IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PATRICIA A. DOGMANITS :

 Plaintiff, :

:

 v. : CIVIL ACTION

: No. 04-CV-290

CAPITAL BLUE CROSS :

Defendant. :

MEMORANDUM AND ORDER

JOYNER, J. July 7, 2005

Via the motion now pending before this Court, Defendant

Capital Blue Cross moves for summary judgment on both Counts of

the plaintiff’s Complaint. For the reasons outlined below, the

motion shall be GRANTED.

Factual Background

Plaintiff Patricia Dogmanits brings suit against Defendant

Capital Blue Cross (CBC) for violation of the Americans with

Disabilities Act, 42 U.S.C. §12101, et seq., (Count I) and

violation of the prescriptive and proscriptive provisions of the

Family and Medical Leave Act, 29 U.S.C. §2611, et seq. (Count

II). 

 Plaintiff was employed by Defendant from November 1978

until her termination on November 29, 2001. (Second Amend. Compl.

¶¶ 3, 18). Throughout the course of her employment, Plaintiff

held various positions, the latest of which was Supervisor of

Sales Control. (Dogmanits, depo. 21). In 1999, as the result of

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a company relocation, Plaintiff’s round trip work commute grew to

approximately 200 miles. (Dogmanits, depo. 32).

On May 31, 2001, Plaintiff became ill, was admitted to the

hospital for an emergency appendectomy and was diagnosed with

colon cancer. (Second Amend. Compl. ¶¶ 5-7). Plaintiff

subsequently underwent chemotherapy treatment from July 2001

through November 2001. (Dogmanits, depo. 47). The chemotherapy

caused side effects such as vomiting, diarrhea, tiredness, lack

of concentration, forgetfulness, numbness in extremities, and

sensitivity to temperature. (Dogmanits, depo. 46). Because of

her forgetfulness and lack of concentration, Plaintiff had some

difficulty driving. (Dogmanits, depo. 46-47). 

As a result of her illness, Plaintiff applied and was

approved for FMLA leave beginning May 31, 2001. (Second Amend.

Compl. ¶ 10). Plaintiff acknowledges that she was able to use all

of her available FMLA leave, which she exhausted in July 19,

2001. (Dogmanits, Depo. 55; Second Amend. Compl. ¶10). In a

letter sent shortly thereafter, Defendant notified Plaintiff that

her former job would no longer be held open. (Second Amend.

Compl. ¶11). 

Generally, Defendant’s policies indicate that employees are

allowed up to 26 weeks of medical leave, 12 of which are provided

under the FMLA. (Exhibit 8, p.3). During FMLA leave, employees

are guaranteed to return to their pre-leave position. (Exhibit 8,

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p.3). After exhausting FMLA leave, employees may be eligible for

additional non-FMLA leave; however, they are no longer guaranteed

to return to their pre-leave positions. (Exhibit 8, p. 3). The

total amount of combined leave provided by Defendant’s policies

is six months. (Exhibit 8, p.3). Employees who cannot return

after six months are terminated. (Exhibit 10, p.7) 

While on leave, employees can receive pay benefits from

short term disability (STD) or long term disability (LTD). To be

eligible for STD benefits, employees must first use four days

worth of time from their paid-time-off (PTO) accounts and then

exhaust any accrued disability hours. (Exhibit 8, p.6; Exhibit

11, p.1) Employees who do not qualify for STD may still be

eligible for LTD benefits, which begin on the first day of the

sixth month following the injury. (Exhibit 10, p.2). As of May

31, 2001, Plaintiff had accumulated 269.66 hours of PTO and

927.25 hours of disability. (Second Amend. Compl. ¶¶ 16, 17).

Around October 2, 2001 Plaintiff received a letter from

Kieran R. Hull, Manager of Employee Benefits. (Dogmanits, depo.

59-60). The letter stated that by November 26, 2001 Plaintiff

would have only 18.75 hours of her 26 weeks of leave remaining

and that her case had been submitted for consideration by

Defendant’s LTD carrier. (Exhibit 13, p.1). Pursuant to the

letter and a conversation that took place on November 2, 2001,

Plaintiff applied for LTD on November 4, 2001 (Exhibit 16;

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Dogmanits, depo. 68, 73). Plaintiff was approved for LTD benefits

for the period running from November 1, 2001 to Jan 31, 2002.

(Dogmanits, depo. 72-73). 

In telephone conversations during October and November 2001,

Hull and Garland attempted to help Plaintiff avoid termination by

discussing options which would allow her to end full-time leave

by returning to work in a part-time capacity. (Dogmanits, depo.

69-70; Garland, depo. 33-34). Plaintiff had been offered a

position consisting of a few hours of reading per day, which

could be performed at home. (Garland, depo. 33-35). Plaintiff

informed Hull and Garland that she was unsure if her doctor would

permit her to return to work in any capacity. (Dogmanits, depo.

69-70; Garland, depo. 33-34).

On November 27, 2001, Hull sent Plaintiff another letter,

which referred to three previous conversations in which Plaintiff

was told that she would have to return to work in some capacity

by November 29, 2001 in order to avoid termination. (Exhibit 14;

Dogmanits, depo. 69-71). Hull reiterated that the part-time,

work-at-home arrangement they had previously contemplated was

still open to Plaintiff, if she was medically cleared to return

to work. (Exhibit 14; Dogmanits, depo. 69-71). The letter also

indicated that, in the event of termination, Defendant would make

the same part-time job available for Plaintiff should she choose

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to re-apply after receiving a medical release to work. (Exhibit

14, p.3). 

As of November 29, 2001, Plaintiff’s doctor did not clear

her to return to work in any capacity, including the part-time,

work at home arrangements offered by Defendant. (Dogmantis,

depo. 71; Garland, depo. 35). On November 29, 2001, Plaintiff

exhausted her 26 weeks of available leave and was terminated from

CBC. (Second Amend. Compl. ¶18). November 29, 2001 was also the

date of Plaintiff’s final chemotherapy treatment. (Dogmanits,

depo. 64-65). At the conclusion of her chemotherapy treatments,

Plaintiff felt a few lingering side effects which eventually

receded. (Dogmanits, depo. 82). At the time of her termination,

Plaintiff’s doctor had not yet provided a definite return to work

date. (Dogmantis, depo. 71). 

After her termination, Plaintiff’s LTD benefits continued

until she received a medical release to return to work around

January 23, 2002. (Second Amended Complaint ¶24; Dogmanits, depo.

56). Plaintiff’s medical clearance to work was not subject to

any ongoing restrictions due to her illness or any side effects

of her chemotherapy. (Dogmanits, depo. 82). Since January 2002,

Plaintiff has not suffered any relapse of her cancer, nor has she

been impaired in working or other life activities because of her

prior illness. (Dogmanits, depo. 82-83).

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In December 2001 and January 2002, Plaintiff and her

supervisor, Deb Garland, began discussing Plaintiff’s

reemployment possibilities at CBC. (Dogmanits, depo. 101). To

help facilitate Plaintiff’s return to CBC, Ms. Garland obtained

management approval to create a new, unbudgeted Technical Analyst

position for Plaintiff. (Dogmanits, depo. 90-91; Garland, depo.

37-39; Hull, depo. 73). Plaintiff asserts that during her

conversations with Garland, she was led to believe that she would

be able to work from home several days each week and that her

salary would be around $40,000. (Dogmanits, depo. 94, 101). Thus,

Plaintiff applied for reemployment with CBC. (Second Amended

Complaint ¶25). 

After Plaintiff completed her application for reemployment,

Employee Relations Specialist Meri Richardson sent Plaintiff a

letter dated February 7, 2002 notifying Plaintiff that she was

accepted for a position as a Technical Analyst. (Exhibit 22). 

Although the letter indicated a starting salary of $36,400, it 

did not mention whether Plaintiff would be able to work from

home. (Exhibit 22).

 Plaintiff asserts that she denied Defendant’s offer because

it did not mention accommodations for working at home, it did not

provide future STD benefits for her condition, and it was $4,000

lower than her previous offer and around $14,000 lower than her

pre-leave position. (Dogmanits, depo. 93, 94, 111-112). Defendant

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contends that Richardson’s letter was merely congratulatory, and

that further arrangements for working at home had yet to be

determined. (Richardson, depo. 18-19). Further, Defendant argues

that the Plaintiff knew that the $40,000 salary she discussed was

subject to approval. (Def. Br., p. 5).

Legal Standard for Summary Judgment

The purpose of summary judgment under Federal Rule of Civil

Procedure 56(c) is to avoid unnecessary trials that would only

cause delay and expense. Goodman v. Mead Johnson & Co., 534 F.2d

566, 574 (3rd Cir. 1976). A court may properly grant a motion

for summary judgment only where the evidence before it presents

no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-32 (1986). A genuine

issue of material fact exists where “a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

In deciding a motion for summary judgment, all facts

must be viewed and all reasonable inferences must be drawn in

favor of the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the party

opposing the motion may not rest upon the bare allegations of the

pleadings, but must set forth “specific facts” showing that there

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Plaintiff’s memorandum of law in opposition to Defendant’s motion for

summary judgment contains claims that do not appear in the Second Amended

Complaint. Because these claims were not properly pleaded in Plaintiff’s

latest version of the complaint, these issues are not before this Court. 

Specifically, these late-arriving claims are: 

(1) Defendant discriminated against her based on her disability while

attempting to rehire her for permanent employment once she was medically

cleared to return to full-time work. Pl.’s Memo. Opposition Def.’s Mot. S.J.

20 (May 13, 2005);

(2) That “one of the Defendant’s motivating reasons for the

investigation of a very small group of older employees may have been to rid

itself of older workers.” Id. at 11. This vestige of an age discrimination

claim is clearly not part of the present action. 

8

is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex,

477 U.S. at 324.

Discussion

Count I: Violation of the Americans With Disabilities Act

Plaintiff Patricia Dogmanits claims that she was unlawfully

terminated by Defendant CBC as a result of her disability

resulting from colon cancer. (Pl.’s Second Amend. Compl. ¶44).1

The Americans with Disabilities Act [ADA] prohibits employers

from discriminating against any qualified individual with a

disability on the basis of their disability. 42 U.S.C. §

12112(a) (1995). In order to make out a prima facie case of

discrimination under the ADA, Plaintiff must prove that she: (1)

is “disabled,” (2) is a “qualified individual,” (3) has suffered

an adverse employment action because of that disability. Buskirk

v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2001).

Viewed as a stand-alone act, termination qualifies as

an “adverse employment action” even under the most stringent of

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definitions. The viability of Count I of Plaintiff’s claim,

however, depends on establishing the first and second elements of

a discrimination case. 

1. Plaintiff as “Disabled” Under the ADA

The ADA defines “disability” as:

“(A) a physical or mental impairment that substantially 

limits one or more of the major life activities of such 

individual;

(B) a record of such impairment; or

(C) being regarded as having such an impairment.” 

42 U.S.C. § 12102(2).

To qualify as “disabled” under the ADA, a claimant must

establish that he or she has a physical or mental impairment that

substantially limits major life activities. Toyota Motor Mfg.,

Inc. v. Williams, 534 U.S. 184, 195 (2002). EEOC regulations

created for interpreting the ADA define “substantially limit” as

“[u]nable to perform a major life activity that the average

person in the general population can perform”; or

“[s]ignificantly restricted as to the condition, manner, or

duration under which the average person in the general population

can perform that same major life activity.” Id. at 195-196

(quoting 29 C.F.R. § 1630.2(j)). The nature and severity of the

impairment, the duration or expected duration of the impairment,

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and the actual or expected permanent or long-term impact of the

impairment should also be considered. Id. at 196 (quoting 29

C.F.R. § 1630.2(j)(2)(i)-(iii)). 

There is little question that the life-threatening,

debilitating effects of cancer and its subsequent treatment can

qualify as an “impairment” under the ADA. However, the

determination of whether an individual is “disabled” is not based

solely on a name or the stereotypical nature and character of an

impairment, but rather on the “effect of that impairment on the

life of the individual.” Id. at 198. Congress intended that

each determination be made on a case-by-case basis. Sutton v.

United Air Lines, Inc., 527 U.S. 471, 483 (1999). In Toyota, the

Supreme Court narrowly construed the definition of “disability”

by establishing that the impact of an impairment must be

“permanent or long-term.” Id. at 198. The Third Circuit also

held that temporary, non-chronic impairments of a short duration

with little to no long-term impact do not qualify as disabilities

under the ADA. Williams v. Phila. Hous. Auth. Police Dept., 380

F.3d 751, 765 (3d Cir. 2004).

After being diagnosed with colon cancer, Plaintiff underwent

chemotherapy, which was accompanied by side effects such as

vomiting, diarrhea, tiredness, an inability to concentrate,

forgetfulness, and sensitivity to temperature. Plaintiff’s

doctor found that these symptoms made her medically unfit for

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employment in any capacity from May 2001 until January 2002. 

Upon receiving medical clearance to return to work, Plaintiff

continued to feel minor side effects from the final round of

chemotherapy. There were no additional diagnoses of cancer,

however, and Plaintiff was not subject to any physical or medical

restrictions at work.

The question of whether an impairment similar to the instant

case caused by cancer is sufficiently “permanent or long-term” to

qualify as a “disability” under the ADA has yet to be answered by

this Court or the Third Circuit Court of Appeals. Because this

Court concludes that Plaintiff fails to make out a prima facie

case under the ADA on other grounds, the difficult issue of

cancer’s designation as a “disability” will be reserved for

another day.

2. Plaintiff Was Not “Regarded As” Disabled by Defendant

Although it is, at best, unclear from the Second Amended

Complaint whether Plaintiff actually claims she was “regarded as”

disabled by Defendant, this Court will err on the side of caution

and address the issue on its merits.

Pursuant to the ADA, a person is “regarded as” disabled if

he or she:

“(1) Has a physical or mental impairment that does not 

substantially limit major life activities but is treated by 

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the [employer] as constituting such limitation;

(2) Has [such impairment] only as a result of the attitudes 

of others toward such impairment; or

(3) Has [no such impairment] but is treated by an [employer] 

as having a substantially limiting impairment.” 

Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002)

(quoting 29 C.F.R. § 1630.2(1)). An employee is “regarded as”

disabled if an employer misinterprets information about an

employee’s limitations and precludes the employee from performing

a wide range of jobs. Id. An employer is also liable for

discrimination if it wrongfully regarded an employee as so

disabled he or she was unable to perform any kind of work and, as

a result, denied him or her a job. Williams, 751 F.3d at 769.

There is simply no evidence in the instant case to support

Plaintiff’s claim that Defendant terminated her employment at CBC

as a result of mistakenly identifying her as “disabled.” On the

contrary, prior to exceeding the company’s maximum allowable

leave time, the record indicates that Plaintiff and her doctor

maintained sole control over her ability and timing for resuming

employment at CBC. Plaintiff voluntarily sought a medical leave

of absence, available to all CBC employees under the company’s

benefits policy, to recover from a bout with colon cancer. Just

prior to her termination, Plaintiff informed Defendant that her

doctor deemed her medically unfit for work in any capacity, even

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a part-time, work-at-home role offered by Defendant. Plaintiff

also told Defendant that her doctor could not supply any

timetable for her return to either full-time or part-time

employment duties at CBC. 

Defendant adhered to established company policy and

procedure by granting Plaintiff leave time, disability benefits,

and, when she exhausted the maximum allowable leave time,

terminating her employment. Plaintiff received the same

treatment and benefits available to all CBC employees, whether

they were on a leave of absence due to cancer, a back injury, or

mental illness. Plaintiff fails to prove that her termination

resulted from Defendant’s wrongful perception of her disability. 

The record reflects, rather, that Plaintiff informed Defendant

that she was unable to return to work in any capacity because of

her medical condition, and was terminated only after she

exhausted the maximum amount of leave time available to her, and

any other CBC employee, under CBC’s uniformly-applied benefits

and leave policy.

Even if viewed in a light most favorable to Plaintiff, the

evidence before this Court could not persuade any reasonable jury

to conclude that Plaintiff was “regarded as” disabled within the

definition of the ADA. This Court finds that Plaintiff’s

“regarded as” disabled claim fails as a matter of law. 

 

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3. Plaintiff Was Not a “Qualified Individual” Under the ADA

Even assuming Plaintiff did qualify as “disabled,” either by

the substantially limiting nature of her impairment or being

“regarded as” disabled by Defendant, Plaintiff’s claim would

still fail because she does not establish that she is a

“qualified individual” within the meaning of the ADA. At the

time Plaintiff’s employment was terminated, the evidence

demonstrates that she was unable to perform the essential tasks

of her job, even with the assistance of reasonable

accommodations. Thus, Plaintiff does not make out a prime facie

case for discrimination under the ADA, and Defendant’s Motion for

Summary Judgment must be granted.

The ADA defines a “qualified individual” as “an individual

with a disability who, with or without reasonable accommodation,

can perform the essential functions of the employment position

that such individual holds or desires.” 42 U.S.C. § 12111(8). 

Determining whether someone is a qualified individual is a

two-part inquiry. First, a plaintiff must demonstrate that he or

she possesses the skill, experience, or education necessary to

adequately perform the job. Skerski v. Time Warner Cable Co.,

257 F.3d 273, 278 (3d Cir. 2001). Next, a plaintiff must

establish that he or she can perform the essential functions of

the position, with or without reasonable accommodation. Id.

“This determination is to be made at the time of the employment

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decision.” White v. Stroh Brewery Co., 15 F. Supp. 2d 734, 737

(E.D. Pa. 1998) (citing Gaul v. Lucent Technologies, Inc., 134

F.3d 576, 580 (3d Cir. 1998), where the court followed EEOC

regulations for implementing the ADA, 29 C.F.R. § 1630 App. at

353-354).

Upon learning of an employee’s disability, an employer has a

duty to engage in a good faith interactive process with the

employee to seek reasonable accommodations. Williams, 380 F.3d

at 761. Reasonable accommodations can include job restructuring,

or part-time or modified work schedules. 42 U.S.C. § 12111(9)(B). 

In some circumstances, a leaves of absence for medical treatment

can also be considered as a reasonable accommodation. Shannon v.

City of Phila., 1999 U.S. Dist. LEXIS 18089 at *20-23 (E.D. Pa.

Nov. 23, 1999) (citing cases from the First, Sixth, and Tenth

Circuits as well as EEOC guidelines for interpreting the ADA, 29

C.F.R. § 1630.2(o) App.).

However, leave time must enable the employee to perform his

or her essential job functions in the near future. Conoshenti v.

Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004). 

The weight of authority in the Third Circuit, as well as other

Circuits, clearly establishes that a leave of absence for an

indefinite duration is not a reasonable accommodation. See e.g.,

Fogleman v. Greater Hazelton Health Alliance, 122 Fed. Appx. 581,

2004 WL 2965392 at *3 (3d Cir. 2004) (holding that an indefinite

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or open-ended leave “does not constitute a reasonable

accommodation”); Peter v. Lincoln Technical Inst., 255 F. Supp.

2d 417, 437 (E.D. Pa. 2002) (citing to Fourth, Fifth, Sixth, and

Tenth Circuits in concluding that “an indefinite leave is

inherently unreasonable”). 

The evidence put forth by Plaintiff is insufficient to

establish that she was a “qualified individual” under the ADA. 

Plaintiff’s 23-year record of employment with CBC demonstrates

that, prior to her illness, she possessed both the skills and

experience required to perform her job. The evidence also

demonstrates, however, that at the time of her termination,

Plaintiff was unable to perform the essential tasks of her

position despite the assistance of reasonable accommodations.

The record in this matter indicates that Defendant engaged

in an interactive process with Plaintiff prior to her

termination. Through multiple letters and telephone

conversations, Kieran Hull, Director of Human Resources, and Deb

Garland, Plaintiff’s supervisor, communicated with Plaintiff

regarding the company’s medical leave policy and Plaintiff’s

benefits status and employment options. Plaintiff was notified

that if she did not return to work in some capacity before

exhausting the maximum 26 weeks of leave time allowed under CBC’s

policy, she would be terminated. 

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In an effort to allow Plaintiff to avoid termination, Hull

and Garland suggested part-time, work-at-home arrangements where

Plaintiff could perform a few hours of reading per day. This

would have allowed Plaintiff to end her full-time leave of

absence before she exhausted the maximum allowable leave time. 

Plaintiff declined these accommodations because her doctor would

not permit her to return to work in any capacity. At the time of

termination, Plaintiff could not offer any definite return date,

so her request for accommodation amounted to a request for an

indefinite leave of absence. 

Plaintiff argues that a leave of absence is a reasonable

accommodation under the ADA and that Defendant was obligated to

extend additional leave beyond the maximum 26 weeks mandated by

company policy. The courts in the cases cited by Plaintiff,

however, have examined requested leaves of a finite timeframe in

the context of employers’ policies and found that leaves of an

indefinite duration are unreasonable. See e.g., Shannon, 1999

U.S. Dist. LEXIS 18089 at *19, 20-21 (examining plaintiff’s leave

request in context of City’s leave policy and stating that an

indefinite leave of an unknown duration is not reasonable);

Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) (stating

that leave provided to a disabled employee should not exceed the

leave available to a non-disabled employee); Rascon v. U.S. West

Commun., Inc., 143 F.3d 1324, 1334 (10th Cir. 1998) (finding

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that, where an employee fails to provide an expected duration of

the leave, indefinite leave is not a reasonable accommodation).

By terminating Plaintiff’s employment only after she had

extinguished 26 full weeks of paid medical leave, Defendant was

merely complying with company policy. Plaintiff failed to show

that Defendant applied this policy unequally, selectively, or in

a discriminatory manner. Requiring Defendant to grant Plaintiff

an indefinite leave of absence, in excess of a consistently

applied company policy, would be an unreasonable accommodation

and unfair to CBC’s other employees. 

Because of her inability to do work of any kind, even with

the assistance of reasonable work-at-home accommodations,

Plaintiff was unable to perform any essential function of her

job. Further, Plaintiff was not able to provide a definite date

when she would be able to resume either a full-time or part-time

work schedule. We find that Defendant’s offers to provide

reasonable accommodations that would conform to company policy

and permit Plaintiff to retain employment fulfilled the company’s

duty to engage in a good faith, interactive process. We conclude

that no reasonable jury could determine from the evidence before

this Court that, at the time of termination, Plaintiff met the

standard of a “qualified individual” under the ADA. Therefore,

we find that Plaintiff fails to make out a prima facie case for

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discrimination under the ADA, and that Defendant’s Motion for

Summary Judgment on Count I must be granted. 

Count II: Prescriptive and Proscriptive Violations of FMLA

The FMLA provides eligible employees with up to 12 work

weeks of medical or family leave during any 12-month period. 29

U.S.C. § 2612(a)(1). To be eligible for leave under the FMLA, an

employee must have been employed "(i) for at least 12 months by

the employer [from] whom leave is requested under section 2612 of

this title; and (ii) for at least 1,250 hours of service with

such employer during the previous 12-month period." 29 U.S.C. §

2611(2)(A).

In this action, Plaintiff claims that Defendant violated the

prescriptive and proscriptive provisions of the FMLA. 

Prescriptive or substantive FMLA rights include an eligible

employee’s ability to obtain leave provided by the FMLA. 

Campetti v. Career Education Corp., No. 02-CV-1349, 2003 U.S.

Dist. LEXIS 12202, at *34 (E.D. Pa. June 25, 2003). Proscriptive

FMLA rights include “protection in the event that an employee is

discriminated against for exercising the prescriptive rights as

set forth in the statute.” Id. at *35. 

Prescriptive Violations of the FMLA

Plaintiff first claims that Defendant terminated her to

prevent her from exercising her rights under the FMLA. (Second

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Amend. Compl. ¶50). Based on the evidence presented, however, no

reasonable jury could determine that the Plaintiff’s FMLA rights

were violated. First, Plaintiff acknowledges that she was able

to use all of her available FMLA leave until it expired on July

19th, 2001. Even after she exhausted her FMLA leave, Plaintiff

was able to take additional non-FMLA leave from July 19, 2001 to

November 28, 2001. Next, Plaintiff fails to indicate

approximately when she would have requalified for FMLA leave had

she not been terminated. Finally, Plaintiff was informed after

her termination that if she were re-hired she would be able to

re-gain FMLA eligibility upon fulfilling the statutory

requirements. Because Plaintiff presents no evidence indicating

that Defendant terminated her to prevent her from exercising FMLA

rights, no reasonable jury could find that Defendant violated

Plaintiff’s prescriptive rights under the FMLA.

Plaintiff also argues that Defendant willfully and

intentionally violated the FMLA by not restoring her to her preleave position. (Second Amend. Comp. ¶51). The FMLA requires that

employees returning from up to 12 weeks of FMLA leave “be

restored by the employer to the position of employment held by

the employee when the leave commenced or to an equivalent

position with equivalent employment benefits, pay, and other

terms and conditions of employment.” 29 U.S.C. §2614(a)(1). 

However, employees who exhaust the twelve weeks of leave provided

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under the FMLA stand to lose their entitlement to job restoration

even if their employers provide additional, non-FMLA, leave.

Frederick v. Brandywine Hosp., Inc., No. 03-3362, U.S. Dist.

LEXIS 12151, at *3 (E.D. Pa. July 1, 2003) (noting that

“[p]rotection under the FMLA is strictly limited to the 12 week

period”); Panto v. Palmer Dialysts Ctr., No. 01-6013, U.S. Dist.

LEXIS 5663, at *20 (E.D. Pa. April 7, 2003) (holding that

employer policies that surpass the requirements of the FMLA are

not protected under the FMLA); 29 C.F.R. §825(b) (stating that

employees who are unable to work because of the continuation of a

serious health condition have no right to job restoration under

the FMLA). 

Here, 29 U.S.C. 2614(a)(1) does not apply because

Plaintiff’s leave exceeded that which would have been protected

under the FMLA. Although Plaintiff was able to take additional,

non-FMLA, leave after exhausting her FMLA leave, Plaintiff’s

entitlement to restoration was only guaranteed for the statutory

12 week period. Because 29 U.S.C. 2614(a)(1) does not apply to

non-FMLA leave, no reasonable jury could find that Plaintiff was

entitled to restoration of pre-leave employment. 

Proscriptive Violations of the FMLA

Next, Plaintiff claims that her proscriptive FMLA rights

were violated because Defendant terminated her in retaliation for

having exercised her right to FMLA leave. (Second Amended

Case 2:04-cv-00290-JCJ Document 20 Filed 07/07/05 Page 21 of 24
22

Complaint, ¶50). To support a claim of retaliation, Plaintiff

must show that (1) she took an FMLA leave, (2) she suffered an

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

causally related to that leave. Conoshenti v. Public Service

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

Plaintiff fails to establish a prima facie case of

retaliation because she has not shown that she suffered an

adverse employment action. In order to show that termination was

adverse, Plaintiff needs to present evidence indicating that she

could have performed her job duties at the time of her

termination. Alifano v. Merck Co., 175 F.Supp.2d 792,795 (E.D. Pa

2001). However, it is undisputed that Plaintiff was not able to

return to work at the time of her termination because of her

illness. In fact, Plaintiff could not obtain a work release from

her doctor until over a month after her termination. Because

Plaintiff was unable to perform her job at the time of her

termination, she has not shown that she suffered an adverse

employment action.

Even if Plaintiff could identify an adverse employment

action, Plaintiff’s retaliation claim would still fail because

there is no casual connection between her FMLA leave and her

termination. To determine whether the casual connection

requirement has been fulfilled, the Third Circuit has focused on

timing and evidence of ongoing antagonism. Abramson v. Wm.

Case 2:04-cv-00290-JCJ Document 20 Filed 07/07/05 Page 22 of 24
23

Paterson College of N.J., 260 F.3d 265, 288 (3d Cir. 2001)(citing

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3rd. Cir.

2000); Woodson v. Scott Paper Co., 109 F.3d 913, 920-921 (3rd.

Cir. 1997)). While Plaintiff presents no evidence of ongoing

antagonism, she does argue that the temporal proximity of her

FMLA termination to her leave is sufficient to establish

causation. 

It is undisputed that at least four months passed between

Plaintiff’s exhaustion of FMLA leave on July 19th and her

termination on November 29th. This Court has recently held that

a four month gap between FMLA protected activity and termination

will not, in itself, establish causation. Walker v. Independence

Blue Cross, No. 03-6396, U.S. Dist. LEXIS 10219, at *29 (E.D.

Pa. May 27, 2005). In addition, the Third Circuit requires that

the timing of an alleged retaliatory action be “unusually

suggestive” in order for a casual link to be inferred. Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 503 (3rd. Cir. 1997). It

follows that a casual link cannot be inferred from Plaintiff’s

exhaustion of FMLA leave to her termination over four months

later. Because Plaintiff fails to establish a prima facie case

of retaliation, no reasonable jury could find that Defendant

violated her proscriptive rights under the FMLA.

An appropriate Order follows.

Case 2:04-cv-00290-JCJ Document 20 Filed 07/07/05 Page 23 of 24
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PATRICIA A. DOGMANITS :

 Plaintiff, :

:

 v. : CIVIL ACTION

: No. 04-CV-290

CAPITAL BLUE CROSS :

Defendant. :

ORDER

AND NOW, this 7th day of July, 2005, upon consideration of

Defendant Capital Blue Cross’ Motion for Summary Judgment on

Plaintiff’s Second Amended Complaint (Document No. 14),

Plaintiffs’ response thereto (Document No. 18), and Defendant’s

reply (Document No. 19), it is hereby ORDERED that the Motion is

GRANTED, and judgment as a matter of law is ENTERED in favor of

Defendant and against Plaintiff in no amount.

BY THE COURT,

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

Case 2:04-cv-00290-JCJ Document 20 Filed 07/07/05 Page 24 of 24