NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1763
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KELLY SOUTNER,
Appellant
v.
PENN STATE HEALTH,
doing business as
The Milton Hershey Medical Center
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-18-cv-00271)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 8, 2020
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Before: MCKEE, PORTER, and FISHER,
Circuit Judges
(Filed: January 13, 2021)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
PORTER, Circuit Judge.
Penn State Health (the “Hospital”) fired Kelly Soutner for accumulating too many
unscheduled absences. Soutner contends those absences were protected under federal and
state law, so she sued the Hospital under the Family and Medical Leave Act (“FMLA”),
the Americans with Disabilities Act (“ADA”), and the Pennsylvania Human Relations
Act (“PHRA”). The District Court held that Soutner’s failure to comply with the
Hospital’s absence-reporting policy defeats all her claims. On appeal, Soutner offers no
justification that would excuse her failure to comply with the Hospital’s policy. Thus, we
will affirm the District Court’s grant of summary judgment for the Hospital.
I
Soutner worked at the Hospital as an administrative secretary. The Hospital
requires its employees to follow explicit attendance policies and discourages unscheduled
absences. If an employee accumulates too many unscheduled absences in a twelve-month
period, a supervisor will provide the employee with attendance counseling and written
warnings. Nine unscheduled absences is grounds for termination after review by a
human-resources representative. If an employee qualifies for FMLA leave, however, she
can avoid an unscheduled absence by documenting the absence in accordance with the
Hospital’s FMLA policies. The Hospital employs a two-step system for documenting
FMLA absences: an employee must (1) request an FMLA absence and then (2) report the
FMLA absence.
To request an FMLA absence, an employee must submit an FMLA-leave request
through a third-party program called FMLASource. After FMLASource approves the
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request, the employee must then report the absence. To report an FMLA absence, the
employee must (1) report to the Hospital by calling a designated “call-off” line within
twenty-four hours following the absence and (2) report to FMLASource within fifteen
days following the absence. To report an absence as FMLA-leave via the call-off line, the
employee must say whether she is using “family sick time, FMLA [leave], PTO, et
cetera.” App. 123–24.
This litigation arises in part from competing definitions. The parties differ in their
understanding of what it means to “request,” “designate,” “report,” and “provide notice
of” an absence. Clarifying these terms very nearly resolves the case. Under the Hospital’s
policies, an employee requests an FMLA absence through FMLASource. If
FMLASource approves the request, that absence is designated as FMLA leave.
Following the request, approval, and designation, an employee must still report the
absence as FMLA once the absence is taken. Defining these terms clarifies the legal
question: under the FMLA, is providing notice of an FMLA absence the act of (1) merely
requesting FMLA leave, or (2) requesting and reporting FMLA leave?
Soutner requested and was approved for FMLA leave for various days over a
twelve-month period. She was absent from work during those time periods but did not
report the absences in accordance with the Hospital’s call-off procedures. After eight
unscheduled absences, Soutner met with her supervisor, Amy Cutman, for attendance
counseling. Cutman provided Soutner copies of the attendance policies and reminded her
that she needed to report her absences as FMLA via the call-off line. Soutner requested
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retroactive FMLA approval for some absences but still did not report any absences as
FMLA. After another unscheduled absence, Soutner received a final written warning.
Soutner accumulated her ninth unscheduled absence when she left work early one
day because of intestinal distress. Soutner did not notify Cutman that she had gone home
until about two hours after she left. Once again, she did not report the absence via the
call-off line. Two days later, Cutman sent Soutner a termination memo. The Hospital
fired Soutner for accumulating nine unscheduled absences and abandoning work without
notifying her supervisor.
Soutner brought a host of employment claims against the Hospital. She claimed
(1) interference under the FMLA; (2) retaliation under the FMLA; (3) retaliation under
the ADA and PHRA; (4) failure to accommodate under the ADA and PHRA; and (5)
disability discrimination under the ADA and PHRA. The District Court granted summary
judgment for the Hospital, dismissing all of Soutner’s claims. Soutner timely appealed.
II
The District Court had subject-matter jurisdiction over the FMLA and ADA
claims under 28 U.S.C. § 1331 and supplemental jurisdiction over the PHRA claims
under 28 U.S.C. § 1367. We have appellate jurisdiction under 28 U.S.C. § 1291. We
review the District Court’s grant of summary judgment de novo and draw all reasonable
inferences in favor of the nonmoving party. Ross v. Gilhuly, 755 F.3d 185, 191 n.9 (3d
Cir. 2014). We will affirm summary judgment only when “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).
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A
The FMLA prohibits employers from interfering with employees’ FMLA rights.
29 U.S.C. § 2615(a)(1). A plaintiff claiming interference must show that (1) she was an
eligible employee under the FMLA, (2) her employer was subject to the FMLA’s
requirements, (3) she was entitled to FMLA leave, (4) she gave notice to her employer of
her intention to take FMLA leave, and (5) she was denied benefits to which she was
entitled under the FMLA. Ross, 755 F.3d at 191–92. Only the fourth element—whether
Soutner notified the Hospital of her intention to take FMLA leave—is in dispute.
An employee must comply with the employer’s requirements for requesting leave
unless those requirements conflict with a substantive provision of the FMLA. Callison v.
City of Philadelphia, 430 F.3d 117, 120–21 (3d Cir. 2005); 29 C.F.R. §§ 825.302–.303
(2020). An employer’s policy requiring an employee on approved FMLA leave to call in
sick during work hours and report the absence does not conflict with the FMLA.
Callison, 430 F.3d at 120; 29 C.F.R. §§ 825.302–.303. As the Tenth Circuit put it, “an
employer generally does not violate the FMLA if it terminates an employee for failing to
comply with a policy requiring notice of absences, even if the absences that the employee
failed to report were protected by the FMLA.” Twigg v. Hawker Beechcraft Corp., 659
F.3d 987, 1008–09 (10th Cir. 2011).
Soutner was required to comply with the Hospital’s reporting policies. As in
Callison, the Hospital’s call-off procedures do not conflict with any substantive provision
of the FMLA. See Callison, 430 F.3d at 120. Indeed, Soutner does not even argue that
they conflict. Neither does Soutner dispute that she failed to report the absences as
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FMLA via the call-off system. Because the Hospital could require Soutner to follow its
reporting procedures, and there is no genuine dispute that Soutner did not follow them, as
a matter of law the Hospital did not interfere with Soutner’s FMLA rights.
Soutner argues that her request and approval for FMLA leave satisfy the notice
element of her interference claim. But partially complying with the Hospital’s policies
does not constitute notice. See id. Soutner’s repeated exhortations that her absences were
designated as FMLA leave amount to nothing if she did not follow through and report
those absences as required and as she was specifically counseled by Cutman. Again,
Callison is on point: “[T]he call-in procedure does not serve as a pre-requisite to
entitlement of FMLA leave. Rather, the procedure merely sets forth obligations of
employees who are on leave, regardless of whether the leave is pursuant to the FMLA.”
Id. The Hospital acted within its prerogative in firing Soutner for her continued failure to
report her absences in accordance with its policies. The District Court properly granted
summary judgment for the Hospital on Soutner’s FMLA interference claim.
B
Soutner’s FMLA retaliation claim fares no better. The FMLA prohibits employers
from retaliating against an employee asserting her FMLA rights. 29 U.S.C. § 2615(a)(2).
An employee claiming retaliation must show 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.” Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012). Like the interference claim, the
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FMLA retaliation claim turns on whether Soutner notified the Hospital of her protected
leave.
To invoke FMLA rights, “employees must provide adequate notice to their
employer about their need to take leave.” Id. at 303. In providing notice, “an employee
must comply with the employer’s usual and customary notice and procedural
requirements.” 29 C.F.R. § 825.303(c); accord id. § 825.302(d). The FMLA regulations
explicitly permit “requir[ing] employees to call a designated number.” 29 C.F.R.
§ 825.303(c); accord id. § 825.302(d). Once again, there is no dispute that Soutner did
not comply with the Hospital’s reporting requirements.
Soutner renews her insistence that she requested and was approved for FMLA
leave. That argument works no better the second time. Hospital policy required Soutner
to report her absence as FMLA leave. Soutner requesting—but not reporting—her FMLA
leave is not “compl[iance] with the employer’s usual and customary notice and
procedural requirements.” 29 C.F.R. § 825.303(c); accord id. § 825.302(d). Because she
failed to report her absences in accordance with the Hospital’s policies, Soutner cannot
show that she “invoked her right to FMLA-qualifying leave.” Lichtenstein, 691 F.3d at
302. The District Court properly granted summary judgment for the Hospital on
Soutner’s FMLA retaliation claim.
C
The ADA and PHRA allow for retaliation claims similar to the FMLA retaliation
claim. 42 U.S.C. § 12203(a); 43 Pa. Cons. Stat. § 955(d) (2020). To establish a prima
facie retaliation claim under the ADA, an employee must show “(1) protected employee
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activity; (2) adverse action by the employer either after or contemporaneous with the
employee’s protected activity; and (3) a causal connection between the employee’s
protected activity and the employer’s adverse action.” Krouse v. Am. Sterilizer Co., 126
F.3d 494, 500 (3d Cir. 1997). The employer can rebut the prima facie case by providing a
“a legitimate, non-retaliatory reason for its adverse employment action,” which shifts the
burden back to the employee to show that the employer’s reason is pretextual. Id. at 500–
01. As for the PHRA claim, we apply the ADA standard “except where there is
something specifically different in its language requiring that it be treated differently.”
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002). Neither party points to
any relevant difference.
Even assuming Soutner could establish a prima facie case for retaliation under the
ADA, she has not rebutted the Hospital’s legitimate explanations for firing her. The
Hospital claims it did not fire Soutner for taking FMLA leave—rather, it fired her for
accumulating nine unscheduled absences resulting from Soutner’s failure to report the
absences as FMLA and for abandoning work without notifying her supervisor. Indeed,
the Hospital consistently granted Soutner’s belated requests for FMLA leave and
repeatedly reminded Soutner to report her absences as FMLA via the call-off line.
Soutner’s conclusory response is that the Hospital’s reasons are illegitimate and
pretextual. But as the District Court found, “Soutner has not introduced any direct
evidence to indicate that in reaching its termination decision, [the Hospital] considered
anything other than Soutner’s failure to report and designate her absences.” App. 22 n.2.
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The District Court properly granted summary judgment for the Hospital on Soutner’s
ADA and PHRA retaliation claims.
D
The ADA and PHRA also require employers to make reasonable accommodations
for their employees’ disabilities. 42 U.S.C. § 12112(b)(5)(A); see 43 Pa. Cons. Stat.
§ 955(h)(3.2). An employer’s failure to engage in a good-faith interactive process with
the employee constitutes a failure to accommodate under the ADA. Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 312–13 (3d Cir. 1999). To show such a failure, a
disabled employee must demonstrate:
1) the employer knew about the employee’s disability; 2) the employee
requested accommodations or assistance for his or her disability; 3) the
employer did not make a good faith effort to assist the employee in seeking
accommodations; and 4) the employee could have been reasonably
accommodated but for the employer’s lack of good faith.
Id. at 319–20. An employer can show good faith by, for example, “meet[ing] with the
employee who requests an accommodation . . . and discuss[ing] available alternatives
when the request is too burdensome.” Id. at 317. We apply the same legal standards to the
PHRA claim. Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n.3 (3d Cir. 2010).
Soutner has failed to show that the Hospital did not make a good-faith effort to
accommodate her. Cutman consistently met with Soutner about her absences, explained
to her the Hospital’s call-off procedures, and encouraged Soutner to apply for FMLA
leave and report the absences as FMLA. Soutner also spoke with FMLASource
representatives who counseled her on the policies and how to report her absences as
FMLA. The Hospital’s actions demonstrate a good-faith effort to accommodate Soutner
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while she accumulated nine unscheduled absences. See Taylor, 184 F.3d at 317. The
record simply does not support Soutner’s contention that the Hospital “sat by while
Soutner accrued absences.” Appellant’s Br. 18. The District Court properly granted
summary judgment for the Hospital on Soutner’s ADA and PHRA failure-to-
accommodate claims.
E
Finally, the ADA and PHRA prohibit employers from discriminating against
employees for their disabilities. 42 U.S.C. § 12112; 43 Pa. Cons. Stat. § 955. To establish
a prima facie case of disability discrimination, an employee must show that she “(1) has a
‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered an adverse employment
action because of that disability.” Turner v. Hershey Chocolate USA, 440 F.3d 604, 611
(3d Cir. 2006). Like the failure-to-accommodate claim, the employer can rebut the prima
facie case by providing a “legitimate, nondiscriminatory reason for the employee’s
rejection,” which shifts the burden back to the employee to show that the employer’s
reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (internal
quotation marks omitted) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)).
Even assuming Soutner could establish the prima facie case for discrimination
under the ADA, she has not rebutted the Hospital’s legitimate explanations for firing her.
The Hospital explains that part of the reason for firing Soutner was her failure to report
her absences in accordance with the Hospital’s policies. Soutner argues that the
Hospital’s proffered reason is illegitimate because the absences were designated as
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FMLA. But regardless of whether those absences were FMLA-designated, Soutner was
required to comply with the Hospital’s reporting procedures. See Callison, 430 F.3d at
120; 29 C.F.R. §§ 825.302–.303. Soutner did not comply, so the Hospital fired her. The
Hospital did not violate the FMLA, and Soutner makes no other argument rebutting the
Hospital’s proffered reasons for terminating her employment. The District Court properly
granted summary judgment for the Hospital on Soutner’s ADA and PHRA discrimination
claims.
* * *
The District Court correctly held that Soutner was required to follow the
Hospital’s absence-reporting procedures. There is no dispute that Soutner failed to do so.
We will affirm the District Court’s order dismissing Soutner’s claims.
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