691 F.3d 294 (3rd Cir. 2012), 11-3419, Lichtenstein v. University of Pittsburgh Medical Center

Docket Nº:11-3419.
Citation:691 F.3d 294
Opinion Judge:VAN ANTWERPEN, Circuit Judge.
Party Name: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.
Attorney:Charles H. Saul, Esq., [Argued], Kyle T. McGee, Esq., Margolis Edelstein, Pittsburgh, PA, for Appellant. John J. Myers, Esq., [Argued], Andrew T. Quesnelle, Esq., Eckert, Seamans, Cherin & Mellott LLC, Pittsburgh, PA, for Appellees.
Judge Panel:Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges. AMBRO, Circuit Judge, Dissenting.
Case Date:August 03, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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691 F.3d 294 (3rd Cir. 2012)

Jamie LICHTENSTEIN, Appellant


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.

No. 11-3419.

United States Court of Appeals, Third Circuit.

August 3, 2012

Argued on June 19, 2012.

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[Copyrighted Material Omitted]

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Charles H. Saul, Esq., [Argued], Kyle T. McGee, Esq., Margolis Edelstein, Pittsburgh, PA, for Appellant.

John J. Myers, Esq., [Argued], Andrew T. Quesnelle, Esq., Eckert, Seamans, Cherin & Mellott LLC, Pittsburgh, PA, for Appellees.

Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges.


VAN ANTWERPEN, Circuit Judge.


Appellant Jamie Lichtenstein alleges that her employer, University of Pittsburgh Medical Center (UPMC),1 terminated her employment in violation of the Family 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.


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.

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

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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 work 2 and/or attend a concert. Lichtenstein's coworkers 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 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 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

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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 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 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

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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 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...

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