2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-23-2009

Erdman v. Nationwide Ins Co

Precedential or Non-Precedential: Precedential

Docket No. 07-3796

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-3796

 

BRENDA L. ERDMAN,

 Appellant,

 v.

NATIONWIDE INSURANCE COMPANY,

 Appellee.

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 05-cv-00944)

District Judge: Honorable Christopher C. Conner

 

Argued November 17, 2008

Before: SCIRICA, Chief Judge, FUENTES and

HARDIMAN, Circuit Judges.

(Filed: September 23, 2009 )
2

Patricia C. Zucker [Argued]

Daley Zucker Meilton Miner & Gingrich

1035 Mumma Road

Suite 101

Wormleysburg, PA 17043-0000

Attorneys for Appellant

Donald R. Keller [Argued]

Vladimir P. Belo

Bricker & Eckler

100 South Third Street

Columbus, OH 43215-0000

Attorneys for Appellee

 

OPINION OF THE COURT

 

HARDIMAN, Circuit Judge.

Brenda Erdman challenges the District Court’s summary

judgment in favor of her former employer, Nationwide

Insurance Company. The principal issue on appeal — whether

Erdman accumulated sufficient hours to qualify for leave under

the Family and Medical Leave Act (FMLA) — raises questions

of first impression in this Court.
3

I.

Our review of the District Court’s grant of summary

judgment is plenary, viewing the facts in the light most

favorable to the nonmoving party. Summary judgment is

appropriate only if there are no genuine issues of material fact

such that the movant is entitled to judgment as a matter of law.

See McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009).

A.

Nationwide hired Erdman in 1980 and she held various

full-time positions until 1998, when she asked to work part-time

so she could care for her daughter Amber, who was born with

Down Syndrome. Nationwide granted this request, as well as

Erdman’s request four years later to switch to a four-day work

week, which rendered Erdman a non-exempt employee under

federal law. According to Patty Sarno, Erdman’s supervisor at

the time, Erdman was a reliable employee who regularly worked

extra hours outside the office. Indeed, Sarno consistently

authorized payment for these hours or allowed Erdman to use

them as “comp” time.

In early 2002, soon after Erdman switched to a four-day

work week, Sarno informed her that she should “put in the hours

that . . . you’re supposed to put in and nothing more than that.”

In September 2002, Erdman e-mailed Stella Getgen, who had

replaced Sarno as Erdman’s supervisor some five months

earlier, to request clarification whether she was still allowed to

work extra hours for use as “comp” time. There is no record of

any response by Getgen, who, despite this e-mail, claims that
4

she first heard the phrase “comp” time in a January 2003

meeting with Erdman regarding a discrepancy in Erdman’s

accrued vacation time. After Erdman explained that she had

used “comp” time, Getgen conceded that Erdman’s vacation

time calculation was correct, and made no objection to her use

of “comp” time.

A week later, on January 28, 2003, Getgen e-mailed

Erdman to admonish her for three reasons: (1) Erdman’s

overtime was unapproved; (2) Erdman failed to consult Getgen

before visiting a policyholder’s residence; and (3) employees in

Erdman’s position were not authorized to conduct fieldwork.

Getgen concluded: “As much as we are tempted to do a

‘simple’ field investigation, there are legal and logistical reasons

that prohibit us from doing so.” Two weeks later, on February

10, 2003, Getgen for the first time advised Erdman that she

could no longer use extra hours for “comp” time.

Soon after Getgen admonished her, Nationwide informed

Erdman that her part-time position would be eliminated, but she

could work full-time instead. Erdman accepted the full-time

position, but Nationwide claims that Erdman became angry and

erratic because she was unhappy with her return to full-time

status. Over the next several weeks, Nationwide contends that

Erdman inappropriately questioned other employees about

confidential salary information, encouraged others to work

slowly to avoid driving up production standards, made malicious

accusations against Getgen, and committed various other acts of

insubordination. Erdman disputes these claims.
5

At the time Erdman accepted the full-time position, she

sought clarification that Nationwide would honor her

previously-approved request for vacation during the entire

month of August, which Erdman had typically taken to prepare

Amber for school. Nationwide informed Erdman that it was

unlikely she would be allowed to take vacation in August

because of the pressing need for full-time employees in light of

the unusually large number of employees requesting vacation

that month. Erdman announced that if she could not use

vacation time in August, she would request FMLA leave

instead. 

On April 14, 2003, Erdman began working full-time and

a week later she submitted paperwork requesting FMLA leave

from July 7 to August 29. A human resources employee

responded to this request by telling Erdman that “as far as the

FMLA, I probably don’t see any problems with this.”

Nationwide fired Erdman on May 9, 2003, citing her

purported behavioral problems which culminated on May 8

when Erdman used profanity during a phone conversation that

was monitored for quality control purposes. Company policy

states that personal calls are not monitored, and Erdman

prefaced a personal call with a profane disclaimer: “This is a

personal call and should not be reviewed for quality purposes,

assholes.”

B.

Alleging that Nationwide’s stated motives were

pretextual and that she was actually fired for requesting FMLA
Erdman also brought claims under the Pennsylvania 1 

Human Relations Act (PHRA) and for breach of contract. The

District Court granted summary judgment to Nationwide on the

breach of contract claim and declined to exercise supplemental

jurisdiction over the PHRA claim. Neither of these claims is at

issue on appeal.

6

leave, Erdman brought federal claims under the FMLA and the

Americans With Disabilities Act (ADA). Initially, the District 1

Court granted summary judgment on the FMLA claim, finding

that Erdman could not establish a cause of action — either for

interference or retaliation — because she had not accumulated

the 1,250 hours necessary to qualify as an eligible employee

under the statute. The District Court also granted summary

judgment on the ADA claim, but only to the extent that it was

based on a failure to accommodate theory. Nationwide was

denied summary judgment on Erdman’s ADA “association”

claim.

Nationwide filed a motion for reconsideration. After

briefing and oral argument, the District Court reversed itself and

granted Nationwide summary judgment on the ADA claim in its

entirety, concluding that the ADA’s “association” provision

prohibits only employment decisions based on “unfounded

stereotypes and assumptions against employees who associate

with disabled people.” Erdman v. Nationwide Ins. Co., No.

1:05-CV-0944, 2007 U.S. Dist. LEXIS 61611 at *9-10 (M.D.

Pa. Aug. 22, 2007)(quoting Den Hartog v. Wasatch Acad., 909

F. Supp. 1393, 1400 (D. Utah 1995)). Finding that

Nationwide’s actions were motivated by Erdman’s prior
7

modifications to her work schedule instead of stereotypes or

unfounded assumptions, the District Court held Erdman could

not establish an ADA “association” claim.

Erdman filed this timely appeal, arguing that the District

Court erred in granting summary judgment on the FMLA and

ADA claims. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

III.

An employee is eligible for FMLA leave if she has

worked “at least 1,250 hours of service with [her] employer

during the previous 12 month period.” 29 U.S.C. § 2611(2)(A).

According to Erdman’s records, she worked 1,298.25 hours in

the relevant period, including 118.5 hours from home. In its

calculation, the District Court excluded 57 hours worked from

home prior to Erdman’s September 2002 e-mail to Getgen

asking whether she was allowed to work extra hours for use as

“comp” time, and 20 hours worked from home after Getgen’s

January 2003 e-mail to Erdman admonishing her for doing

fieldwork. The District Court found that Nationwide could not

have had constructive notice of any hours Erdman worked from

home prior to the September 2002 e-mail because Erdman had

previously been told to “put in the hours that . . . you’re

supposed to put in and nothing more than that.” The District

Court also found that constructive notice was dispelled by the

January 2003 e-mail. Consequently, the District Court counted

only 41.50 of the 118.50 hours Erdman worked from home in

calculating the total number of hours she worked in the previous
8

year, which left Erdman 28.75 hours short of FMLA’s threshold

requirement.

A.

The first question is whether a reasonable jury could have

concluded that Nationwide had actual or constructive notice that

Erdman worked at least 1,250 hours, making her eligible under

the FMLA. For FMLA purposes, all work that “the employer

knows or has reason to believe . . . is being performed” counts

toward the threshold requirement. 29 C.F.R. § 785.12. The

parties agree that hours worked off-site or beyond an

employee’s regular schedule count if “[the employer] knows or

has reason to believe that an employee is continuing to work

extra hours.” 29 C.F.R. § 785.11. “[A]n employer need not

have actual knowledge of such off-site work; constructive

knowledge will suffice.” Holzapfel v. Town of Newburgh, 145

F.3d 516, 524 (2d Cir. 1998).

Nationwide does not dispute that Erdman regularly

worked outside of the office for many years, and that Sarno

consistently authorized payment for these hours or allowed

Erdman to use them as “comp” time. Nevertheless, Nationwide

cites three reasons why it had no actual or constructive

knowledge that Erdman continued to do so during the relevant

time period. First, Sarno testified that when Erdman’s position

changed from exempt to non-exempt status in 2002, she told

Erdman to “put in the hours that . . . you’re supposed to put in

and nothing more than that.” Second, Sarno was the only one

with personal knowledge that Erdman worked outside the office,

and Sarno was replaced by Getgen in 2002. Finally, Getgen told
9

Erdman in January 2003 that she was “not authorized to work

outside [her] standard work hours.”

Despite the superficial appeal of Nationwide’s

arguments, they fail to persuade because they do not account for

Erdman’s use of “comp” time. To be sure, Nationwide was on

record that Erdman could not be paid for any additional hours.

But this begs the question whether she could continue — as she

had done for so many years in the past — to work outside the

office to accrue “comp” time. After Erdman became a nonexempt employee in 2002, Sarno expressed concern about the

number of hours that Erdman “put in.” This could reasonably

be interpreted to mean that Erdman was prohibited from

“putting in” any hours for Nationwide outside of the office. Or,

it could reasonably be interpreted to mean that Erdman would no

longer be paid for more hours than she was scheduled to work

on a weekly basis. Allowing Erdman to “put in” extra hours for

later use in lieu of vacation would be entirely consistent with a

desire to eliminate overtime pay, or to ensure salary uniformity.

“Comp” time did not allow Erdman to earn overtime pay or

increase her net salary; it merely allowed her to accumulate

hours while working at home. Absent any clear indication to

the contrary from Nationwide, a reasonable jury could conclude

that the purpose of Sarno’s communication was to prohibit

Erdman from being paid for more hours than she was scheduled

to work each week, without regard to whether Erdman could

continue to accrue “comp” time.

Getgen’s January 2003 e-mail to Erdman illustrates this

point. Read in its entirety, the message has nothing to do with

Erdman working from home or accumulating “comp” time.
10

Getgen enumerated three specific concerns: unapproved

overtime pay; unapproved visits to private residences; and

employees in Erdman’s position conducting fieldwork. This email does not preclude a reasonable jury from finding that

Nationwide had actual or constructive knowledge of Erdman

working from home to accrue “comp” time. There is no

mention of “comp” time anywhere in the e-mail, and the

message may be interpreted as entirely consistent with the

company’s continued acquiescence to Erdman’s accrual of

“comp” time.

Erdman’s September 2002 e-mail to Getgen casts further

doubt on Nationwide’s claim that the company prohibited

Erdman from accruing and using “comp” time. Therein,

Erdman specifically asked about “comp” time in light of

ambiguous communications regarding her hours. Nationwide

never responded to this pointed inquiry, which raises an

inference adverse to Nationwide’s position. A similar negative

inference may be drawn from the January 2003 meeting between

Erdman and Getgen, in which Erdman claims that Getgen tacitly

acquiesced to her continued accrual and use of “comp” time.

Erdman’s version of what transpired at this meeting could lead

a reasonable jury to conclude that Nationwide had actual or

constructive knowledge of Erdman’s continued use of “comp”

time.

Nationwide correctly notes that Erdman’s subjective

beliefs about company policy are irrelevant. The issue is not

what Erdman thought, but what Nationwide communicated to

her, and whether the company “acquiesced in [] the off-theclock work.” The record is equivocal on this point, however.
11

A reasonable jury could find that Nationwide intended to

categorically prohibit all work outside of the office, in which

case Nationwide could not be charged with constructive

knowledge that Erdman continued to work outside the office.

See Davis v. Food Lion, 792 F.2d 1274, 1277 (4th Cir. 1986)

(holding that employer did not have constructive knowledge of

“secret” off-the-clock hours worked after repeated instructions

not to do so). Nevertheless, a reasonable jury could also find

that Nationwide intended to preclude Erdman from earning

overtime, while allowing her to continue to accrue “comp” time.

Nor does the fact that Getgen replaced Sarno as Erdman’s

supervisor carry the day for Nationwide. First, the January 2003

meeting could show that Getgen had personal knowledge of

Erdman’s “comp” time practices after that point. Second, as

previously discussed, Getgen’s stated concerns about Erdman’s

hours are susceptible to an interpretation that is entirely

consistent with the approval of “comp” time. Finally, even

though Getgen may have lacked personal knowledge of

Erdman’s previous use of “comp” time under Sarno, that has no

bearing on the knowledge imputed to Nationwide. It is

undisputed that Sarno allowed Erdman to accrue and use

“comp” time for many years. It is equally clear that in early

2002, Nationwide prohibited Erdman from working overtime for

pay. What remains unclear, when we consider the record in the

light most favorable to Erdman, is whether Nationwide required

her to cease and desist her longstanding practice of accruing and

using “comp” time.

Finally, we must address a policy concern raised by

Nationwide. Erdman argues that her above-average
12

productivity, coupled with the company’s aggressive

performance goals, evidence Nationwide’s constructive

knowledge of her extra hours. Nationwide objects that drawing

such an inference would effectively impute constructive

knowledge of undocumented hours whenever an employer

“established aggressive productivity standards or encountered a

particularly good employee.”

It is conceivable that stellar productivity may be

probative of an employer’s constructive knowledge of extra

work hours in rare cases, but in this case the argument is

foreclosed by Erdman’s reliance on “comp” time. Because

every hour of “comp” time is effectively exchanged for an hour

of paid vacation at some point in the future, Erdman could work

no more than her scheduled hours in the long run. Therefore,

Erdman’s productivity cannot reflect constructive notice of extra

hours on Nationwide’s part.

In sum, when read in the light most favorable to Erdman,

the record indicates that a reasonable jury could conclude that

Nationwide had constructive notice of hours that Erdman

worked from home until February 10, 2003, when Erdman

concedes that Getgen finally addressed the issue and prohibited

her from accruing and using “comp” time. Counting all of the

hours that Erdman worked at home prior to that date, the record

indicates that Erdman accumulated 1,282.25 total hours in the

year before her requested leave was scheduled to begin.

Therefore, Erdman was eligible for FMLA leave for purposes of

summary judgment.
13

B.

Having determined that Erdman is an eligible employee

for purposes of summary judgment, we shall address two

alternative arguments because they will affect the District

Court’s instructions to the jury.

1. Can Erdman Claim “Remedial Eligibility”?

Erdman argues that 29 C.F.R. § 825.110(d) renders her

eligible for FMLA leave

regardless of how many hours she worked because Nationwide

failed to notify her of her eligibility. The version of

§ 825.110(d) in effect at the time of Erdman’s dismissal stated:

“[i]f the employer fails to advise the employee whether the

employee is eligible prior to the date the requested leave is to

commence, the employee will be deemed eligible.”

In spite of the plain language of § 825.110(d), the District

Court rejected Erdman’s argument, citing decisions from courts

of appeals that have invalidated the regulation as expanding

FMLA eligibility beyond the statutory language. See, e.g.,

Brungart v. Bell South Telecomms., Inc., 231 F.3d 791 (11th Cir.

2000); Dormeyer v. Commerica Bank, 223 F.3d 579 (7th Cir.

2000). Erdman cites no authority to support a contrary

conclusion, but she urges us to disagree with our sister circuits

and uphold the regulation.

We find persuasive the Seventh Circuit’s analysis of this

question in Dormeyer:
14

Although the Department of Labor has, like other

administrative agencies, the authority to issue

regulations to carry out the duties that Congress

has assigned to it in [the FMLA], it has no

authority to change the Act. But that is what the

regulation tries to do. It does not address an

interpretive issue that the statute leaves open, and

so the principle of the Chevron case is not in play.

The statutory text is perfectly clear and covers the

issue. The right of family leave is conferred only

on employees who have worked at least 1,250

hours in the previous 12 months. Yet under the

regulation a worker who had worked 8 hours

before seeking family leave would be entitled to

family leave if the employer neglected to inform

the employee promptly that he or she was

ineligible. And this regardless of whether the

employee had incurred any detriment as a result

of the employer’s silence.

223 F.3d at 796 (internal citations omitted).

For the reasons stated in Dormeyer, we hold that the

version of § 825.110 in effect at the time of Erdman’s dismissal

was invalid. By requiring one to work at least 1,250 hours in the

previous twelve months, Congress has defined those who are

entitled to FMLA leave. The remedial eligibility provision of

§ 825.110(d) purported to give otherwise non-eligible

employees a cause of action for an employer’s failure to respond

to an application for FMLA leave in contravention of the statute.

Our conclusion is consistent with the recent amendment

to § 825.110, which removed the remedial eligibility provision

in light of the Supreme Court’s pronouncement that a remedial

eligibility provision in 29 C.F.R. § 825.700 was invalid for
 Erdman also argues that eligibility is not required for 2

FMLA retaliation claims. She takes this position “based upon

the expansiveness of the law against retaliation set forth in

Burlington Northern and Santa Fe R.R. v. White, 548 U.S. 53

(2006),” a Title VII case that made no mention of the FMLA.

But Erdman conceded that eligibility is required for both

interference and retaliation claims while opposing summary

judgment. She claims the right to raise the issue now not

because of procedural inequity in the proceedings below or

because of a change in the law, but rather because of “further

reading” while preparing this appeal. We need not address this

issue because Erdman has waived it. See Delaware Nation v.

Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006).

.

15

similar reasons. See Ragsdale v. Wolverine World Wide, Inc.,

535 U.S. 81, 96 (2002) (“[Section] 825.700(a) effects an

impermissible alteration of the statutory framework and cannot

be within the Secretary’s power to issue regulations ‘necessary

to carry out’ the Act.”); 73 Fed. Reg. 67,394, 67,942 (Nov. 17,

2008) (“The final rule [] adopts the proposed changes in

paragraphs (c) and (d), deleting the ‘deeming’ provisions. In

light of the Supreme Court’s decision in Ragsdale, the

Department believes that it does not have regulatory authority to

deem employees eligible for FMLA leave who do not meet the

12-month/1,250-hour requirements, even where the employer

fails to provide the required eligibility notices.”). Accordingly,

Erdman cannot assert FMLA eligibility under § 825.110(d); she

can only be deemed eligible if the jury finds that she worked the

requisite number of hours. 2
16

2. Must An Employee Take FMLA Leave To Prove A

Retaliation Claim?

Nationwide argues that if Erdman is eligible for FMLA

leave, she cannot recover on a retaliation theory because she did

not actually take leave.

We begin by noting that it would be patently absurd if an

employer who wished to punish an employee for taking FMLA

leave could avoid liability simply by firing the employee before

the leave begins. But the question is not whether an employer

may escape liability altogether; the question is whether such

action constitutes interference with the employee’s FMLA

rights, retaliation against the employee, or both.

Three provisions collectively form the basis of liability

under FMLA. Two subsections of 29 U.S.C. § 2615(a), entitled

“Interference with [FMLA] rights,” state:

(1) Exercise of rights

It shall be unlawful for any employer to interfere

with, restrain, or deny the exercise of or the

attempt to exercise, any right provided under this

subchapter.

(2) Discrimination 

It shall be unlawful for any employer to discharge

or in any other manner discriminate against any

individual for opposing any practice made

unlawful by this subchapter. 
17

In addition, 29 C.F.R. § 825.220(c) prohibits employers from

“discriminating against employees or prospective employees

who have used FMLA leave.” (emphasis added).

The District Court noted that “FMLA interference claims

are derived from 29 U.S.C. § 2615(a)(1),” and that “[t]o succeed

on an interference claim, a plaintiff must demonstrate that he or

she was entitled to and denied some benefit under the FMLA.”

Erdman v. Nationwide Ins. Co., 510 F. Supp. 2d 363, 370 n.4

(M.D. Pa. 2007). Retaliation claims, the District Court stated,

“arise under 29 U.S.C. § 2615(a)(2).” Id. at 370 n.5. “To assert

a retaliation claim, a plaintiff must demonstrate that: (1) he or

she is protected under the FMLA, (2) he or she suffered an

adverse employment action, and (3) the adverse action was

causally related to the plaintiff’s exercise of his or her FMLA

rights.” Id. (citing Conoshenti v. Pub. Serv. Elec. & Gas Co.,

364 F.3d 135, 146 (3d Cir. 2004)). Under the District Court’s

statement of the law, Erdman’s retaliation claim is valid because

commencing leave is not a prerequisite.

Nevertheless, Nationwide astutely observes that the

elements stated by the District Court differ slightly from our

pronouncement in Conoshenti. In that case, we said that the first

requirement of a retaliation claim is that “[an employee] took an

FMLA leave,” Conoshenti, 364 F.3d at 146, not that she “be

protected under the FMLA,” Erdman, 510 F. Supp. 2d at 370

n.4. We noted that “[t]he circuits have taken divergent paths in

analyzing claims that an employee has been discharged in

retaliation for having taken an FMLA leave,” with some circuits

finding that such claims arise under § 2615(a)(2) and others

holding that §§ 2615(a)(1), 2615(a)(2), and 29 C.F.R.

§ 825.220(c) all give rise to retaliation claims. Conoshenti, 364

F.3d at 147 n.9 (emphasis added). We concluded that the Ninth
 Soon after Conoshenti was decided, the First Circuit 3

agreed that FMLA retaliation claims must arise under

§ 825.220(c). Colburn v. Parker Hannifin/Nichols Portland

Division, 429 F.3d 325, 331 (1st Cir. 2005) (citing Conoshenti).

The First Circuit has noted that retaliation and 4 

interference theories might overlap in some circumstances.

Colburn, 429 F.3d at 331 (“[C]ourts have disagreed about

whether ‘interference’ refers to a category of claims separate

and distinct from those involving retaliation, or whether it

describes a group of unlawful actions, of which retaliation is a

part. The term ‘interference’ may, depending on the facts, cover

both retaliation claims and non-retaliation claims. The

distinction would matter if the standards of proof used turned on

which statutory section were pled, rather than on the nature of

the facts and the theory of the case.”) (citing, inter alia,

Conoshenti).

18

Circuit appropriately “predicated liability in such situations on

§ 825.220(c),” instead of §§ 2615(a)(1) or (a)(2). Id.3

Nationwide argues that because the regulation protects

“employees who have used FMLA leave,” § 825.220(c), and

because Conoshenti held that “to be successful on this claim, [an

employee] must show [] that he took an FMLA leave,” 364 F.3d

at 146, an employee cannot establish a retaliation claim unless

she actually commenced leave. Although Conoshenti’s

language supports Nationwide’s argument, it is not clear

whether firing an employee for requesting FMLA leave should

be classified as interference with the employee’s FMLA rights,

retaliation against the employee for exercising those rights, or

both. Significantly, Conoshenti did not involve an employee, 4

like Erdman, who requested FMLA leave but was fired before

the leave was scheduled to begin.
As for her retaliation claim, Erdman argues that the law 5

of the case doctrine prohibits Nationwide from disputing the

protected activity element of her FMLA claim because it is

identical to the protected activity element of her PHRA claim,

which the District Court allowed to proceed under a retaliation

theory. Erdman, 510 F. Supp. 2d at 374-75. We express no

opinion on this argument so the District Court may consider the

19

Nationwide has cited only one case to support its broad

reading of Conoshenti. See Reid-Falcone v. Luzerne County

Cmty. Coll., No. 3:CV-02-1818, 2005 U.S. Dist. LEXIS 12713

(M.D. Pa. Jun. 28, 2005). But contrary to Nationwide’s

interpretation, Reid-Falcone does not stand for the proposition

that an employee must actually commence leave to state a

retaliation claim. Rather, Reid-Falcone held that an employee

fired after requesting maternity leave — as opposed to FMLA

leave — could not state an FMLA claim based on retaliation

because she had “fail[ed] to invoke the protections of FMLA.”

Id. at *26. The fact that her leave had not commenced was

irrelevant to the Court’s decision. Indeed, Reid-Falcone

indicates that the critical issue is invocation of FMLA rights,

which contradicts Nationwide’s reading of Conoshenti.

Simply put, this Court has never held that an employee

fired after requesting FMLA leave but before the leave begins

cannot recover for retaliation, and Nationwide cites none of our

precedents other than Conoshenti to support this proposition.

Reading Conoshenti as Nationwide urges would perversely

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

recovery by preemptively firing her. Accordingly, we interpret

the requirement that an employee “take” FMLA leave to

connote invocation of FMLA rights, not actual commencement

of leave. We therefore hold that firing 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. 5
issue upon remand.

20

IV.

Finally, we consider the District Court’s summary

judgment for Nationwide on Erdman’s ADA claim. Erdman

concedes that she cannot directly invoke ADA protection

because she is not disabled. Rather, she relies on the ADA’s

association provision, which prohibits

excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the

known disability of an individual with whom the

qualified individual is known to have a

relationship or association.

42 U.S.C. § 12112(b)(4).

We first note that the association provision does not

obligate employers to accommodate the schedule of an

employee with a disabled relative. Although refusal to “mak[e]

reasonable accommodations” may constitute illegal

discrimination against a disabled employee, 42 U.S.C.

§ 12112(b)(5), the plain language of the ADA indicates that the

accommodation requirement does not extend to relatives of the

disabled. See 29 C.F.R. § 1630.8, Appendix (“It should be

noted [] that an employer need not provide the applicant or

employee without a disability with a reasonable accommodation

because that duty only applies to qualified applicants or

employees with disabilities.”). See also Den Hartog v. Wasatch

Academy, 129 F.3d 1076, 1084 (10th Cir. 1997) (“[T]he plain

language of [§§ 12112(b)(5)(A) and (B)] — the only two

provisions requiring ‘reasonable accommodation’ in Title I of

the ADA — suggests that only job applicants or employees, but

not their relatives or associates, need be reasonably

accommodated.”); Larimer v. IBM, 370 F.3d 698, 700 (7th Cir.
Of course, Nationwide may be liable under FMLA for 6

firing Erdman because of her request for time off. 

21

2005) (“[T]he right to an accommodation, being limited to

disabled employees, does not extend to a nondisabled associate

of a disabled person.”) (citing Den Hartog). 

The question is therefore whether Erdman has adduced

sufficient evidence from which a reasonable jury could infer that

Nationwide terminated her because of her daughter Amber’s

disability. Under the association provision, there is a material

distinction between firing an employee because of a relative’s

disability and firing an employee because of the need to take

time off to care for the relative. The statute clearly refers to

adverse employment actions motivated by “the known disability

of an individual” with whom an employee associates, as

opposed to actions occasioned by the association. Therefore,

Erdman must show that Nationwide was motivated by Amber’s

disability rather than by Erdman’s stated intention to miss work;

in other words, that she would not have been fired if she had

requested time off for a different reason. See Den Hartog, 129 6

F.3d at 1085 (requiring association provision plaintiffs to show

that an “adverse employment action occurred under

circumstances raising a reasonable inference that the disability

of the relative or associate was a determining factor in the

employer’s decision”); id. at 1083 (recognizing that dismissal

for absence or tardiness is not actionable “even if the reason for

the absence or tardiness is to care for [a disabled relative]”)

(quoting H.R. Rep. No. 101-485, pt. 2, at 61-62 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 344).

Other courts have surmised that an employee would be

protected by the association provision if she were fired because

her employer feared that she might miss work to care for a

disabled relative even though she had not taken or requested

time off. See Oliveras-Sifre v. Puerto Rico Dep’t of Health, 214
22

F.3d 23, 26 (1st Cir. 2000) (“[The association provision

prohibits termination] based on ‘unfounded stereotypes and

assumptions’ arising from the employee’s relationships with

particular disabled persons.”) (quoting Barker v. Int’l Paper

Co., 993 F. Supp. 10, 15 (D. Me. 1998)); Tyndall v. Nat’l Educ.

Centers, 31 F.3d 209, 214 (4th Cir. 1994) (noting that

termination “based on any assumption regarding future absences

related to [a relative’s] care” gives rise to liability, but that

termination “result[ing] from [an employee’s] record of past

absences and [her] clear indication that she needed additional

time off” does not). We agree with this view, which comports

with the language of the statute, because a decision motivated by

unfounded stereotypes or assumptions about the need to care for

a disabled person may be fairly construed as “because of the . . .

disability” itself. § 12112(b)(4). See 29 C.F.R. § 1630.8,

Appendix (noting that the association provision prohibits an

employer from, inter alia, refusing to hire a job applicant

because of the employer’s unfounded belief “that the applicant

would have to miss work or frequently leave work early in order

to care for [a disabled] spouse”).

In this case, the record is devoid of evidence indicating

that Nationwide’s decision to fire Erdman was motivated by

Amber’s disability. Indeed, Nationwide was aware of Amber’s

disability for many years before Erdman was fired. The most

Erdman can hope to show is that she was fired for requesting

time off to care for Amber (the basis for her FMLA claim), not

because of unfounded stereotypes or assumptions on

Nationwide’s part about care required by disabled persons.

Erdman argues that Strate v. Midwest Bankcentre, Inc.,

398 F.3d 1011 (8th Cir. 2005) supports her claim, but her

reliance on that decision is misplaced. Strate held that an

exemplary employee who was fired while on maternity leave to

care for her disabled newborn could state an ADA claim on an
 We note that a plaintiff may prevail under the 7

association provision in other circumstances not at issue in this

case. For example, the Seventh Circuit requires an association

provision plaintiff to show “that his case falls in one of the three

categories in which an employer has a motive to discriminate

against a nondisabled employee who is merely associated with

a disabled person.” Larimer, 370 F.3d at 702. Larimer

described these categories as: (1) termination based on a

disabled relative’s perceived health care costs to the company;

(2) termination based on fear of an employee contracting or

spreading a relative’s disease; and (3) termination because an

employee is somewhat distracted by a relative’s disability, yet

not so distracted that he requires accommodations to

satisfactorily perform the functions of his job. Id. at 700. See

23

association theory. Erdman’s case differs from Strate in crucial

respects. In the first place, Strate’s employer was overheard

implying that her newborn’s disability was a factor justifying

termination. Id. at 1014. Second, Strate relied heavily on the

“close temporal connection” between the employer’s discovery

of the child’s disability and Strate’s termination, id. at 1019,

whereas Nationwide was aware of Amber’s disability for years

before Erdman’s termination. Third, and most significantly, the

employer’s motivations in Strate amounted to unfounded

assumptions about the need to care for a disabled child because

although the employer knew about the disability, it had no

reason to suspect that Strate would need additional time off

beyond her originally scheduled maternity leave. The same is

not true here, where Erdman was fired only after announcing her

intention to take leave to care for Amber. Accordingly, Strate

does not support Erdman’s argument.

Because no reasonable jury could conclude that Erdman

was fired “because of [Amber’s] known disability,”

§ 12112(b)(4), we will affirm the District Court’s grant of

summary judgment on Erdman’s ADA claim.7
also 29 C.F.R. § 1630.8, Appendix (noting that the association

provision prohibits an employer from firing an employee

because of a fear that his volunteer work with AIDS sufferers

may cause the employee to contract the disease himself, or from

reducing an employee’s health benefits because of a disabled

relative). Erdman asserts none of these theories. 

24

V.

For the foregoing reasons, we will affirm the District

Court’s summary judgment on Erdman’s ADA claim, but will

vacate the summary judgment on Erdman’s FMLA claim, and

remand the case for further proceedings consistent with this

opinion.