this
case. In Erdman, the employee “requested FMLA leave but
was fired before the leave was scheduled to begin,” i.e.,
before the employee actually took the leave. Id. Unlike
Capps’ case, the issue in Erdman was whether an employee
must take FMLA leave to prove a retaliation claim where the
employee requested FMLA leave but was fired before
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IV. ADA CLAIM

Finally, Capps claimed in the District Court that
Mondelez failed to accommodate his disability as required
under the ADA.12 See Capps, 147 F. Supp.3d at 340. The
District Court found that this claim “fails as a matter of law
because Capps never made a request for an accommodation.”
Id.

On appeal, Capps devotes only one paragraph to his
ADA failure-to-accommodate claim. Specifically, he argues
that “[r]equests for intermittent leave may be protected by the
ADA” and that a request for FMLA leave does not bar an
ADA retaliation claim. See Appellant Br. 29-30 (emphasis
added).13

actually using the leave. Id. at 508. It is not surprising that
such facts may constitute an interference claim and a
retaliation claim since the employee was fired before
receiving the benefit of actually taking the leave or being
reinstated to the same position following the leave. Here, of
course, Capps requested the FMLA leave in question, that
request was approved, Capps took the leave in question, and
Capps was reinstated to the same or equivalent position after
taking the approved leave.
12
Capps also included in his Second Amended Complaint
claims for retaliation and discrimination under the ADA, but
he does not specifically pursue those claims in his appellate
brief. In any event, as with Capps’ FMLA retaliation claim,
the McDonnell Douglas framework applies, and his ADA
retaliation and discrimination claims fail for the same reason
– a lack of evidence that Mondelez’s legitimate, non-
discriminatory reason for firing Capps was a pretext. See,
e.g., Pulczinski, 691 F.3d at 1003-04, 1007 (applying the
honest belief rule to an ADA claim).
13
While the Equal Employment Opportunity Commission
(“EEOC”), as amicus curiae, takes no position on the ultimate
disposition of this case, see EEOC Br. 2 n.1, the EEOC
requests that this Court hold that a request for leave under
19
 Mondelez responds that “Capps’ one-paragraph
placeholder [in his brief] should be construed as a waiver of
any argument related to the ADA.” See Appellee Br. 27.
Furthermore, Mondelez contends that the District Court
properly concluded that Capps’ request for FMLA leave,
standing alone, could not serve as an accommodation under
the ADA. It is unnecessary to address whether Capps waived
his ADA claim on appeal, since, even assuming the claim was
not waived, it is clearly without merit.

We recognize that a request for FMLA leave may
qualify, under certain circumstances, as a request for a
reasonable accommodation under the ADA, see 29 C.F.R. §
825.702(c)(2), and to the extent that the District Court held
otherwise, that was error. However, in this case, even
assuming that Capps had a disability as defined by the ADA,
that Capps was a qualified individual under the ADA, and
that Capps’ request for intermittent FMLA leave also
constituted a request for a reasonable accommodation under
the ADA, the record does not support a view that Mondelez
discriminated against Capps under the ADA or refused to
accommodate any such request.

A plaintiff bringing an ADA failure-to-accommodate
claim must establish: “(1) he was disabled and his employer
knew it; (2) he requested an accommodation or assistance; (3)
his employer did not make a good faith effort to assist; and
(4) he could have been reasonably accommodated.”
Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240,
246 (3d Cir. 2006);14 see Colwell v. Rite Aid Corp., 602 F.3d
495, 504 (3d Cir. 2010) (citing Williams v. Phila. Housing
Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004)). Here,
even assuming, arguendo, that Capps’ requests for

both the FMLA and the ADA is not inherently contradictory,
id. at 21-22.
14
Although Armstrong involved a claim under the N.J. Law
Against Discrimination (“LAD”), “[t]he requirements for
failure to accommodate claims under New Jersey’s LAD have
been interpreted in accordance with the [ADA].” Armstrong,
438 F.3d at 246 n.12.
20
intermittent FMLA leave constituted requests for a reasonable
accommodation under the ADA as well, Mondelez continued
to approve Capps’ requested leave, and indeed, Capps took
the requested leave. Thus, Mondelez provided and Capps
received the accommodation he asked for. There is clearly a
lack of evidence to show that Mondelez did not make a good
faith effort in accommodating Capps’ request for intermittent
leave. Since the record here does not support any failure to
accommodate Capps, we affirm the District Court’s grant of
summary judgment on Capps’ failure-to-accommodate claim
under the ADA. See Oss Nokalva, Inc. v. European Space
Agency, 617 F.3d 756, 761 (3d Cir. 2010) (observing that we
may affirm a judgment on any ground apparent from the
record, even if the District Court did not reach it).

IV. CONCLUSION

For the foregoing reasons, we affirm the District
Court’s Order granting summary judgment in favor of
Mondelez.

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