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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______

No. 11

- 3419

______

JAMIE LICHTENSTEIN, Appellant

v.

UNIVERSITY OF PITTSBURGH MEDICAL CENTER, trading and doing bu siness 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

- 13 50) District Judge: Honorable William L. Standish

______

Argued on June 19, 2012

Before: AMBRO, VANASKIE and VAN ANTWERPEN,

Circuit Judges2 (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 Appell ees

______

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 through out 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 mu st 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 H ISTORY

Jamie Lich tenstein began working with UPMC in
October 2 005 as a research associat e 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, Licht enstein 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 change s had passed . The most egregious
incident during this time occurred on December 1st, a day
which Lichtenstein was scheduled to wo rk 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

- wor kers told Lidey that Lichtenstein claimed she needed the day off to do
school work 2 and/or at tend a concert. Lichtenstein‘s co

workers 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 Lichtenste in for an explanati on. 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 furth er this.‖ Ap p. 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 Christm as when Lidey sent an email thanking
her fo r 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 fo r 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 ar rived at work several hours late and departed several hours early. Although this
incident was not recorded on Lichtenstein‘s staff log, 3 and although Lidey was unable to recall when she f irst learned about it, 4 UPMC insists this incident was the trigger f or Li chtenstein‘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 Lichten stein,
and is the document UPMC submitted to the EEOC as
―Exhibit M‖ to document Lichtenstein‘s attendan ce 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 fact s: (1) Lidey went on vacation on December 31st and
di d 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 re lies 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 testifi ed that prior to terminating employee s 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 wa s ―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 a nd look at dates.‖ Id. at
331

.

Q: ―Was [the termin ation 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

Re sources] after you came back7 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 ca nnot 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 Li chtenstein‘s termination. Id. at 423. B rown could only recall that it was before Ja nuary 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

prope r pro cedure 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 sh ift and Cynthia Krautz (Lidey‘s replacement while she was a way) emailed Lidey to inform her that Lichtenstein had called off. Although Krautz ‘s email did not indicate a reason for
Lich tenstein‘s call

- off, Amy Harris (UPMC‘s employee in charge of staff sch eduling) 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 s omething,‖

i d. 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 h er 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 te rminate 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. A t 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 r eleased, 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 hundre ds o f 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 9 th 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 e vidence in the record, including the fact that Lidey responded to
Lichtenstein‘s email. 7 Al though 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 car e for her mother.‖ Id. Brown testified that Lidey conveyed this
information prior to Lichtenstein‘s termination.

After her termination, Lichtenst ein fil ed a complaint with the EEOC alleging religious discrimination. In response, UPMC sent a position s tatement to the EEOC in
which it described its reasons for firing Lic htenstein. According to this position s tatement:

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 s chool 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 L idey‘s reply email was not simply an automated out

- of

office 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 ―thre e absences‖ referenced in the position s tatement was Lichtenstein‘s absence on January 3rd. Lidey‘s l ate 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 , L ichtenstein 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 BACKGROUND 8

A. S TANDARD OF R EVIEW

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. §

1 331. 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 Radi o Corp. , 475 U.S. 574, 587 (1986).

B. F AMILY M EDICAL L EAVE A CT (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] employe es 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 dur ing 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) (―W hen a family emergency arises, . . . workers need

r eassurance that they will not be asked to choose between continuing their employment, and meeting their . . . family obligati ons.‖).

As indicated, eligible employees are entitled to take FMLA if they ―care for‖ a family member with a ―serious

health con dition.‖ 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 a lso 29 C.F.R. § 825.114 (defining inpatient care as ―an overnight stay in a hospital‖ ). To ―care13 for‖ a family member, the employee must provide either physical or ― psychological care ,‖ including ― psycho logical
comfort and reassurance which would be benef icial 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 not ice 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 reasona bly 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 right s . 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. § 26 15(a)(2). The former provision is generally, if imperfectly, referred to as
―interference‖ whereas the latter is often referred to as
―retaliation.‖ Cal lison v. City of Philadelphia , 430 F.3d 117, 119 (3d Cir. 2005). Although neither provision expressly forbids employers from terminating employees ― for having

9 Se e generally Cavin v. Honda of America Mfg., Inc. , 34 6 F.3d 713, 722 (6th Cir. 2003) (―T he regulations suggest that notice requirements for unfore seeable 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 at tempted to exercise FMLA rights, ‖ a De partment 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 em ployment 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 statutor y 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 spurre d its own share of confusion, with some courts citing Conoshen ti 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 (8 th 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 gravame n 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 interferenc e with the employee‘s FMLA rights as well as retaliation against the employee.‖). As will be seen, both claims are closely
inter t wined.

A. R ETALIATION

To prevail on a retaliation claim under the FMLA, the plaintiff must prove 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. 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, c laims base d
on circumstantial evidence have been assessed under the
burden

- shifting framework es tablished in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), while claims ba sed on
direct evidence have been assessed under the mixed

- motive
framework set forth in Price Waterhouse v. Hopkins , 49016 U.S. 228, 276

– 77 (1989) (O‘Connor, J., concurring). See
Conoshenti , 364 F.3d at 147. 11

Although s ome 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 t he only federal court of appeals t o rule
on the issue has held that Gross does not preclude FMLA
mixed

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

, 57 9 F.3d 688, 692 (6th Cir. 2009). The Department of Labor has taken a similar position, stating its view in an amicus
brief that th e 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 Altho ugh 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, an d is t he prevail ing 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 Gr p

. , 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 ana lysis would apply in a reta liation 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 Lichten stein (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 L ichtenstein v.

U niv. of P itt sburgh M ed. C tr. , 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. Notice 13

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 infor mation 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. S ee S arnowski v. Air Brooke Limousine, Inc. , 510 F.3d 39 8, 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 Lichtenst ein had called off on the same day to be with her ―sick mom.‖ As set forth in our
discu ssion 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 s ufficient 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 ‖ ( e mphasis 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 t he FMLA applies, but ―how the information conveyed to the employer is reasonably interpreted.‖ S arnowski , 510 F.3d at

402 . How the employee‘s notice is reasonably interpreted is generally a question of fact, not law. 14 M urphy 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. Wal

Mart Stores, Inc. , 135 F .3d 973, 980

– 81 (5th Cir. 1998). In
such c ases, the adequacy of notice can be determined as a

matter of law.20 Nat’l. LTL, Inc. , 6 18 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. 1 6, 2012); Zawadowicz v. CVS. Corp. , 99 F . Supp. 2d 518, 529 (D.N.J. 2000); T HIRD C IRCUIT M ODEL J URY I NSTRUCTIONS

– C IVIL § 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 superviso r 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 leav e, br. at 34, this is belied by the unforeseeable nature of the emergency and UPMC‘s previ ous admission s that Lichtenstein followed proper procedure by calling the nursing supervisor when she did.21 Finally, during Lichtenste in‘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‖ ( e m phases 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

conditio n 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 questio n. 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) (em phases 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 such22 care, a jury might find that reasonable notice was given under
the circumstances. 16

Finally , i n 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 com mon 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 Healt h Problems , 21

P REHOSPITAL & D ISASTER M ED

. 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

lik ely 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 regarding23 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, t hat 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 hospi tal, 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
Lich tenstein‘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 Lab or, 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 regula tion refers to ―continuing care ‖ rather than
―cont inuing 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

c alendar days‖).24 necessary. 29 C.F.R. § 825.303(a). Thus, since we believe there is a genuine dispute about whether Lichten stein‘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 bec ause 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] bo th 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 nee ded 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 reasonabl e 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 circumstances25 ―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 a t 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 Gol f Enterprises , LLC , 270 F.Sup p.2d 401, 405 (S.D.N.Y. 2003) (― By the very terms o f the FMLA regulations, a child‘ s offering comfort and reassurance to a bedridden parent qualif ies 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 .‖ 2 9 CFR § 825.124 (b); see also Romans v. Mich. Dep’t of Human Serv s

. , 668 F .3d 826, 840

– 41 (6th Cir. 2012) (stating that ― plain languag e of the regulations‖ entitles an employee to FMLA leave even when other relatives are
available to care for the sick famil y member)

.

19 At o ral 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) sin ce 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, how ever, 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

wh at 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

- fac t 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

p attern 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 disp ute 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
causati ve 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 suffi cient standing alone to create an inference of causality and defeat summary judgment. ‖

LeB oon v. Lancaster Jewish Cmt y . Ctr. Ass ’ n , 503 F.3d 217, 232 (3d Cir. 2007). ―Where the temporal proximity is not  ̳unusually suggestive,‘ we ask whether  ̳the proffer ed 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 Lid ey 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. , J alil v. Avdel Corp. , 873 F.2d 701, 708 (3d Cir. 1989) (finding two days unduly suggestive); See ger v. Cincinnati Bell Tel. Co. , 68128 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

attendanc e 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 recor d. 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 c ould 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 plain tiff] 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 knowl edge of the protected29 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 L idey 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

- o f

- 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 insis tence that she did not
know of Lichtenstein‘s mother‘s illness 20 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. Whe n 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 log30 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 car e 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 B runga rt 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 argue s 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 disp ute 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 t hat
sh e 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 finding31 example, that Lidey decided to fire Lichtenstein for arriving late and leaving early on December 30th. UPMC‘s position

statement to t he 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 Lic htenstein‘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 th e 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 invoke d 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 considera tions of this absence irrelevant to causation. Thus, b ecause ―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. S upp. 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 FMLA

qualifying reason; and (3) by proceeding with the termination, Lidey considered Lichtenstein‘s FMLA activit y 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, 200833 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 f ind the m  ̳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) t he 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 wh en she first learned about the December 30th incident, (B) UPMC did not cite the
incident as a factor in the termination decision in its34 explanation to the EEOC; and (C) the incident was not included in Lichtenstein‘s staff log that Lidey can be inferred

t o 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 h er 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 h er 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 , 1 10 F.3d 986, 990 (3d Cir. 1997) (―A n 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 o f 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 ill ness prior to terminating Lichtenstein, (2) Lidey ‘s request and receipt of

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

cle arly written in the en try 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 trier

of

- 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 qu estion is not whether UPMC discharged Lichtenstein for absenteeism and tardiness; the question is whether Lichtenstein‘s FMLA

qualifying leave on January 3rd was a ―negative factor‖ that

hastened her termination. 2 9 CFR § 825.220(c) ; see also

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

on an absence cove red 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 wheth er 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 inco nsistent 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 h ad 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 peri od 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) that37 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 Decemb er 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 sh e 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 employe r] 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. I NTERFERENCE

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 as38 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 C allison

, 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. S ommer v. The Vanguard Group , 461 F.3d 397, 399 (3d Cir. 2006); Callison , 430 F.3d at 120. The FMLA, however, ―do es not provide employees with a right against termination for a reason other than interference with rights under the FMLA.‖ S arnowski , 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 w here, as here, the claim is so clearly redundant to the retaliation claim. In recent years, s everal federal courts of appeals have
affirmed dismissal of interference claims that

— although not necessarily analogous to Lichtenstein‘s claim here

— were duplica tive 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, 4 89 (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 affi xing an  ̳interferen ce‘ label to one of his duplicative claims. Thus, [plaintiff‘s] FMLA violation allegations should be a nalyzed 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 terminate d 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 r eason unrelated to the employ ee‘ s exercise of FMLA right s for terminating the employee.‖); M ichniewicz v. Metasourc e, LLC , 756 F.Sup p.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 t he 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

F or 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

, D issent ing

Pursuant to the Family and Medical Leave Ac t 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 “r easonable leave” w ith 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
notic e 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 claim s 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 tha t she gave her employer adequate not ice of the need for FMLA
leave. See i d. Federal regulations require that an employee “state a qualifying reason for the needed leave.” 29 C.F.R.2 § 825.301(b). W hen 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. § 825.30 3(b). C ompare 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 .” )

, w ith 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 FMLA

qualifying

, ” 29 C.F.R. § 825.301(a), but that duty only arise s when the employee provides adequate notic e. 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 ag ree 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 ad equate 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 maj ority

, Lichtenstein’s notice might have been sufficient because “many people in [her mother’s] situation do require [FMLA

qualifying] 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 s he 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

m ajority’s r easoning 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 majori ty’s reading of the FMLA had the Department o f Labor not adopted an explicit rule to
the contrary. S ee 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 requ ires.”
Aubuchon

, 359 F.3d at 952. 1 The 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 FMLA4 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 waste d inv estigative 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 a n 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
unders tandable , 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

statement s to the nursing supervisor

, Lichtenstein failed to provide notice “as soon as pr acticable .” 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 firs t asked for FMLA leave on January 8, not January 3. App . at 6 6 (“The first time that I asked [for leave] . . . [w]as January 8 of 2008.”). E ven 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 Ja nuary 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
suff icient notice to trigger an employer’s duty to inquire , but
this is not one of them. S ee 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 s tatement 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). T hat 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 d istinguish FMLA leave from an ordinary absence

.

If Lichtenstein’s statements could reasonably be interpreted as sufficient notice of her need f or FMLA leave, I would join my colleagues and reverse the grant of summary judgment. However, I believe that t he statements are insufficient as a matter of law. Thus I respectfully dissent.