PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4625

_____________

VANESSA BUDHUN,

 Appellant 

v.

READING HOSPITAL AND MEDICAL CENTER

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 10-cv-06921)

District Judge: Hon. Lawrence F. Stengel

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 10, 2014

Before: CHAGARES, SHWARTZ, and ALDISERT, 

Circuit Judges.

(Filed: August 27, 2014)

Justin L. Swidler, Esq.

Swartz Swidler

1101 Kings Highway North

Suite 402

Cherry Hill, NJ 08034

Counsel for Appellant

Vincent Candiello, Esq.

Post & Schell

17 North 2nd Street

12th Floor

Harrisburg, PA 17101

Counsel for Appellee
2

____________

OPINION

____________

CHAGARES, Circuit Judge.

Vanessa Budhun appeals the District Court’s grant of 

summary judgment to her employer, The Reading Hospital 

and Medical Center (“Reading”) on her Family Medical 

Leave Act (“FMLA”), 29 U.S.C. §§ 2691, et seq., 

interference and retaliation claims. She also appeals the 

District Court’s denial of her motion for leave to amend her 

complaint to add a claim for violation of the Americans with 

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. For 

the reasons that follow, we will vacate the judgment of the 

District Court with respect to her FMLA claims and affirm 

the District Court’s denial of her motion for leave to amend 

her complaint.

I.

The following facts are undisputed unless otherwise 

noted. In 2008, Budhun was hired by Berkshire Health 

Partners (“BHP”), an affiliate of Reading, as a credentialing 

assistant. The written job description for this position 

required her to generate and maintain records, and to 

demonstrate “efficiency and accuracy in the credentialing” of 

network healthcare providers. Appendix (“App.”) 140. The 

written job description noted that the job required preparing 

and mailing credentialing packets, processing and verifying 

credentialing information, performing data entry, scanning, 

and similar tasks. App. 140-43. Budhun estimated that 

approximately sixty percent of her job was typing, a figure 

Reading does not contest. App. 82. Budhun’s direct 

supervisor was Sherri Alvarez; Alvarez reported to the 

director of the credentialing department, Dawn Dreibelbis.

In accordance with applicable law, Reading provides 

its employees with up to twelve weeks of job-protected 

FMLA leave during any rolling twelve-month period. 

Reading requires employees to submit a leave certification 

from a healthcare professional prior to approving any FMLA 
3

leave. App. 155. It also requires employees to submit a 

“fitness-for-duty” certification in the form of a return to work 

form that confirms that the employee can work “without 

restriction” before returning. App. 159. If an employee does 

not contact Reading’s human resources department at the end 

of his or her leave, Reading’s policy states that it will 

consider the employee to have voluntarily resigned. Id. 

Reading also has a transfer policy which prohibits 

employees who have been disciplined by a final written 

warning in the last year from transferring to another position 

within Reading. App. 151. As is pertinent to this appeal, 

Budhun received a final written warning on January 25, 2010 

for tardiness.

Prior to taking the FMLA leave that is the subject of 

this suit, Budhun took approximately four weeks of FMLA 

leave in two separate segments between March 31, 2010 and 

May 7, 2010. During this period of time, Ann Rushow, an 

employee from a different department, filled in for Budhun 

part of the time. Rushow remained in this part-time role upon 

Budhun’s return.

Budhun broke her fifth metacarpal, the bone in her 

hand connecting her wrist to her pinky finger, on July 30, 

2010 in an incident unrelated to her job. She arrived at work 

on Monday, August 2, 2010 with a metal splint on her right 

hand. At 10:33 a.m. that day, she received an email from 

Stacey Spinka, a Reading human resources employee, stating 

“Your supervisor has made us aware that you have an injury 

that prevents you from working full duty,” and providing 

Budhun with FMLA leave forms. App. 244. Budhun 

apparently then left work and saw a physician assistant at 

OAA Orthopedic Specialists that same day. App. 253. 

Budhun returned to OAA and saw Dr. Richard Battista 

on August 3 and August 10, 2010. Dr. Battista taped the 

pinky, ring, and middle fingers on her right hand together to 

stabilize her pinky finger. According to Budhun, she asked 

Dr. Battista to fill out the FMLA leave certification form. 

She told Dr. Battista that her job required typing, and that she 

felt she could type with the five fingers on her left hand, and 

her thumb and index finger on her right hand. App. 315. 
4

On August 12, 2010, Budhun emailed Spinka some of 

the FMLA paperwork that she had been provided. App. 429. 

Although the record is not entirely clear, it appears that 

Budhun attached to her email a portion of the hospital’s leave 

of absence form and a note from her doctor. The note was 

dated August 10, 2010 and provided that she could return to 

work on Monday, August 16, 2010, stating, “No restrictions 

in splint.” In her email, Budhun clearly stated that she was 

going to return on Monday.

Budhun returned to her place of work at BHP as 

promised on August 16, 2010. At 11:06 a.m., Budhun 

emailed Spinka again, attaching the other portion of the 

hospital’s leave of absence form. App. 431. This form stated 

an expected return to work date of August 16, 2010. App. 

263. Budhun stated that she provided the FMLA leave 

certification to Dr. Battista on August 3, and that he said it 

would take ten to fifteen days to complete. Also attached to 

this email was a form giving Reading authorization to contact 

Budhun’s medical providers should it need to clarify any of 

the information that Budhun provided. App. 265. 

In this email, Budhun stated that she still had a splint 

on her right hand, but that she could “type slowly and write a 

little bit, but not as fast as I used to. . . . I could work but not 

fast.” App. 431. Spinka replied at 11:25 a.m., informing 

Budhun that because her return to work note “states ‘no 

restrictions’, therefore you should be at full duty (full speed) 

in your tasks. If you are unable to do so, you should contact 

your physician and ask him to write you and [sic.] excuse to 

stay out of work until you may do so.” Id. Budhun 

responded six minutes later, stating that she could “use my 

index and thumb finger of that [right] hand so I can’t go at 

full speed, but I could work.” App. 430. Spinka again 

replied and informed Budhun that she needed to perform at 

the “same capacity” as she did prior to going on leave and 

that she should have full use of all her digits in order to be 

considered full duty. Id. “It seems that your physician was 

incorrect in stating that you could work unrestricted. If you 

were truly unrestricted in your abilities, you would have full 

use of all your digits.” Id. The record does not indicate 
5

whether this was the last conversation between Budhun and 

Spinka or anybody else at the hospital that morning.

What is clear is that Budhun, under the impression that 

Reading would not permit her to work with three fingers in 

her right hand incapacitated, then left her place of work and 

went back to Dr. Battista’s office. At 1:34 p.m. on that same 

day, August 16, Dr. Battista’s office faxed Budhun’s 

completed FMLA leave certification form to Reading. App. 

271. In it, Dr. Battista checked “yes” next to the question 

asking whether Budhun was unable to perform “any of his/her 

job functions.” App. 272. In the field below this question, 

which asked which job functions Budhun could not perform, 

Dr. Battista simply wrote “out of work until 08/16/10.” Id. 

On the next page, Dr. Battista estimated the period of 

incapacity as “08/02/10-08/16/10.” App. 273. Dr. Battista 

signed and dated the FMLA leave certification form on that 

same day, August 16, 2010. 

The final page in Dr. Battista’s fax was, however, 

somewhat inconsistent with all of the information he had 

previously given. The last page consisted of a one line note, 

stating, “[p]lease excuse patient from work until reevaluation 

on 9/8/2010.” App. 275. This note was signed and dated 

August 16, 2010 as well. The next day, Reading approved 

FMLA leave for Budhun from August 2, 2010 through 

September 8, 2010. App. 276.

Budhun remained out of work on FMLA leave. Dr. 

Battista evaluated her again on September 8, 2010, prescribed 

occupational therapy for her hand, and scheduled a follow-up 

appointment for November 9, 2010. Budhun emailed Spinka 

and Alvarez that day, informing them that the doctor would 

release her to work as soon as she could move her fingers 

without problems. App. 340. Spinka responded that because 

Budhun’s approved FMLA leave expired on September 8, 

Reading would need a note from Budhun’s doctor. Budhun 

faxed Spinka a note dated September 10, 2010, in which Dr. 

Battista stated that Budhun would be out of work until her 

next doctor’s appointment in November. App. 280. Spinka 

then extended Budhun’s FMLA leave until September 23, 

2010 (the date at which her twelve weeks of allotted FMLA 
6

leave was exhausted), and approved non-FMLA leave 

through November 9, 2010. App. 287-88.

Budhun emailed Spinka again on September 13, 

informing her that the “doctor” had informed her that he 

would release her to work prior to November if she felt better. 

App. 283. In this email, she stated that she thought she would 

be able to work by the end of the month. Id. Budhun 

attended several more occupational therapy sessions 

throughout the remainder of September.

On September 15, 2010, Alvarez, Dreibelbis, Spinka, 

Chuck Wills, the President and CEO of BHP, and Gretchen 

Shollenberger, the director of human resources, had a 

meeting. According to Alvarez, the purpose of the meeting 

was to discuss what BHP would do if Budhun did not return 

from leave by September 23, 2010. The meeting participants 

agreed that if Budhun did not return to work by that date, they 

would offer Budhun’s job to Rushow. App. 394, 405. When 

Budhun did not return by the end of her FMLA leave, BHP 

offered the position to Rushow on September 25, 2010. 

Rushow accepted.

After replacing Budhun, Dreibelbis and Alvarez 

attempted to contact her on September 27 and 28 but were 

unable to reach her. On September 29, Budhun emailed them 

and informed them that she would be able to secure a return 

to work note the following day, and be able to return to work 

on October 4, 2010. App. 329. Alvarez and Spinka called 

Budhun on that day and informed her that they had replaced 

her with Rushow. App. 320. Budhun was not eligible to 

transfer to another position within the hospital because of her 

prior written discipline. She was told that if her doctor 

released her to work before she found another position at the 

hospital (even though she would have to apply as though she 

were an outsider), she would be terminated. App. 321. 

Alvarez emailed her on October 6, 2010, asking her to come 

pick up her belongings and turn in her identification badge 

and keys. App. 328. 

Budhun remained on leave, continuing to be eligible 

for fringe benefits, through November 9, 2010. At the 

expiration of her leave, she did not contact Reading. Reading 
7

considered her to have voluntarily resigned at the end of her 

leave, consistent with its internal leave policy. App. 159.

Budhun brought suit on November 19, 2010, alleging 

FMLA interference and retaliation claims. After discovery 

closed, Reading moved for summary judgment on both of 

Budhun’s claims, and the District Court granted the motion. 

It held that Reading was entitled to summary judgment on 

Budhun’s interference claim because “[s]he was never 

medically cleared to return to work and . . . a doctor’s note 

was never provided to defendant.” App. 16. It also 

concluded that Budhun was never entitled to the protections 

of the FMLA because she claimed that she was fully capable 

of working at the time that she attempted to return to work on 

August 16, 2010. Id. The District Court granted summary 

judgment on Budhun’s retaliation claim because it determined 

that Budhun could not establish a prima facie case as a matter 

of law. It held that Budhun suffered no adverse employment 

action because Budhun was medically unable to return to

work at the conclusion of her FMLA leave. It also concluded 

that Budhun could not establish any temporal nexus between 

her termination and her FMLA leave because “Budhun was 

terminated on November 10, 2010 almost two months after 

she took FMLA.” App. 18. Budhun timely appealed.

II.

The District Court had federal question jurisdiction 

pursuant to 28 U.S.C. § 1331. We have jurisdiction over the 

final decision of the District Court pursuant to 28 U.S.C. § 

1291. We exercise plenary review of an order granting 

summary judgment and apply the same standard that the 

District Court applied. Jakimas v. Hoffmann–La Roche, Inc., 

485 F.3d 770, 777 (3d Cir. 2007). Summary judgment is 

appropriate only 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). We view the facts in 

the light most favorable to the non-moving party. Moore v. 

City of Phila., 461 F.3d 331, 340 (3d Cir. 2006). The initial 

burden is on the party seeking summary judgment to identify 

evidence that demonstrates an absence of a genuine issue of 

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986). If the moving party meets this burden, then it falls to 
8

the non-moving party to present evidence on which a jury 

could reasonably find for it. Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 252 (1986).

III.

The FMLA was enacted, in part, to “balance the 

demands of the workplace with the needs of families,” and 

“to entitle employees to take reasonable leave for medical 

reasons.” 29 U.S.C. § 2601(b)(1), (2). It requires certain 

employers to provide their employees with up to twelve 

weeks of leave in the event that the employee has a serious 

medical condition. Id. § 2612(a)(1)(D). An employer faces 

liability under the Act and its implementing regulations if it 

interferes with a right that the Act guarantees, or if it 

retaliates against an employee for invoking the Act’s 

protections. Id. § 2615(a)(1); 29 C.F.R. § 825.220(c).1 There 

is no dispute that Reading is an employer that was required to 

make FMLA leave available, that Budhun was eligible for 

FMLA leave, or that her hand injury qualified as a serious 

medical condition. Budhun argues that the District Court’s 

grant of summary judgment to Reading on her FMLA 

interference and retaliation claims was in error. We agree.

A.

Budhun contends that she adduced enough evidence to 

create a genuine dispute of material fact regarding whether 

Reading interfered with her right to be restored to her position 

on August 16, 2010, the day Spinka told her that she needed 

full use of all ten fingers before she could be reinstated 

despite the fact that there was no essential function of her job 

 

1 All citations to the Code of Federal Regulations are to the 

FMLA regulations that were in effect in 2010, when the facts 

relevant to this case occurred. See Chase Bank USA, N.A. v. 

McCoy, 131 S. Ct. 871, 878 (2011) (“Our analysis begins 

with the text of [the regulation] in effect at the time this 

dispute arose.”). The Department of Labor amended some of 

the FMLA regulations in 2013. See Final Rule, 78 Fed. Reg. 

8834-01 (Feb. 6, 2013).
9

that she could not perform. She claims that this action 

interfered with her right to be restored to her position.

The FMLA provides that it “shall be unlawful for any 

employer to interfere with, restrain, or deny the exercise of or 

the attempt to exercise, any right” that it guarantees. 29 

U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b) (noting 

that violations of the regulations are actionable as well). In 

order to assert an FMLA interference claim, an employee 

“only needs to show that [1] he was entitled to benefits under 

the FMLA and [2] that he was denied them.” Callison v. City 

of Phila., 430 F.3d 117, 119 (3d Cir. 2005).

2

 One of the 

rights that it guarantees is “to be restored by the employer to 

the position of employment held by the employee [or an 

equivalent position] when the leave commenced” upon return 

from FMLA leave. 29 U.S.C. § 2614(a)(1). “An employee 

may not be required to take more FMLA leave than necessary 

to resolve the circumstance that precipitated the need for 

leave.” 29 C.F.R. § 825.311(c). 

1.

Reading argues that Budhun did not really attempt to 

return to work on August 16, 2010 because shortly after 

 

2 We have more recently phrased this test in a manner similar 

to the way other courts of appeals have. In Ross v. Gilhuly, 

755 F.3d 185, 191-92 (3d Cir. 2014), we held that in order 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.” See also Goelzer v. Sheboygan Cnty., Wis., 604 

F.3d 987, 993 (7th Cir. 2010) (delineating the elements in a 

similar way). We note that the first four elements of this 

longer test largely collapse into the first element of the 

Callison formulation because in order to be entitled to 

benefits, an employee must be eligible for FMLA protections 

and leave, work for a covered employer, and provide 

sufficient notice.
10

arriving at BHP, she left and sought a note from Dr. Battista 

requesting leave until September 8, 2010. The record, 

however, indicates that there is a genuine dispute of material 

fact regarding whether Budhun attempted to invoke her right 

to return to work on that date. Budhun informed Spinka on 

August 12, 2010 that she intended to return to work on 

Monday, August 16. In the email where she conveyed this to 

Spinka, she attached a note from her treating physician, Dr. 

Battista, stating that she could return on that date and had “no 

restrictions.” At the time she entered her place of work on 

August 16, all of the information that she had from her 

treating physician, and all of the information that she had 

provided to Reading, indicated that she intended to return to 

work as of that day, and could do so with “no restrictions.”

Although we have never had occasion to address 

specifically what constitutes invocation of one’s right to 

return to work, Budhun has adduced enough evidence such 

that a reasonable jury could find that she did so here. Her 

“fitness-for-duty” certification clearly stated that she could 

return to work with “no restrictions.” Prior to permitting an 

employee to return to work, an employer may request that an 

employee provide such a certification, see id. § 825.312, as 

Reading required of Budhun here. In it, an employee’s 

healthcare provider must merely certify that the employee is 

able to resume work. Id. § 825.312(b); see also Brumbalough 

v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1003-04 (6th Cir. 

2005) (interpreting a similar version of the regulation to 

require only a statement that the employee can return to work, 

nothing more). An employer may require that this 

certification address the employee’s ability to perform the 

essential functions of her job, but only if the employer 

provides a list of essential functions to the employee at the 

time that the employer notices the employee that she is 

eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is 

undisputed that Reading did not provide Budhun a list of 

essential functions for her to present to Dr. Battista. Because 

Reading did not provide Budhun with such a list, Dr. 

Battista’s fitness-for-duty certification was based only on the 

description of the job that Budhun would have supplied him.3 

 

3 We do not reach the issue of whether an employer may ever 

decline to allow an employee, whose physician has been 
11

Budhun stated that Dr. Battista specifically asked her if she 

felt able to type, and she responded that she thought she 

could. 

Dr. Battista’s communications were, admittedly, 

somewhat inconsistent. While he stated in Budhun’s fitnessfor-duty certification and her FMLA leave certification that 

she could return to work on August 16, 2010, he sent a 

separate note on August 16 stating that she should be excused 

from work until September 8. He did so, however, only after 

Spinka told Budhun that she could not return, questioned Dr. 

Battista’s assessment that she could, and told her that she 

could not return to work until she had full use of all ten 

fingers.

The regulations contemplate just this kind of situation. 

They state that if the employer requires clarification of the 

fitness-for-duty certification, the employer can contact the 

employee’s health care provider (as long as the employee 

gives the employer permission to do so, which Budhun did 

here). Id. § 825.312(b). However, the “employer may not 

delay the employee’s return to work while contact with the 

health care provider is being made.” Id. Instead of following 

the regulations, Spinka (who is not a doctor) seemingly 

overruled Dr. Battista’s conclusion (albeit reached without an 

employer-provided list of essential job functions) by telling 

Budhun that if she was “truly unrestricted,” she “would have 

full use of all of [her] digits.” App. 267. The record is 

sufficient to allow a reasonable jury to conclude that Budhun

attempted to invoke her right to return to work, and that 

Reading interfered with it when it told Budhun that she could 

not.

Our decision is in accord with the other courts of 

appeals that have considered the question of when an 

employer’s duty to reinstate is triggered. In Brumbalough, 

the plaintiff obtained a note from her doctor stating that she 

could return to work, but could work up to only forty-five 

hours per week, and could not travel out of town more than 

 

provided a list of essential functions and whose physician 

provided a fitness-for-duty certification, from returning to 

work.
12

once per week. 427 F.3d at 999. After her employer 

terminated her, she brought suit for interfering with her 

FMLA right to reinstatement. The Court of Appeals for the 

Sixth Circuit held that “once an employee submits a statement 

from her health care provider which indicates that she may 

return to work, the employer’s duty to reinstate her has been 

triggered under the FMLA.” Id. at 1004. 

The Court of Appeals for the Seventh Circuit came to 

the same conclusion in James v. Hyatt Regency Chi., 707 

F.3d 775 (7th Cir. 2013). There, the plaintiff presented his 

employer with several fitness-for-duty certifications from his 

doctor, although all of them contained job-related restrictions. 

The court held that the employer’s duty to reinstate the 

plaintiff would have been triggered had the fitness-for-duty 

certifications provided that he could have returned to duty 

without restrictions. Id. at 780-81. Because none of the 

doctor’s notes stated that he could work without restrictions, 

no duty was triggered as a matter of law. The difference 

between James and the instant case is apparent: Budhun’s 

August 10, 2010 note from Dr. Battista stated that she could 

return with “no restrictions.”

2.

Even if Budhun actually attempted to return to work 

on August 16, 2010, Reading argues that it is still entitled to 

summary judgment because it would have sent her home 

because she could not perform an essential function of her 

job. The failure to restore an employee to her position at the 

conclusion of her leave does not violate the FMLA if the 

employee remains unable to perform an “essential function” 

of the position. 29 C.F.R. § 825.216(c). The FMLA 

regulations incorporate guidelines set out in the ADA 

regulations that bear on whether a given function is 

“essential.” Id. § 825.123(a). The pertinent ADA regulations 

define “essential functions” to be the “fundamental job 

duties” of the position, and set out a non-exhaustive list of 

evidence that a fact-finder may consider:

(i) The employer’s judgment as to which 

functions are essential;
13

(ii) Written job descriptions prepared before 

advertising or interviewing applicants for the 

job;

(iii) The amount of time spent on the job 

performing the function;

(iv) The consequences of not requiring the 

incumbent to perform the function;

(v) The terms of a collective bargaining 

agreement;

(vi) The work experience of past incumbents in 

the job; and/or

(vii) The current work experience of 

incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(1), (3). Importantly, whether a 

particular function is essential “is a factual determination that 

must be made on a case by case basis based upon all relevant 

evidence.” Turner v. Hershey Chocolate U.S., 440 F.3d 604, 

612 (3d Cir. 2006) (alteration and quotation marks omitted) 

(in the ADA context); see also Brumbalough, 427 F.3d at

1005 (same, in FMLA context); Sanders v. City of Newport, 

657 F.3d 772, 782 (9th Cir. 2011) (same).

The FMLA regulations place the onus on an 

employee’s health care provider — not her employer — to 

certify whether the employee is unable to perform any 

essential function of her job.4 See 29 C.F.R. § 825.123(a) 

(“An employee is ‘unable to perform the functions of the 

position’ where the health care provider finds that the 

employee is unable to work at all or is unable to perform any 

one of the essential functions of the employee’s position 

[within the meaning of the ADA regulations].” (emphasis 

added)). Reading was free to provide Budhun with a list of 

the specific functions that were essential to her job so that Dr. 

 

4

This certification triggers the employer’s duty to reinstate 

only if it provides that the employee can return without 

restriction. Indeed, we have noted that “[t]he FMLA does not 

require an employer to provide a reasonable accommodation 

to an employee to facilitate his return to the same or 

equivalent position at the conclusion of his medical leave.” 

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 

2012) (quotation marks omitted). 
14

Battista could determine if Budhun could perform them, but it 

did not. Instead, Spinka unilaterally determined, over email, 

that Budhun could not perform an essential function because 

she had use of only seven fingers.

Budhun admitted that it was not likely that she could 

type as quickly with seven fingers as she formerly could with 

ten. But this alone does not mean that she could not perform 

this essential function. Budhun adduced evidence that there 

was no minimum words per minute requirement in her written 

job description. App. 311. Both the other employee who had 

Budhun’s equivalent position, and her supervisor Alvarez, 

employed a “hunt and peck” method to type, utilizing only 

one finger on each hand. App. 310. With the use of ten 

fingers, Budhun was able to complete files in about seven 

days, far in advance of BHP’s internal deadlines of sixty to 

ninety days. Combined with Dr. Battista’s note, Budhun has 

adduced enough evidence to allow a reasonable jury to 

conclude that she could, in fact, perform this essential 

function.

3.

Reading also argues that it could not have interfered 

with Budhun’s right to restoration on August 16, 2010, 

because she was not yet on FMLA leave at that time. 

Although she notified Reading on August 2 that she was 

seeking FMLA leave and completed all of her FMLA 

paperwork on August 16, it was not until August 17 that 

Reading approved it. Reading contends that Budhun was not 

eligible for FMLA benefits, including restoration, until it 

approved her leave.

We rejected a similar contention in the retaliation 

context in Erdman v. Nationwide Insurance Co., 582 F.3d 500 

(3d Cir. 2009). There, the plaintiff informed her employer in 

April that she intended to take FMLA leave in the coming 

July and August. Id. at 503. Her employer terminated her in 

May and she brought suit for FMLA retaliation, alleging that 

her employer had terminated her for requesting FMLA leave. 

Nationwide argued that she could not state a retaliation claim 

because she was fired before her leave commenced, and that 

we had previously held that a required element of a prima 
15

facie FMLA retaliation case was that an employee “took an 

FMLA leave.” Id. at 508-09 (quoting Conoshenti v. Pub. 

Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)). 

We held that Nationwide’s interpretation of our 

retaliation test was untenable. So holding would “perversely 

allow a[n] employer to limit an FMLA plaintiff’s theories of 

recovery by preemptively firing her.” Id. at 509. 

“Accordingly, we interpret[ed] the requirement that an 

employee ‘take’ FMLA leave to connote invocation of FMLA 

rights, not actual commencement of leave.” Id.

The same reasoning applies here. A reading of the 

statute that denies all rights that the FMLA guarantees until 

the time that an employer designates the employee’s leave as 

FMLA would be illogical and unfair. It would disempower 

employees taking any sort of short term unforeseen leave 

because it would allow employers to deny FMLA rights until 

the employer decided that the FMLA governed the 

employee’s leave. As we held in Erdman, and consistent with 

Brumbalough and James, it is the time that an employee 

invokes rights under the FMLA that matters, not when his or 

her employer determines whether the employee’s leave is 

covered by the FMLA.

Reading’s argument also runs counter to the FMLA’s 

regulatory scheme. The regulations provide that “‘interfering 

with’ the exercise of an employee’s rights would include, for 

example, not only refusing to authorize FMLA leave, but 

discouraging an employee from using such leave.” 29 C.F.R. 

§ 825.220(b). They also prohibit “manipulation by a covered 

employer to avoid responsibilities under [the] FMLA.” Id. 

This regulation makes clear that an employee’s leave need not 

have been approved by his or her employer in order for an 

employee to invoke rights under the act because an employee 

can state an interference claim even if his or her leave is 

never approved.5

 

5

This interpretation is buttressed by the title of 29 C.F.R. § 

825.220, “Protection for employees who request leave or 

otherwise assert FMLA rights.” The plain language of the 

title indicates that its protections apply to employees who 

“request” leave, not just those whose leave has been 
16

It appears undisputed that the date on which Budhun 

invoked the protections of the Act was August 2, 2010. 

Spinka acknowledged as much that day, when she emailed 

Budhun FMLA leave forms and asked her to complete them. 

Reading does not argue that Budhun was ineligible for FMLA 

leave on August 2 – in fact, on August 17, Reading approved 

Budhun’s FMLA leave retroactive to August 2 and extending 

to September 8. Having invoked the FMLA, Budhun was 

eligible to avail herself of the right to return to her position at 

the end of her leave.

4.

The District Court’s grant of summary judgment to 

Reading on Budhun’s FMLA interference claim was in error. 

Genuine issues of material fact exist regarding whether 

Budhun was exercising her right to return to work on August 

16, 2010, and whether she could not perform an essential 

function of her job. 

B.

Budhun next contends that the District Court’s grant of 

summary judgment to Reading on her FMLA retaliation 

claim was in error. She argues that Reading retaliated against 

her for taking FMLA leave when it impermissibly replaced 

her after her FMLA-protected leave expired. FMLA 

retaliation claims are rooted in the FMLA regulations. 

Erdman, 582 F.3d at 508. They prohibit an employer from 

“discriminating or retaliating against an employee or 

prospective employee for having exercised or attempted to 

exercise FMLA rights.” 29 C.F.R. § 825.220(c). FMLA 

retaliation claims based on circumstantial evidence are 

governed by the burden-shifting framework established by 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 

302 (3d Cir. 2012). 

 

approved. Although a title alone is “not controlling,” it can 

be instructive “when it sheds light on some ambiguous word 

or phrase.” I.N.S. v. St. Cyr, 533 U.S. 289, 308-09 (2001) 

(alterations and quotation marks omitted). 
17

Budhun’s claim is based on circumstantial evidence. 

Thus, to succeed on her claim, it is her burden to establish 

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, 691 F.3d at 302; see also Ross, -- F.3d -

-, 2014 WL 2724128, at *6. Once she establishes a prima 

facie case, the burden shifts to the defendant to provide 

evidence of a legitimate non-discriminatory reason for the 

adverse action. McDonnell Douglas, 411 U.S. at 802. If the 

employer meets this “minimal burden,” the employee must 

then point to some evidence that the defendant’s reasons for 

the adverse action are pretextual. Lichtenstein, 691 F.3d at 

302.

The District Court granted summary judgment on 

Budhun’s retaliation claim because it held that Budhun could 

not establish the second and third elements of her prima facie 

case. It stated that because she was unable to return to work 

at the conclusion of her FMLA leave, “her separation from 

employment was not an adverse employment action.” App. 

17. It also held that she could not establish any temporal 

nexus between her termination and her FMLA leave because 

“Budhun was terminated on November 10, 2010, almost two 

months after she took FMLA.” App. 18. Because it held that 

Budhun could not establish a prima facie case as a matter of 

law, it did not reach Reading’s alleged legitimate, nondiscriminatory reason for replacing Budhun or Budhun’s 

pretext arguments.

1.

The parties contest only the second and third elements 

of Budhun’s prima facie case (it is undisputed that Budhun 

invoked her right to FMLA-qualifying leave). An “adverse 

employment action” is an action that “alters the employee’s

compensation, terms, conditions, or privileges of 

employment, deprives him or her of employment 

opportunities, or adversely affects his or her status as an 
18

employee.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 

1300 (3d Cir. 1997) (quotation marks omitted).

6

Reading argues that Budhun suffered no adverse 

employment action because she resigned voluntarily on 

November 10, 2010 when she failed to return to work. It 

contends that Reading continued to provide benefits to 

Budhun through November 9, 2010, the date her non-FMLA 

leave expired, in accordance with its internal policy. In her 

deposition, Budhun admitted that she was never told that she 

was “terminated” at the time she was told that she was 

replaced by Rushow. App. 112. Budhun never submitted a 

“fitness-for-duty” certification prior to her leave expiring on 

November 9, and admits that rather than applying for 

continued leave, she just “gave up.” App. 110.

But viewing the facts in the light most favorable to 

Budhun, a reasonable jury could conclude that Budhun 

suffered an adverse employment action when Reading 

installed Rushow permanently in her position. Budhun was 

no longer free to return to her previous job. Alvarez 

expressly told her to turn in her badge and keys, and to pick 

up her personal belongings, which a Reading employee had 

packed into a box. She was not offered another position at 

the hospital (indeed, she was ineligible to transfer to another 

position). This certainly altered her “privileges of 

employment,” as she could no longer even enter her place of 

work. She was expressly told that if her doctor cleared her to 

return to work that she would be formally terminated. There 

 

6

This Court has not decided whether to apply the less 

restrictive standard for “adverse employment action” 

promulgated in the Title VII context by Burlington Northern

& Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Under 

this more relaxed standard, “a plaintiff must show that a 

reasonable employee would have found the challenged action 

materially adverse,” such that the action well might have 

dissuaded a reasonable worker from taking a protected action. 

Id. at 68. We need not resolve this question today because, as 

the subsequent discussion illustrates, termination, or being 

permanently replaced, meets the more restrictive definition.
19

was no position for her to return to at the hospital. Such a 

complete elimination of responsibility “significantly altered 

[her] duties and status.” Caver v. City of Trenton, 420 F.3d 

243, 256 (3d Cir. 2005). 

That Budhun may not have been formally “terminated” 

and continued to receive benefits from Reading does not 

mean that the actions that Reading took short of termination 

were not “adverse employment actions.” We have never 

required formal termination to be a necessary element of such 

an action. Even under the Robinson formulation of adverse 

employment action, much less has often sufficed. See, e.g.,

Caver, 420 F.3d at 256 (holding that transfer to light duty 

with less prestige is considered an adverse employment 

action); Weston v. Pennsylvania, 251 F.3d 420, 430-31 (3d 

Cir. 2001) (holding that adverse employment actions can

include suspension without pay, change of work schedule, or 

reassignment). Budhun has adduced enough evidence such 

that a reasonable jury could conclude that she suffered an 

adverse employment action when she was replaced.

2.

Reading also argues that Budhun has not established a 

causal link between her FMLA leave and any adverse 

employment action. Whether a causal link exists “must be 

considered with a careful eye to the specific facts and 

circumstances encountered.” Farrell v. Planters Lifesavers 

Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000). We have been 

reluctant to infer a causal connection based on temporal 

proximity alone. See Weston, 251 F.3d at 431. To 

demonstrate a causal connection, a plaintiff generally must 

show “either (1) an unusually suggestive temporal proximity 

between the protected activity and the allegedly retaliatory 

action, or (2) a pattern of antagonism coupled with timing to 

establish a causal link.” Lauren W. ex rel. Jean W. v. 

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Employers 

“cannot use the taking of FMLA leave as a negative factor in 

employment actions.” 29 C.F.R. § 825.220(c).

Reading’s argument with respect to this third prong of 

Budhun’s prima facie case heavily tracks its argument with 

respect to prong two. It contends that because its separation 
20

with Budhun did not occur until November, there was nothing 

unusually suggestive about its timing. But viewing the facts 

in the light most favorable to Budhun forecloses this 

argument, because Reading’s decision to replace her in 

September was an adverse employment action. The record 

demonstrates that Reading decided to replace Budhun before 

her FMLA leave ended, as early as September 15, 2010. 

Rushow was then offered and accepted the position on 

September 25, two days after Budhun’s FMLA leave ended. 

Alvarez and Spinka attempted to contact Budhun regarding 

her replacement starting on September 27, and finally reached 

her on September 29. We have held that such close temporal 

proximity qualifies as unusually suggestive timing. See, e.g.,

Lichtenstein, 691 F.3d at 307 (determining that termination 

less than a week after the plaintiff invoked her right to FMLA 

leave established causation); see also Wierman v. Casey’s 

Gen. Stores, 638 F.3d 984, 1000 (8th Cir. 2011) (holding that 

termination several days after the plaintiff took FMLAcovered leave was sufficient to establish causation); Bryson v. 

Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (holding that 

an employee who was notified of her termination three 

months after requesting FMLA leave and the day she was 

scheduled to return to work was sufficient to establish a 

causal connection).

3.

The District Court thus erred in concluding that 

Budhun could not establish a prima facie case of FMLA 

retaliation as a matter of law. Because the District Court did 

not reach the subsequent steps in the McDonnell Douglas

analysis, we will not either. The District Court can address 

Reading’s proffered legitimate, non-discriminatory reason 

and Budhun’s evidence of pretext upon remand.

IV.

Budhun also appeals the District Court’s denial of her 

motion for leave to amend her complaint. Budhun moved to 

add a claim under the ADA on May 17, 2011. Her proposed 

amended complaint alleged that Reading regarded her as 

being disabled. The District Court denied Budhun’s motion 

as futile.
21

We review the denial of leave to amend for abuse of 

discretion. Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.

2004). In the context relevant here, a party may amend its 

pleadings “only with the opposing party’s written consent or 

the court’s leave.” Fed. R. Civ. P. 15(a)(2). Although a court 

should grant such leave freely “when justice so requires,” id., 

a court may deny leave to amend when such amendment 

would be futile. Arthur v. Maersk, Inc., 434 F.3d 196, 204 

(3d Cir. 2006). Amendment would be futile if the amended 

complaint would not survive a motion to dismiss for failure to 

state a claim. Travelers Indem. Co. v. Dammann & Co., 594 

F.3d 238, 243 (3d Cir. 2010). A complaint fails to state a 

claim upon which relief can be granted where the plaintiff is 

unable to plead “enough facts to state a claim to relief that is 

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007).

We have little trouble concluding that the District 

Court did not abuse its discretion in denying leave to amend. 

The ADA’s definition of “disability” includes “being 

regarded as having such an impairment.” 42 U.S.C. § 

12102(1)(C).7 An individual meets this “regarded as” 

requirement if he or she establishes that he or she has been 

subject to an action the ADA prohibits “because of an actual 

or perceived physical or mental impairment whether or not 

the impairment limits or is perceived to limit a major life 

activity.” Id. § 12102(3)(A). 

The statute curtails an individual’s ability to state a 

“regarded as” claim if the impairment is “transitory and 

minor,” which means it has an “actual or expected duration of 

six months or less.” Id. § 12102(3)(B). Whether an 

impairment is “transitory and minor” is to be determined 

objectively. 29 C.F.R. § 1630.15(f). That is to say, the 

relevant inquiry is whether the impairment that the employer 

perceived is an impairment that is objectively transitory and 

 

7 Budhun originally moved to amend her complaint to assert 

both an actual disability claim and a “regarded as” disabled 

claim. On appeal, she contends that the District Court erred

only in failing to permit her to add a “regarded as” claim. See

Budhun Br. 24.
22

minor.8 The ADA regulations list being “transitory and 

minor” as a defense to an ADA claim. Id. While ordinarily a 

party may not raise affirmative defenses at the motion to 

dismiss stage, it may do so if the defense is apparent on the 

face of the complaint. Ball v. Famiglio, 726 F.3d 448, 459 

n.16 (3d Cir. 2013).

It is abundantly clear that Reading considered Budhun 

to have a broken bone in her hand and nothing more. The 

proposed amended complaint indicates that Alvarez knew that 

she had a broken finger. App. 37. Nowhere in the complaint 

does Budhun allege that Reading thought her injury was 

anything other than a broken fifth metacarpal. This injury is 

objectively transitory and minor. Budhun’s proposed 

amended complaint concedes as much because it describes 

the loss of the use of her pinky finger as “temporary.” Id. 

She specifically alleges that her injury resulted in the “lost 

use of three fingers for approximately two months.” App. 40. 

As it was evident from the face of her proposed amended 

complaint that Reading regarded her injury as one that is 

objectively transitory and minor, the District Court was well 

within its discretion to deny her motion for leave to amend as 

futile.

V.

For the foregoing reasons, we will vacate the judgment 

of the District Court as to Budhun’s FMLA interference and 

FMLA retaliation claims. We will affirm the District Court’s 

order denying Budhun leave to amend her complaint to add 

an ADA claim. We will remand the action for further 

proceedings consistent with this opinion.

 

8

The appendix to the implementing regulations provides a 

good illustration of how this defense is intended to operate: 

“For example, an employer who terminates an employee 

whom it believes has bipolar disorder cannot take advantage 

of this exception by asserting that it believed the employee’s 

impairment was transitory and minor, since bipolar disorder is 

not objectively transitory and minor.” 29 C.F.R. § 1630, 

App.