2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2012

Jamie Lichtenstein v. University of Pittsburgh

Medic

Precedential or Non-Precedential: Precedential

Docket No. 11-3419

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PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 11-3419

______

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

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 09-cv-1350)

District Judge: Honorable William L. Standish

______

Argued on June 19, 2012

Before: AMBRO, VANASKIE and VAN ANTWERPEN, 

Circuit Judges
2

(Filed: August 3, 2012 )

Charles H. Saul, Esq. [ARGUED]

Kyle T. McGee, Esq.

Margolis Edelstein

525 William Penn Place, Suite 3300

Pittsburgh, PA 15219

Counsel for Appellant

 

John J. Myers, Esq. [ARGUED]

Andrew T. Quesnelle, Esq.

Eckert, Seamans, Cherin & Mellott LLC

44th Floor, U.S. Steel Tower

600 Grant Street

Pittsburgh, PA 15219

Counsel for Appellees

______

OPINION OF THE COURT

______

VAN ANTWERPEN, Circuit Judge.

I.

Appellant Jamie Lichtenstein alleges that her 

employer, University of Pittsburgh Medical Center (UPMC),

1

terminated her employment in violation of the Family 

 

1 Our reference to UPMC throughout this opinion, unless 

otherwise indicated, is a collective reference to all four 

defendants in this case, including UPMC Presbyterian 

Shadyside, UPMC Braddock, and Deborah Lidey.
3

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.

II. FACTS & PROCEDURAL HISTORY

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. 
4

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 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 work2and/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 

 

2

In addition to her full-time position at Braddock, 

Lichtenstein was also a part-time student. During her job 

interview, Lidey told Lichtenstein that UPMC would attempt 

to accommodate her school schedule.
5

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,3and 

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 

 

3

The staff log was maintained by Amy Harris, UPMC‘s 

administrative assistant for scheduling. The ―time log,‖ on 

the other hand, was maintained through UPMC‘s 

computerized system. As discussed below, the staff log is the 

document Lidey reviewed prior to terminating Lichtenstein, 

and is the document UPMC submitted to the EEOC as 

―Exhibit M‖ to document Lichtenstein‘s attendance problems. 

4 When asked when she first learned of the December 30th 

incident, Lidey stated ―I can‘t remember that.‖ App. at 344.
6

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 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
7

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 

 

5

It is undisputed that by calling the nursing supervisor when 

she did on January 3rd, Lichtenstein followed UPMC‘s 

proper procedure for calling off sick. See App. at 308, 395–
8

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 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 

 

96, 451–52. Nevertheless, the adequacy of the notice she 

gave is an issue in this case.
9

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 testified that 

Lidey planned to terminate Lichtenstein on January 8th, the 

day after Lidey returned from vacation. This plan was foiled, 

however, when Lichtenstein contacted UPMC early that 

morning to request leave to care for her mother. At 12:18 

pm, Lichtenstein sent Lidey the following email:

I am not sure if you are aware, but my mother has been 

in the hospital since Thursday [January 3rd]. I am not 

sure how much longer they will keep her hospitalized. 

And once she is released, she might require some 

assistance. Under these circumstances and at this point 

in time, I would like to, as well as need to, take a leave 

of absence. Who do I speak with to aid me in this 

process? 

Id. at 586. 

Lidey, who receives hundreds of emails a day, claims 

she did not read this particular email. In fact, Lidey insists

 

6 Lidey also requested and received from Harris a copy of 

Lichtenstein‘s staff log on January 9th as well.
10

that she terminated Lichtenstein ―before I knew anything 

about her mom being ill or needing to ask for leave.‖ Id. at 

335. This claim, however, is at odds with other evidence in 

the record, including the fact that Lidey responded to 

Lichtenstein‘s email.7 Although Lidey claims she did not 

read Lichtenstein‘s email prior to replying to it, Brown 

testified that Lidey told her Lichtenstein‘s mother was sick. 

Id. at 424. According to Brown, ―What I recall her saying 

was that Jamie was stating that she needed to be off to care 

for her mother.‖ Id. Brown testified that Lidey conveyed this 

information prior to Lichtenstein‘s termination.

After her termination, Lichtenstein filed a complaint 

with the EEOC alleging religious discrimination. In 

response, UPMC sent a position statement to the EEOC in 

which it described its reasons for firing Lichtenstein. 

According to this position statement: 

Once Ms. Lichtenstein began working at UPMC 

Braddock, she had numerous incidents of tardiness and 

absenteeism. She was also a  ̳nightmare‘ to schedule 

according to Amy Harris, the Administrative Assistant 

in charge of scheduling. Although the hospital was 

willing to accommodate her school schedule, Ms. 

Lichtenstein was also constantly requesting days off to 

study or complete schoolwork. By January 4, 2008, 

Ms. Lichtenstein had been absent three times 

 

7

Lidey‘s reply email was not simply an automated out-ofoffice reply. In the email, Lidey stated: ―I am out of the 

office today, please call Amy to schedule a time that you can 

come in and meet with me tomorrow [January 10th].‖ Id. at 

602. 
11

(including once for a sixteen hour shift) and tardy six 

times. . . . Documentation regarding Ms. 

Lichtenstein‘s lateness, absences and scheduling issues 

is enclosed as Exhibit M.

Id. at 592. As documented in Exhibit M, one of the ―three 

absences‖ referenced in the position statement was 

Lichtenstein‘s absence on January 3rd. Lidey‘s late 

appearance and early departure on December 30th was not 

mentioned, either in Exhibit M or the position statement.

In addition to filing a claim for religious 

discrimination, Lichtenstein filed a complaint under the 

Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et 

seq. Lichtenstein argued that her absence on January 3rd 

qualified for leave under the FMLA, and that UPMC had 

impermissibly considered this absence in terminating her 

employment. The District Court granted UPMC‘s motion for 

summary judgment and Lichtenstein filed this timely appeal.

III. LEGAL BACKGROUND8

A. STANDARD OF REVIEW

We review the District Court‘s grant of summary 

judgment de novo. Sempier v. Johnson & Higgins, 45 F.3d 

724, 727 (3d Cir. 1995). Summary judgment should only be 

granted if ―there is no genuine dispute as to any material 

fact.‖ Fed. R. Civ. P. 56(a). A dispute is genuine if a 

reasonable trier-of-fact could find in favor of the non-movant. 

 

8

The District Court had jurisdiction pursuant to 28 U.S.C. § 

1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
12

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 

(1986). A dispute is material if it could affect the outcome of 

the case. Id. In considering the record, we must draw all 

reasonable inferences in favor of the non-moving party, 

which in this case, is Lichtenstein. Matsushita Elec. Indus. 

Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

B. FAMILY MEDICAL LEAVE ACT (FMLA)

Congress passed the FMLA in 1993 in an attempt ―to 

balance the demands of the workplace with the needs of 

families.‖ 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA 

―entitle[s] employees to take reasonable leave for medical 

reasons,‖ 29 U.S.C. § 2601(b)(2), but employees must do so 

―in a manner that accommodates the legitimate interests of 

employers,‖ 29 U.S.C. § 2601(b)(3). Eligible employees are 

entitled to ―12 workweeks of leave during any twelve-month 

period . . . [i]n order to care for the . . . parent of the 

employee, if such . . . parent has a serious health condition.‖ 

29 U.S.C. § 2612(a)(1); see also 29 C.F.R. § 825.101(b) 

(―When a family emergency arises, . . . workers need 

reassurance that they will not be asked to choose between 

continuing their employment, and meeting their . . . family 

obligations.‖). 

As indicated, eligible employees are entitled to take 

FMLA if they ―care for‖ a family member with a ―serious 

health condition.‖ A ―serious health condition‖ is defined as 

―an illness, injury, impairment, or physical or mental 

condition that involves (A) inpatient care in a hospital, . . . or 

(B) continuing treatment by a health care provider.‖ 29 

U.S.C. § 2611(11); see also 29 C.F.R. § 825.114 (defining 

inpatient care as ―an overnight stay in a hospital‖). To ―care 
13

for‖ a family member, the employee must provide either 

physical or ―psychological care,‖ including ―psychological 

comfort and reassurance which would be beneficial to a . . .

parent with a serious health condition who is receiving 

inpatient or home care.‖ 29 C.F.R. § 825.124(a).

 

Even when these qualifying circumstances exist, 

employees cannot invoke rights under the FMLA if they fail 

to provide adequate notice of their need for leave. 29 U.S.C. 

§ 2612(e). When the need for leave is unforeseeable,9

employees are obligated to notify their employer ―as soon as 

practicable,‖ 29 C.F.R. § 825.303(a), and ―provide sufficient 

information for an employer to reasonably determine whether 

the FMLA may apply,‖ 29 C.F.R. § 825.303(b).

When employees invoke rights granted under the 

FMLA, employers may not ―interfere with, restrain, or deny 

the exercise of or attempt to exercise‖ these rights. 29 U.S.C. 

§ 2615(a)(1). Nor may employers ―discharge or in any other 

manner discriminate against any individual for opposing any 

practice made unlawful.‖ 29 U.S.C. § 2615(a)(2). The 

former provision is generally, if imperfectly, referred to as 

―interference‖ whereas the latter is often referred to as 

―retaliation.‖ Callison v. City of Philadelphia, 430 F.3d 117, 

119 (3d Cir. 2005). Although neither provision expressly 

forbids employers from terminating employees ―for having 

 

9 See generally Cavin v. Honda of America Mfg., Inc. , 346 

F.3d 713, 722 (6th Cir. 2003) (―The regulations suggest that 

notice requirements for unforeseeable leave are more relaxed 

than the requirements for foreseeable leave, in keeping with 

the idea that an unforeseeable need for leave will often arise 

in the context of a medical emergency.‖).
14

exercised or attempted to exercise FMLA rights,‖ a 

Department of Labor regulation has interpreted the sum of the 

two provisions as mandating this result. See 29 CFR § 

825.220(c). Under this regulatory interpretation, employers 

are barred from considering an employee‘s FMLA leave ―as a 

negative factor in employment actions such as hiring, 

promotions or disciplinary actions.‖10 Id. Accordingly, an 

employee does not need to prove that invoking FMLA rights 

 

10 The regulation does not specify which of the two statutory 

provisions is the specific source of this prohibition. See 29 

CFR § 825.220(c). Perhaps not surprisingly, therefore, courts 

interpreting the regulation have reached different conclusions 

on this question. See Conoshenti v. Public Serv. Elec. & Gas 

Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004) (citing cases). As 

with the Ninth Circuit, we have predicated liability for 

retaliation based on an employee‘s exercise of FMLA rights 

on the regulation itself. Id. Our discussion on this point, 

however, has spurred its own share of confusion, with some 

courts citing Conoshenti as specifically locating these claims 

in 29 U.S.C. § 2615(a)(1). See, e.g., Phillips v. Mathews, 547 

F.3d 905, 914 (8th Cir. 2008) (Colloton, J., concurring). 

Adding a further wrinkle, the Department of Labor has 

subsequently amended the first sentence of 29 CFR § 

825.220(c) to include, inter alia, the words ―interference‖ and 

―retaliating.‖ See 73 Fed. Reg. 67934, 68055 (Nov. 17, 

2008); Lovland v. Emp’rs Mut. Cas. Co., 674 F.3d 806, 811 

(8th Cir. 2012). Since the parties have not briefed this matter, 

and because it does not affect the resolution of this appeal, we 

do not resolve here whether the regulation‘s amended 

language has any material impact on our reasoning in

Conoshenti. 
15

was the sole or most important factor upon which the 

employer acted.

 

IV. ANALYSIS

Although the gravamen of Lichtenstein‘s claim sounds 

in retaliation, she alleges both retaliation and interference 

claims. See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 

509 (3d Cir. 2009) (―[F]iring an employee for a valid request 

for FMLA leave may constitute interference with the 

employee‘s FMLA rights as well as retaliation against the 

employee.‖). As will be seen, both claims are closely 

intertwined.

 

A. RETALIATION

To prevail on a retaliation claim under the FMLA, the 

plaintiff must prove that (1) she invoked her right to FMLAqualifying leave, (2) she suffered an adverse employment 

decision, and (3) the adverse action was causally related to 

her invocation of rights. See Erdman, 582 F.3d at 508–09 

(modifying Conoshenti, 364 F.3d at 146). Because FMLA 

retaliation claims require proof of the employer‘s retaliatory 

intent, courts have assessed these claims through the lens of 

employment discrimination law. Accordingly, claims based 

on circumstantial evidence have been assessed under the 

burden-shifting framework established in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973), while claims based on 

direct evidence have been assessed under the mixed-motive 

framework set forth in Price Waterhouse v. Hopkins, 490 
16

U.S. 228, 276–77 (1989) (O‘Connor, J., concurring). See 

Conoshenti, 364 F.3d at 147.11

Although some courts have recently questioned the 

viability of mixed-motive claims under the FMLA in the 

wake of Gross v. FBL Financial Services, Inc., 129 S. Ct. 

2343, 2349 (2009),12 the only federal court of appeals to rule 

on the issue has held that Gross does not preclude FMLA 

mixed-motive claims. See Hunter v. Valley View Local Sch., 

579 F.3d 688, 692 (6th Cir. 2009). The Department of Labor 

has taken a similar position, stating its view in an amicus 

brief that the FMLA continues to allow mixed-motive claims. 

See Brief for the Sec‘y of Labor as Amicus Curiae in Support 

of Plaintiff-Appellant, Breeden v. Novartis Pharm. Corp., 646 

F.3d 43 (D.C. Cir. 2011) (Nos. 10-7073; 10-7078). Although 

Lichtenstein calls on us to apply the mixed-motive framework

 

11 Although this Court has not specifically ruled that 

McDonnell Douglas applies to FMLA-retaliation claims 

based on circumstantial evidence, this is implied by our 

application of Price Waterhouse to claims based on direct 

evidence, Conoshenti, 364 F.3d at 147, and is the prevailing 

rule of the federal courts, see, e.g., Colburn v. Parker 

Hannifin/Nichols Portland Div., 429 F.3d 325, 331–32 (1st 

Cir. 2005); Potenza v. City of New York, 365 F.3d 165, 167–

68 (2d Cir. 2004); King v. Preferred Technical Grp., 166 F.3d 

887, 891 (7th Cir. 1999). 

12 See, e.g., Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 

1004 (10th Cir. 2011) (―In light of the recent decision of the 

United States Supreme Court in Gross . . . there is a 

substantial question whether a mixed motive analysis would 

apply in a retaliation claim under the FMLA.‖).
17

to her retaliation claim, she readily survives summary 

judgment under the more taxing McDonnell Douglass

standard. Accordingly, we proceed under McDonnell 

Douglass and leave for another day our resolution of whether 

the FMLA continues to allow mixed-motive claims in the 

wake of Gross.

Under the McDonnell Douglass framework, 

Lichtenstein has the initial burden of establishing a prima 

facie case. To do so, she must point to evidence in the record 

sufficient to create a genuine factual dispute about each of the 

three elements of her retaliation claim: (a) invocation of an 

FMLA right, (b) termination, and (c) causation. See Erdman, 

582 F.3d at 508–09; Conoshenti, 364 F.3d at 146. If 

Lichtenstein can do so, the burden of production shifts to 

UPMC to ―articulate some legitimate, nondiscriminatory 

reason‖ for its decision. McDonnell Douglass, 411 U.S. at 

802. If UPMC meets this minimal burden, Lichtenstein 

―must point to some evidence, direct or circumstantial, from 

which a factfinder could reasonably . . . disbelieve [UPMC‘s]

articulated legitimate reasons.‖ Fuentes v. Perskie, 32 F.3d 

759, 764 (3d Cir. 1994).

 

In its ruling below, the District Court granted summary 

judgment to UPMC based on its conclusions that Lichtenstein 

(1) failed to establish the invocation (i.e., notice) and 

causation prongs of the prima facie case, and (2) failed to 

identify evidence casting reasonable doubt on UPMC‘s 

proffered justification for her termination. See Lichtenstein v. 

Univ. of Pittsburgh Med. Ctr., 805 F. Supp. 2d 190, 205–11 

(W.D. Pa. 2011). We will address each of these issues in 

turn, beginning with notice.
18

1. Notice13

To invoke rights under the FMLA, employees must 

provide adequate notice to their employer about their need to 

take leave. 29 U.S.C. § 2612(e)(2). In doing so, the 

employee ―need not expressly assert rights under the FMLA 

or even mention the FMLA.‖ 29 C.F.R. § 825.303(b). When 

the leave is unforeseeable, the employee‘s obligation is to 

―provide sufficient information for an employer to reasonably 

determine whether the FMLA may apply to the leave 

request.‖ Id. (emphasis added). As we have previously 

noted, this is not a formalistic or stringent standard. See 

Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402

(3d Cir. 2007) (stating that the statutory and regulatory text 

suggests a ―liberal construction‖ be given to FMLA‘s notice 

requirement); see also Rask v. Fresenius Med. Care N. Am., 

509 F.3d 466, 477 (8th Cir. 2007) (―The regulations already 

make it very easy for [an employee] to give notice of her 

intent to take leave.‖); Burnett v. LFW Inc., 472 F.3d 471, 478

 

13 Our reference to UPMC in this section is limited to the three 

corporate defendants, as Lidey was not a party to 

Lichtenstein‘s phone conversation with the nursing supervisor 

on January 3rd and there is no evidence that she was aware of 

the exact information Lichtenstein conveyed. She later 

learned, however, from both the staff log and Lichtenstein‘s 

email to her, that Lichtenstein‘s mother had been hospitalized 

on January 3rd and that Lichtenstein had called off on the 

same day to be with her ―sick mom.‖ As set forth in our 

discussion of causation below, there is a genuine factual 

dispute as to whether Lidey had sufficient notice of 

Lichtenstein‘s FMLA leave prior to the time of the 

termination. 
19

(7th Cir. 2006) (―The notice requirements of the FMLA are 

not onerous.‖).

 

While the FMLA ―does not require an employer to be 

clairvoyant,‖ Brenneman v. MedCentral Health Sys., 366 

F.3d 412, 428 (6th Cir. 2004), this does not mean that 

employees need to provide every detail necessary for the 

employer to verify if the FMLA applies. See, e.g., Ruble v. 

Am. River Transp., 799 F. Supp. 2d 1017, 1025 (E.D. Mo. 

2011) (―Plaintiff was not required to provide all the details 

necessary to show he was entitled to FMLA leave.‖). This 

conclusion is dictated by the language of 29 C.F.R. § 

825.303(a), which provides that ―where the employer does 

not have sufficient information about the reason for an 

employee‘s use of leave, the employer should inquire further

of the employee . . . to ascertain whether leave is potentially 

FMLA-qualifying‖ (emphasis added). The regulations thus 

clearly envision situations where an employee can satisfy her 

notice obligation without providing enough detailed 

information for the employer to know if FMLA actually 

applies. Accordingly, the ―critical test‖ is not whether the 

employee gave every necessary detail to determine if the 

FMLA applies, but ―how the information conveyed to the 

employer is reasonably interpreted.‖ Sarnowski, 510 F.3d at 

402. How the employee‘s notice is reasonably interpreted is 

generally a question of fact, not law.14 Murphy v. FedEx 

 

14 There are cases, of course, where the undisputed facts are 

such that ―no rational trier of fact could conclude‖ that the 

employee‘s notice was adequate. See, e.g., Satterfield v. WalMart Stores, Inc., 135 F.3d 973, 980–81 (5th Cir. 1998). In 

such cases, the adequacy of notice can be determined as a

matter of law. 
20

Nat’l. LTL, Inc., 618 F.3d 893, 903 (8th Cir. 2010); Burnett, 

472 F.3d at 479; Hopson v. Quitman Cnty. Hosp. & Nursing 

Home, Inc., 126 F.3d 635, 640 (5th Cir. 1997); Cavaliere v. 

Advertising Specialty Institute Inc., --- F.Supp.2d ---, 2012 

WL 525891, at *12 (E.D. Pa. Feb. 16, 2012); Zawadowicz v. 

CVS. Corp., 99 F. Supp. 2d 518, 529 (D.N.J. 2000); THIRD 

CIRCUIT MODEL JURY INSTRUCTIONS–CIVIL § 10.1.1 (2011). 

But see Cavin, 346 F.3d at 723 (stating Sixth Circuit‘s view 

that adequacy of notice is a question of law). Under the 

circumstances of this case, we believe that the adequacy of 

Lichtenstein‘s notice is a question of fact.

We begin by noting several facts that are not in 

dispute. First, Lichtenstein‘s mother suffered a sudden, 

severe, and unexpected health condition on January 3, 2008 

that required staying at the hospital for over a week. As such, 

Lichtenstein‘s mother suffered a ―serious health condition‖ 

that entitled Lichtenstein to take FMLA leave on January 3rd. 

See 29 U.S.C. § 2611(11) (defining ―serious health condition‖ 

as a physical condition that requires ―inpatient care‖); 29 

C.F.R. § 825.114 (defining ―inpatient care‖ as ―an overnight 

stay in a hospital‖). Second, Lichtenstein correctly followed 

UPMC‘s call-off procedure by calling UPMC‘s nursing 

supervisor soon after arriving at the emergency room. This is 

sufficient to establish a genuine dispute about whether 

Lichtenstein notified UPMC ―as soon as [was] practicable 

under the facts and circumstances.‖15 29 C.F.R. § 825.303(a). 

 

15 Although UPMC argues in its brief that Lichtenstein failed 

to give ―advance notice‖ of her leave, br. at 34, this is belied 

by the unforeseeable nature of the emergency and UPMC‘s 

previous admissions that Lichtenstein followed proper 

procedure by calling the nursing supervisor when she did.
21

Finally, during Lichtenstein‘s telephone call with the nursing 

supervisor, Lichtenstein conveyed the following facts: (1) she 

was ―currently in the emergency room,‖ (2) her ―mother had 

been brought into the hospital via ambulance,‖ and (3) she 

―would be unable to work that day‖ (emphases added).

(a) “Serious Health Condition”

The District Court concluded that Lichtenstein 

conveyed insufficient information to the nursing supervisor to 

place UPMC on notice. According to the District Court, the 

information was inadequate because ―the fact that a family 

member has been taken to the emergency room does not 

necessarily reflect a serious medical condition sufficient to 

support a request for leave under the FMLA.‖ Lichtenstein, 

805 F. Supp. 2d at 203 (emphasis added). ―While the 

condition precipitating an emergency room visit may be

serious,‖ the District Court reasoned that ―the condition might 

not require ongoing hospitalization or medical treatment.‖ Id.

(emphases added). In so reasoning, the District Court 

answered the wrong question. The question is not whether 

the information conveyed to the employer necessarily rules 

out non-FMLA scenarios. The question is whether the 

information allows an employer to ―reasonably determine 

whether the FMLA may apply.‖ 29 C.F.R. § 825.303(b) 

(emphases added). Reasonableness does not require 

certainty, and ―may‖ does not mean ―must.‖ It does not 

matter that a person rushed by ambulance to the emergency 

room ―might not‖ require inpatient care as defined under the 

FMLA. Since many people in this situation do require such 
22

care, a jury might find that reasonable notice was given under 

the circumstances.16

 

Finally, in considering the adequacy of Lichtenstein‘s 

notice, we find it instructive to compare the information she 

conveyed with the guidance provided in 29 C.F.R. § 

825.303(b).17 According to this regulation, an employee 

 

16 Despite the dissent‘s characterization to the contrary, our 

reasoning here does not dictate that a question of fact 

necessarily exists whenever an employee ―calls out from 

work saying she needs to go to the hospital.‖ Lichtenstein did 

not merely give a generic reference about going to a hospital; 

she specifically told UPMC that her mother had been taken to 

the emergency room in an ambulance. As common sense 

would suggest, people rushed to the emergency room in an 

ambulance are generally in a more serious health situation 

than people who go on their own accord. In fact, data from 

the United States indicate that about forty percent of people 

taken to the emergency room in an ambulance are admitted 

for inpatient care, versus just ten percent of those who ―walk 

in.‖ See Gregory Luke Larkin, et al., National Study of 

Ambulance Transports to United States Emergency 

Departments: Importance of Mental Health Problems, 21 

PREHOSPITAL & DISASTER MED. 82, 85 tbl.1 (2006). We are 

not presented, therefore, with the kind of vague, generic 

reference to a ―hospital‖ in which the likelihood of a serious 

health condition is merely conceivable but not sufficiently 

likely to warrant shifting the burden of inquiry onto the 

employer.

17 The Department of Labor has described this regulation as 

―provid[ing] additional guidance for employees regarding 
23

whose family member has a serious health condition may 

provide adequate notice by stating that the ―family member is 

under the continuing care of a health care provider,‖ or, that 

the family member has a condition that renders her ―unable to 

perform daily activities.‖ Id. A trier-of-fact could reasonably 

conclude that the information conveyed by Lichtenstein did 

both. Lichtenstein stated that her mother was still at the 

hospital, which implies ―continuing care,‖18 and it could be 

reasonably inferred that a person brought by ambulance to an 

emergency room and remaining at the hospital is ―unable to 

perform daily activities.‖ 

Of course, a trier-of-fact could also consider 

Lichtenstein‘s failure to provide any further information to 

UPMC about her mother‘s condition when she returned to 

work the very next day. Lichtenstein was not necessarily 

obligated, however, to provide additional information. The 

regulations state that if an employee‘s initial notice 

reasonably apprises the employer that FMLA may apply, it is 

the employer‘s burden to request additional information if 

 

what is  ̳sufficient information‘‖ to constitute notice. U.S. 

Dep‘t of Labor, Frequently Asked Questions and Answers 

About the Revisions to the Family and Medical Leave Act, 

http://www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.ht

m (last visited July 9, 2012).

18 Since the regulation refers to ―continuing care‖ rather than 

―continuing treatment,‖ the DOL‘s definition of ―continuing 

treatment‖ is not necessarily applicable. See 29 C.F.R. § 

825.115(a) (stating that ―continual treatment‖ requires ―[a] 

period of incapacity of more than three consecutive, full 

calendar days‖).
24

necessary. 29 C.F.R. § 825.303(a). Thus, since we believe 

there is a genuine dispute about whether Lichtenstein‘s phone 

call to the nursing supervisor met this standard, her failure to 

provide further information on the following day at work does 

not defeat her claim at this stage. 

(b) “To Care For”

UPMC contends that Lichtenstein‘s notice was 

deficient because it failed to provide sufficient information 

from which UPMC could infer she would ―care for‖ her 

mother. UPMC‘s arguments on this issue wholly miss the 

point. As previously stated, FMLA regulations define the 

term ―to care for‖ as ―encompass[ing] both physical and 

psychological care,‖ including the provision of 

―psychological comfort and reassurance which would be 

beneficial to a . . . parent with a serious health condition who 

is receiving inpatient or home care.‖ 29 C.F.R. § 825.124(a). 

We assess the adequacy of Lichtenstein‘s notice, therefore, by 

considering whether UPMC could have reasonably inferred 

she would provide ―psychological comfort and reassurance‖ 

to her mother. 

UPMC claims that Lichtenstein ―provided no 

indication that she was needed to care for her mother—only 

that her mother had been transported to the hospital.‖ Br. at 

36. It is undisputed, however, that Lichtenstein told UPMC 

she was ―currently in the emergency room‖ with her mother 

and ―unable to work that day.‖ A reasonable fact-finder 

could infer from these statements that Lichtenstein was 

asking for leave to care for her mother. UPMC implicitly 

conceded this point at oral argument when it stated that 

staying and caring for one‘s mother under such circumstances 
25

―would be a natural thing to do.‖ If it was ―a natural thing to 

do,‖ it was certainly reasonable for UPMC to infer. It matters 

not that UPMC received no ―doctor‘s opinion or report that 

the mother for some emotional reasons required the presence 

of the plaintiff at the hospital.‖ An employer does not need a 

doctor‘s report to realize that a person rushed to the hospital 

in an ambulance will likely receive ―psychological comfort 

and reassurance‖ by the presence of their loved ones. See 

Fioto v. Manhattan Woods Golf Enterprises, LLC, 270 

F.Supp.2d 401, 405 (S.D.N.Y. 2003) (―By the very terms of 

the FMLA regulations, a child‘s offering comfort and 

reassurance to a bedridden parent qualifies as  ̳caring for‘ the 

parent.‖). 

Similarly it does not matter that UPMC did not know 

if Lichtenstein was an ―only child,‖ or if there were ―other 

family members‖ at the hospital.19 The FMLA regulations 

expressly state that ―[t]he employee need not be the only 

individual or family member available to care for the family 

member.‖ 29 CFR § 825.124(b); see also Romans v. Mich. 

Dep’t of Human Servs., 668 F.3d 826, 840–41 (6th Cir. 2012) 

(stating that ―plain language of the regulations‖ entitles an 

employee to FMLA leave even when other relatives are 

available to care for the sick family member).

 

19 At oral argument, UPMC argued that it could not have been 

expected to know that Lichtenstein would take care of her 

mother because ―there‘s no evidence in this record that the 

plaintiff is an only child, that there‘s no other family members 

there, who else was at the hospital to give nurture, or any of 

that type of information.‖
26

Finally, there is no merit to UPMC‘s argument that 

Lichtenstein‘s January 8th letter made it reasonable for 

UPMC to infer that Lichtenstein did not provide care for her 

mother on January 3rd. The logic of UPMC‘s argument is as 

follows: (A) since Lichtenstein‘s January 8th letter stated that 

she needed to care for her mother after her mother left the 

hospital, ergo (B) ―she wasn‘t needed to care for her mother 

while her mother was in the hospital.‖ There is nothing 

inherently contradictory, however, about asking to care for 

one‘s seriously ill parent both during and after their hospital 

stay. Indeed, the FMLA regulations expressly define ―to care 

for‖ as including both care provided at home and the hospital. 

See 29 C.F.R. § 825.124(a) (stating that care includes 

―providing psychological comfort and reassurance which 

would be beneficial to a . . . parent with a serious health 

condition who is receiving inpatient or home care‖ (emphases 

added)). UPMC‘s logic thus relies on a cramped notion of 

what it means ―to care for‖ under the FMLA. 

For the reasons stated, a genuine factual dispute exists 

about whether Lichtenstein provided adequate notice to 

timely and reasonably apprise UPMC that the FMLA may 

apply to her request for leave. A trier-of-fact considering this 

question would be entitled to consider the ―totality of the 

circumstances,‖ Rynders v. Williams, 650 F.3d 1188, 1196 

(8th Cir. 2011), including—but not limited to—evidence 

shedding light on Lichtenstein‘s credibility and Lichtenstein‘s 

pattern of conduct during and following January 3rd, 

including her failure to mention her mother‘s condition when 

she returned to work on January 4th as well as her email to 

Lidey on January 8th. 
27

2. Causation

Having determined that a genuine factual dispute 

exists with respect to the notice prong of Lichtenstein‘s prima 

facie case, we now consider the question of causation. To 

demonstrate a prima facie case of causation, Lichtenstein 

must point to evidence sufficient to create an inference that a 

causative link exists between her FMLA leave and her 

termination. See Farrell v. Planters Lifesavers Co., 206 F.3d 

271, 279–81 (3d Cir. 2000). When the ―temporal proximity‖ 

between the protected activity and adverse action is ―unduly 

suggestive,‖ this ―is sufficient standing alone to create an 

inference of causality and defeat summary judgment.‖ 

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 

232 (3d Cir. 2007). ―Where the temporal proximity is not 

 ̳unusually suggestive,‘ we ask whether  ̳the proffered 

evidence, looked at as a whole, may suffice to raise the 

inference.‘‖ Id. (quoting Farrell, 206 F.3d at 280).

Here, Lichtenstein was terminated on January 10th, 

just seven days after she invoked her right to FMLA leave, 

and just three days after Lidey returned from vacation. Had 

things gone according to UPMC‘s plan, even less time would 

have elapsed. Both Lidey and Brown testified that Lidey‘s 

plan was to fire Lichtenstein on January 8th (the first day 

Lidey and Lichtenstein were scheduled to work the same shift 

following Lidey‘s return from vacation). ―Although there is 

no bright line rule as to what constitutes unduly suggestive 

temporal proximity,‖ id. at 233, the temporal proximity in this 

case is in the realm of what this Court and others have found 

sufficient at the prima facie stage, see, e.g., Jalil v. Avdel 

Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding two days 

unduly suggestive); Seeger v. Cincinnati Bell Tel. Co., 681 
28

F.3d 274, 283 (6th Cir. 2012) (three weeks); Wierman v. 

Casey’s Gen. Stores, 638 F.3d 984, 994 (8th Cir. 2011) (four 

days); cf. McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 

2008) (five days in Title VII retaliation case).

Even if the temporal proximity in this case is not 

unduly suggestive, there is other evidence from which an 

inference of causation can be drawn. UPMC‘s position 

statement to the EEOC, for example, specifically listed 

Lichtenstein‘s January 3rd leave as one of her three absences. 

Since UPMC‘s position statement stated that Lichtenstein‘s 

attendance problems were one of the reasons it terminated 

Lichtenstein, a trier-of-fact could infer that UPMC considered 

Lichtenstein‘s January 3rd absence as a negative factor in its 

termination decision. This inference is supported by other 

evidence in the record. Specifically, when Lidey returned to 

work on January 7th, she responded to Krautz‘s email (the 

one in which Krautz reported Lichtenstein‘s call-off on 

January 3rd) by requesting Lichtenstein‘s call-off records 

from Harris. From this, a trier-of-fact could infer that Lidey‘s 

decision to request Lichtenstein‘s call-off records, and ergo 

Lidey‘s decision that day to terminate Lichtenstein, was 

triggered by Lidey learning of the January 3rd absence.

 

We recognize that since Krautz‘s email made no 

mention of Lichtenstein‘s reason for calling off, it does not 

necessarily follow that Lidey knew Lichtenstein‘s absence 

was likely protected under the FMLA. Cf. Moore v. City of 

Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006) (―To the 

extent that [Title VII plaintiff] relies upon the brevity of the 

time periods between the protected activity and alleged 

retaliatory actions to prove causation, he will have to show as 

well that the decision maker had knowledge of the protected 
29

activity.‖ (internal citations omitted)). There is other 

evidence in the record, however, from which this inference 

could reasonably be drawn. See Cavaliere, 2012 WL 525891, 

at *12 (finding plaintiff‘s circumstantial evidence sufficient to 

infer decision maker‘s awareness of her FMLA leave). Most 

tellingly, Lidey received a personal email from Lichtenstein 

the following day which explicitly stated that Lichtenstein‘s 

mother had been hospitalized on January 3rd and had 

remained hospitalized ever since. Moreover, Lichtenstein‘s 

staff log—which Lidey requested and received from Harris 

on both January 7th and 9th—included a notation that 

Lichtenstein missed work on the 3rd because of her ―sick 

mom.‖ Taken together, these two facts provide a sufficient 

basis from which to infer that by the time Lidey terminated 

Lichtenstein, she was on notice that Lichtenstein‘s January 

3rd absence may be protected under the FMLA.

 

Although Lidey now claims she never read 

Lichtenstein‘s email nor saw the ―sick mom‖ notation on the 

staff log, a reasonable trier-of-fact could find these claims 

unworthy of credence. First, Lidey did not merely receive 

Lichtenstein‘s email; she replied to it. Second, Lidey did not 

merely receive the staff log, she specifically requested it—not 

once, but twice. Third, Lidey‘s insistence that she did not 

know of Lichtenstein‘s mother‘s illness20 is directly 

 

20 In her deposition, Lidey stated: ―I terminated Jamie by 

telephone [on January 10, 2008] before I knew anything 

about her mom being ill or needing to ask for leave.‖ App. at 

335. When confronted with the email she received from 

Lichtenstein that contained this information, Lidey testified, 

―I did not see that.‖ Id. When confronted with the fact that 

she twice requested and received Lichtenstein‘s staff log 
30

contradicted by Brown‘s deposition. According to Brown: 

―What I recall [Lidey] saying was that Jamie was stating that 

she needed to be off to care for her mother.‖ App. at 424. 

Thus, even if there is insufficient evidence to show Lidey‘s 

knowledge of Lichtenstein‘s protected activity when she 

returned to work on January 7th, any benefit of this ignorance 

was lost when Lidey received Lichtenstein‘s email the next 

day.21 See Brungart v. BellSouth Telecomm., Inc., 231 F.3d 

791, 799 (11th Cir. 2000) (―[T]he plaintiff must generally 

show that the decision maker was aware of the protected 

conduct at the time of the adverse employment action.‖ 

(emphasis added)).

In its brief, UPMC argues that any inference of 

causation is defeated by Lidey‘s claim that she decided to 

terminate Lichtenstein prior to January 3rd. This argument is 

unavailing because, as discussed below in our analysis of 

pretext, Lichtenstein has established a genuine dispute about 

the date of UPMC‘s termination decision and whether it 

occurred before or after January 3rd.22 UPMC claims, for 

 

(which contained the note about Lichtenstein‘s mother being 

sick on January 3rd), Lidey responded, ―[i]t doesn‘t mean that 

I looked at that, and I was, I don‘t believe I looked at it at that 

point in time.‖ Id. 

21 Although Lichtenstein‘s email did not specifically state that 

she missed work on January 3rd because of her mother‘s 

hospitalization, Lidey was aware from the staff log that 

Lichtenstein‘s January 3rd absence was a result of her mom 

being sick.

22 A similar limitation applies to the District Court‘s causation 

analysis, the conclusion of which was dictated by its finding
31

example, that Lidey decided to fire Lichtenstein for arriving 

late and leaving early on December 30th. UPMC‘s position 

statement to the EEOC, however, made no mention of this 

incident as a factor in its decision, and Lidey could not even 

recall when she learned about it. A trier-of-fact could infer 

from this that UPMC did not discover the December 30th 

incident until sometime after Lichtenstein‘s termination. A 

post hoc ground for termination, while potentially relevant to 

the calculation of damages, is ―irrelevant‖ to the question of 

causation. Brenneman, 366 F.3d at 416 n.2. Accordingly, at 

this stage, UPMC does not benefit from the principle that 

employers need not suspend plans to discipline an employee 

upon discovering that said employee engaged in protected 

activity on matters unrelated to the contemplated action. See

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) 

(establishing this principle in the Title VII context); Salameh 

v. Sears Holding Mgt. Corp., No. 08 C 4372, 2010 WL 

183361 (N.D. Ill. Jan. 13, 2010) (applying principle to the 

FMLA context). 

For all of the abovementioned reasons, we believe 

Lichtenstein has presented sufficient evidence to establish a 

 

that Lichtenstein had not invoked her right to FMLA leave on 

January 3rd. Since this removed Lichtenstein‘s January 3rd 

absence from FMLA‘s protections, the District Court 

regarded any and all considerations of this absence irrelevant 

to causation. Thus, because ―the wheels of [Lichtenstein‘s] 

termination were already in motion‖ by January 8th, the 

District Court concluded that Lichtenstein failed to 

demonstrate a causative link. Lichtenstein, 805 F. Supp. 2d at 

213.
32

prima facie case of causation. This evidence, when drawing 

all reasonable inferences in Lichtenstein‘s favor, is sufficient 

for a fact-finder to conclude: (1) Lidey‘s decision to terminate 

Lichtenstein was triggered by the January 3rd absence; (2) 

prior to terminating Lichtenstein, Lidey learned that the 

January 3rd absence was likely taken for an FMLAqualifying reason; and (3) by proceeding with the termination, 

Lidey considered Lichtenstein‘s FMLA activity a ―negative 

factor‖ that further justified the termination. 

3. Pretext

We now address the legitimate, non-discriminatory 

reasons that UPMC has articulated for terminating 

Lichtenstein and consider whether Lichtenstein has 

established reasonable doubt that this proffered justification is 

mere pretext for retaliation. 

 

According to UPMC, Lichtenstein was terminated 

because of her chronic tardiness and absenteeism, with the 

―last straw‖ being her late appearance and early departure on 

December 30th. Br. at 43. Specifically, UPMC states that:

[T]he decision to terminate Plaintiff‘s employment 

was made after Plaintiff, despite being expressly told 

that she was to report for her scheduled shift on 

December 30, 2007, decided to make her own 

schedule by arriving very late and leaving very early. 

In fact, the decision was made prior to Ms. Lidey 

leaving the office for vacation on December 30, 2007. 

Indeed, Ms. Lidey spoke to Helene Brown about the 

decision to terminate Plaintiff prior to January 1, 2008 
33

and Ms. Brown concurred in that decision.

Id. at 15 (internal citations omitted). UPMC thus claims that 

―[n]either the January 3, 2008 nor January 8, 2008 absences 

were taken into account‖ in the termination decision. Id.

In order to demonstrate that UPMC‘s proffered 

justification for terminating her is merely pretextual, 

Lichtenstein ―must point to some evidence, direct or 

circumstantial, from which a factfinder could reasonably . . . 

disbelieve the employer‘s articulated legitimate reasons.‖ 

Fuentes, 32 F.3d at 764. To do so, Lichtenstein ―must 

demonstrate such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in [UPMC‘s] 

proffered legitimate reasons for its actions that a reasonable 

factfinder could rationally find them  ̳unworthy of credence.‘‖ 

Id. at 765. Notwithstanding the District Court‘s conclusion to 

the contrary, we believe Lichtenstein has met this burden. To 

begin with, Lichtenstein has presented evidence that 

contradicts UPMC‘s two key assertions that (1) the December 

30th incident was the ―final‖ straw that triggered 

Lichtenstein‘s termination, and (2) Lidey made the 

termination decision prior to Lichtenstein‘s absence on 

January 3rd.

First, while UPMC claims that the December 30th 

incident was the ―final straw‖ triggering Lichtenstein‘s 

termination, a trier-of-fact could reasonably infer that UPMC 

was not even aware of this incident prior to terminating 

Lichtenstein. This inference can be drawn from the following 

evidence: (A) Lidey could not recollect when she first learned 

about the December 30th incident, (B) UPMC did not cite the 

incident as a factor in the termination decision in its 
34

explanation to the EEOC; and (C) the incident was not 

included in Lichtenstein‘s staff log that Lidey can be inferred 

to have reviewed prior to firing her.

Second, the only evidence showing Lidey decided to 

fire Lichtenstein prior to going on leave is Lidey‘s own 

testimony. This is important because Lidey contradicted 

herself on this very point. At least twice during her 

deposition Lidey stated that she couldn‘t recall if she made 

the termination decision prior to going on vacation. 

Similarly, although Lidey stated that she always spoke with 

Brown prior to firing an employee, she testified at least three

times during her deposition that she could not recall if she 

spoke with Brown before or after going on vacation. These 

contradictions go to the very core of UPMC‘s proffered 

reason for terminating Lichtenstein. They also ―raise 

suspicions‖ about Lidey‘s credibility. See Bray v. Marriott 

Hotels, 110 F.3d 986, 990 (3d Cir. 1997) (―An inference of 

pretext may arise if the plaintiff can raise suspicions with 

respect to the defendant's credibility . . . .‖). Not only did 

Lidey repeatedly contradict herself on the timing of her 

decision, substantial evidence contradicts her assertion that 

she did not know Lichtenstein‘s mother was ill.23 Since 

 

23 This evidence includes: (1) Brown‘s testimony that Lidey 

told her about Lichtenstein‘s mother‘s illness prior to 

terminating Lichtenstein, (2) Lidey‘s request and receipt of 

Lichtenstein‘s staff log in which the words ―sick mom‖ were 

clearly written in the entry for the January 3rd absence, and 

(3) Lidey‘s receipt of and reply to Lichtenstein‘s email in 

which Lichtenstein had discussed her mother‘s 

hospitalization.
35

Lidey‘s testimony is the only evidence showing that the 

termination decision was made prior to January 3rd, a trierof-fact would be justified in giving this evidence little 

evidentiary weight.

In the opinion below, however, the District Court 

reasoned that Lidey‘s contradictions were immaterial because 

they merely pertained to the timing of UPMC‘s decision (i.e., 

whether Lidey made the decision before or after she went on 

vacation), not to her proffered justification for doing so (i.e., 

Lichtenstein‘s attendance and scheduling problems). 

According to the District Court, ―Ms. Lidey‘s testimony does 

not offer inconsistent reasons for Ms. Lichtenstein‘s 

termination; the reason is consistently her attendance and 

scheduling problems.‖24 Lichtenstein, 805 F. Supp. 2d at 209. 

The District Court‘s reasoning is flawed. The question is not 

whether UPMC discharged Lichtenstein for absenteeism and 

tardiness; the question is whether Lichtenstein‘s FMLAqualifying leave on January 3rd was a ―negative factor‖ that 

hastened her termination. 29 CFR § 825.220(c); see also

Cavin, 346 F.3d at 726 (―[A] termination based only in part 

on an absence covered by the FMLA, even in combination 

with other absences, may still violate the FMLA.‖ (internal 

quotation marks omitted)). The timing of UPMC‘s decision 

is thus critical to determining whether UPMC relied solely on 

the pre-January 3rd incidents, or whether it also considered 

the January 3rd absence as an additional negative factor. 

 

24 The District Court reasoned that Lidey‘s testimony ―is not 

so much inconsistent as it is vague as to the date on which 

certain events took place three years earlier.‖ Lichtenstein, 

805 F. Supp. 2d at 209.
36

The importance of timing to the question of pretext 

was illustrated by the Seventh Circuit in Kohls v. Beverly 

Enterprises Wisconsin, Inc., 259 F.3d 799 (7th Cir. 2001). In 

Kohls, the employee engaged in behavior prior to taking 

FMLA leave that was clearly sufficient to warrant her 

termination. 259 F.3d at 805. The Seventh Circuit noted, 

however, that there was ―an additional twist‖ to the case 

because the employer ―did not decide to fire Kohls until some 

time after she took leave.‖ Id. This was important, the 

Seventh Circuit explained, because:

We can imagine circumstances in which the timing of 

this decision could lead a fact finder to infer that the 

employee would not have been fired absent her taking 

of leave (if, for example, a supervisor who had been 

aware of problems with an employee did not decide to 

fire the employee until she took leave, and the 

supervisor based the firing on the incidents of which 

the employer had already been aware).

Id. at 806. Although the Seventh Circuit affirmed summary 

judgment for the employer, it did so because the record was 

―clear‖ that ―the employer did not discover many of the 

deficiencies in [the employee‘s] work . . . until after [the 

employee] took leave.‖ Id. (emphases added).

 

As with the employee in Kohls, Lichtenstein engaged 

in behavior that was undoubtedly sufficient for UPMC to 

terminate her employment (i.e., attendance and scheduling 

problems during a probationary period in which a progressive 

disciplinary policy did not apply). In sharp contrast, 

however, to the situation in Kohls, the record here is clear 

(with the exception of the December 30th incident) that 
37

UPMC was aware of Lichtenstein‘s performance deficiencies

prior to her taking leave on January 3rd. Despite this 

knowledge, UPMC did not fire Lichtenstein until after she 

took her January 3rd leave. Although UPMC insists that the 

timing can be explained by the simple fact that Lidey left for 

vacation on December 31st and did not have an opportunity 

to fire Lichtenstein prior to January 3rd, Lidey‘s own 

testimony raises significant doubts about this explanation. 

Indeed, Lidey herself could not remember when she made the 

decision to terminate Lidey, nor could she remember when 

she learned of the December 30th incident that purportedly 

prompted this decision.

 

We believe, therefore, that Lichtenstein has met her 

burden of demonstrating pretext because, as per the Seventh 

Circuit‘s reasoning, ―the timing of [UPMC‘s] decision could 

lead a fact finder to infer that [Lichtenstein] would not have 

been fired absent her taking of leave.‖ Id.; accord Moorer v. 

Baptist Mem’l Health Care Sys., 398 F.3d 469, 488–90 (6th 

Cir. 2005) (―The record . . . shows that [the employer] was 

aware of many of Moorer‘s alleged performance deficiencies 

prior to his FMLA leave, thereby casting doubt on the timing 

of the purported reasons for his termination.‖).

B. INTERFERENCE

By terminating her employment for having invoked 

her right to FMLA leave, Lichtenstein argues UPMC 

unlawfully interfered with her rights in violation of 29 U.S.C. 

§ 2615(a)(1). See Erdman, 582 F.3d at 509 (―[F]iring an 

employee for a valid request for FMLA leave may constitute 

interference with the employee‘s FMLA rights as well as 
38

retaliation against the employee.‖).25 To prevail on her 

interference claim, Lichtenstein must show (1) she was 

entitled to take FMLA leave on January 3rd and/or January 

8th, and (2) UPMC denied her right to do so. See Callison, 

430 F.3d at 119.

 

In proving that UPMC interfered with her rights, 

Lichtenstein does not need to prove that UPMC acted with 

discriminatory intent. Sommer v. The Vanguard Group, 461 

F.3d 397, 399 (3d Cir. 2006); Callison, 430 F.3d at 120. The 

FMLA, however, ―does not provide employees with a right 

against termination for a reason other than interference with 

rights under the FMLA.‖ Sarnowski, 510 F.3d at 403. 

 

25 It is not clear to us that Erdman necessarily guarantees that 

plaintiffs have an automatic right to claim interference where, 

as here, the claim is so clearly redundant to the retaliation 

claim. In recent years, several federal courts of appeals have 

affirmed dismissal of interference claims that— although not 

necessarily analogous to Lichtenstein‘s claim here—were 

duplicative of the plaintiffs‘ retaliation claims. E.g., Lovland, 

674 F.3d at 811–12; Seeger v. Cincinnati Bell Telephone Co., 

681 F.3d 274, 282–83 (6th Cir. 2012); Stallings v. Hussmann 

Corp., 447 F.3d 1041, 1051 (8th Cir. 2006); see also Atchison 

v. Sears, 666 F. Supp. 2d 477, 489 (E.D. Pa. 2009) 

(―[Plaintiff‘s] interference claim is identical to his retaliation 

claim, and premised on the same allegation . . . . He cannot 

escape the McDonnell Douglas analysis to prove his case 

merely by affixing an  ̳interference‘ label to one of his 

duplicative claims. Thus, [plaintiff‘s] FMLA violation 

allegations should be analyzed as a retaliation claim.‖). Since

this issue was not raised below nor presented on appeal, we 

do not address it here. 
39

UPMC, therefore, can defeat Lichtenstein‘s claim if it can 

demonstrate that Lichtenstein was terminated for reasons 

―unrelated to‖ her exercise of rights. Id.; accord Ballato v. 

Comcast Corp., 676 F.3d 768, 772 (8th Cir. 2012) (―If there 

exists a showing of interference, the burden shifts to the 

employer to prove there was a reason unrelated to the 

employee‘s exercise of FMLA rights for terminating the 

employee.‖); Michniewicz v. Metasource, LLC, 756 

F.Supp.2d 657, 666 (E.D. Pa. 2010) (―The employee bears the 

initial burden of showing both elements of the interference 

claim, and then the burden shifts to the employer . . . .‖). 

Whether or not UPMC will be able to meet its burden, we 

have no trouble concluding—for the reasons set forth in our 

retaliation analysis above—that Lichtenstein has met her 

burden at this stage in the litigation.

V. CONCLUSION

For the foregoing reasons, we will vacate the District 

Court‘s grant of summary judgment to UPMC on both the 

retaliation and interference claims and remand to the District 

Court for proceedings consistent with this opinion. 
1

AMBRO, Circuit Judge, Dissenting

Pursuant to the Family and Medical Leave Act of 1993 

(“FMLA”), 29 U.S.C. § 2601 et seq., an employee may 

qualify for unforeseen FMLA leave only by providing an 

employer with notice that contains “sufficient information for 

an employer to reasonably determine whether the FMLA may 

apply to the leave request.” 29 C.F.R. § 825.303(c).

Congress included this notice requirement in order to balance 

the employee’s entitlement to “reasonable leave” with the 

“legitimate interests of employers.” 29 U.S.C. § 2601(b)(2); 

see Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 951 

(7th Cir. 2004) (Posner, J.) (“Conditioning the right to take 

FMLA leave on the employee’s giving the required notice to 

his employer is the quid pro quo for the employer’s partial 

surrender of control over his work force.”). In keeping with 

the purpose and language of the FMLA, I would hold as a 

matter of law that Ms. Lichtenstein failed to provide adequate

notice that the FMLA applied to her January 3, 2008 absence, 

and I would affirm the District Court’s grant of summary 

judgment to the University of Pittsburgh Medical Center 

(“UPMC”). For the reasons given below, and despite Judge 

Van Antwerpen’s well-crafted opinion, I respectfully dissent.

For her interference and retaliation claims to survive 

summary judgment, Lichtenstein must introduce evidence 

that she was entitled to FMLA benefits. Hayduk v. City of 

Johnstown, 386 F. App’x 55, 60 (3d Cir. 2010) (“[T]he first 

elements of both theories [i.e., interference and retaliation] 

are essentially identical: a plaintiff . . . must establish, among 

other things, that he had a right to FMLA benefits.”). To 

establish that entitlement, Lichtenstein must demonstrate that 

she gave her employer adequate notice of the need for FMLA 

leave. See id. Federal regulations require that an employee

“state a qualifying reason for the needed leave.” 29 C.F.R. 
2

§ 825.301(b). When the need for leave is unforeseeable, 

employees must give notice “as soon as practicable under the 

facts and circumstances of the particular case” and according 

to the employer’s “usual and customary notice and procedural 

requirements.” Id. § 825.303(a) & (c). The employee “need 

not expressly assert rights under the FMLA or even mention 

the FMLA,” but must “provide sufficient information for an 

employer to reasonably determine whether the FMLA may 

apply to the leave request.” Id. § 825.303(b). Compare

Sarnowski v. Air Brook Limousine, Inc., 510 F.3d 398, 402

(3d Cir. 2007) (“In providing notice, the employee need not 

use any magic words.”), with Hayduk v. City of Johnstown, 

580 F. Supp. 2d 429, 471 (W.D. Pa. 2008) (“The FMLA does 

not require an employer to be clairvoyant.” (quoting 

Brenneman v. MedCentral Health Sys., 366 F.3d 412, 428

(6th Cir. 2004)). The employer may have a duty to “inquire 

further . . . to ascertain whether leave is potentially FMLAqualifying,” 29 C.F.R. § 825.301(a), but that duty only arises

when the employee provides adequate notice. See Wilson v. 

Lemington Home for the Aged, 159 F. Supp. 2d 186, 192 

(W.D. Pa. 2001); De Luca v. Trs. of Univ. of Pa., 834 

F. Supp. 2d 282, 293 (E.D. Pa. 2011).

Lichtenstein contends that she gave proper notice 

when she called off on January 3 and told the nursing 

supervisor, “I 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.” I agree with my 

colleagues that the notice issue is generally a question of fact 

and “the critical test is not whether the employee gave every 

necessary detail to determine if the FMLA applies, but how 

the information conveyed to the employer is reasonably 

interpreted.” Id. at 16 (quotation marks & citation omitted). 

However, I cannot agree that “genuine factual disputes exist 

about whether Lichtenstein’s notice was adequate.” Maj. Op. 

at 21.
3

Lichtenstein did not state a qualifying reason for her 

January 3 absence because she failed to mention essential 

details that were critical for adequate notice, namely the 

seriousness of her mother’s condition and her mother’s need 

for care. Lichtenstein conveyed to UPMC that her mother 

was at the hospital, but not that her mother was suffering 

from a serious health condition. According to the majority, 

Lichtenstein’s notice might have been sufficient because 

“many people in [her mother’s] situation do require [FMLAqualifying] care.” Maj. Op. at 19 (emphasis in text). This 

view imposes on employers a much broader obligation than, I 

believe, the FMLA requires. 

Consider, for example, an employee who calls out 

from work saying she needs to go to the hospital. Whether 

that employee is going to the hospital for an emergency 

procedure, a routine check-up, or just to pick up a friend, the 

majority’s reasoning dictates that the notice cannot be 

designated inadequate as a matter of law because “many 

people in this situation” require care for a serious health

condition. Indeed, simply calling out “sick” would qualify as 

sufficient notice under the majority’s reading of the FMLA

had the Department of Labor not adopted an explicit rule to 

the contrary. See 29 C.F.R. § 825.303(b). “If you have brain 

cancer but just tell your employer that you have a headache, 

you have not given the notice that the Act requires.” 

Aubuchon, 359 F.3d at 952.1The majority’s lenient reading 

 

1

The Seventh Circuit Court requires that an employee’s

notice “give the employer enough information to establish 

probable cause, as it were, to believe that he is entitled to

FMLA leave.” Id. at 953; but see Scobey v. Nucor Steel-Ark., 

580 F.3d 781, 788 (8th Cir. 2009) (applying a more lenient 

notice standard). I do not address whether that is the 

appropriate standard to apply to notice questions in FMLA 
4

of the notice requirement distorts the balance Congress and 

the Department of Labor struck between employee and 

employer interests, and improperly “place[s] a substantial and 

largely wasted investigative burden on employers.” Id. at 

953. 

Lichtenstein also conveyed to UPMC that she needed 

the day off, but not that the day off was necessary to care for 

her mother. Though UPMC conceded that caring for one’s 

mother under such circumstances “would be a natural thing to 

do,” Maj. Op. 21, empathy cannot make up for Lichtenstein’s 

failure to mention an FMLA-qualifying reason for her 

absence. See Aubuchon, 359 F.3d at 952 (“Wanting to stay 

home with one's wife until she has the baby, while 

understandable, is not the same thing as wanting to stay home 

to care for a spouse who has a serious health condition.”).

In addition to omitting critical details from her 

statements to the nursing supervisor, Lichtenstein failed to 

provide notice “as soon as practicable.” See 29 C.F.R. 

§ 825.303(a). She returned to work on January 4—while her 

mother was still in the hospital—and did not notify a 

supervisor about her mother’s serious health condition. 

Lichtenstein even testified at her deposition that she first 

asked for FMLA leave on January 8, not January 3. App. at 

66 (“The first time that I asked [for leave] . . . [w]as January 8 

of 2008.”). Even if her request for leave on January 8 was 

made “as soon as practicable,” which it was not, the direct 

evidence in the record indicates only that the decision was 

made to terminate Lichtenstein before the 8th. See App. at 

345 (Lidey testifying that the decision was made “before New 

Year’s”); 423-424 (Brown testifying that the decision “had to 

be [made] prior to January 8th”). Lichtenstein argues that the 

 

cases, but we should be aware of the important considerations 

that led the Seventh Circuit to adopt it.
5

decision may have been made “on or after January 7,” 

Lichtenstein Br. at 17, but she only cites non-probative 

circumstantial evidence to support her claim. See id. at 14 

(citing App. at 331 (Lidey testifying that she “discussed 

[Lichtenstein’s call-offs] with Human Resource” on January 

7)). Lichtenstein cites no direct evidence that the decision 

was made after the 8th and does not address Brown’s 

testimony.

There are situations in which an employee provides 

sufficient notice to trigger an employer’s duty to inquire, but 

this is not one of them. See Satterfield v. Wal-Mart Stores, 

Inc., 135 F.3d 973, 978-91 (5th Cir. 1998) (rehearing and 

rehearing en banc denied) (holding, as a matter of law, that an 

employee’s statement that she “was having a lot of pain and . 

. . wouldn’t make it in to work that day” provided insufficient 

notice to her employer under the FMLA). That Lichtenstein’s 

statements might reasonably be construed as providing

adequate notice is a bridge too far. If notice is adequate when 

an employer can “reasonably determine whether the FMLA 

may apply,” 29 C.F.R. § 825.303(c), then we should find that 

notice is inadequate when, as in this case, an employee omits 

vital pieces of information that would distinguish FMLA 

leave from an ordinary absence. 

If Lichtenstein’s statements could reasonably be 

interpreted as sufficient notice of her need for FMLA leave, I 

would join my colleagues and reverse the grant of summary 

judgment. However, I believe that the statements are 

insufficient as a matter of law. Thus I respectfully dissent.