2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-1-2011

Audrey Scott v. UPMC

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3667

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Recommended Citation

"Audrey Scott v. UPMC" (2011). 2011 Decisions. Paper 944.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-3667

_______________

AUDREY E. SCOTT, 

Appellant

v.

UPMC, d/b/a UNIVERSITY OF PITTSBURGH MEDICAL CENTER

_______________

On Appeal from the United States District Court

For the Western District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-01475)

District Judge: Honorable Arthur J. Schwab

_______________

Submitted Under Third Circuit LAR 34.1(a)

June 21, 2011

_______________

Before: BARRY, AMBRO, and COWEN, Circuit Judges

(Opinion filed : July 1, 2011)

_______________

OPINION

_______________

AMBRO, Circuit Judge

Plaintiff-appellant Audrey Scott sued Defendant University of Pittsburgh Medical 

Center (UPMC) alleging violations of the Family and Medical Leave Act (FMLA), 29 
2

U.S.C. § 2601 et seq. The District Court granted summary judgment to UPMC, and Scott 

appealed. We affirm the District Court. 

I. Background

In June 2008, Scott accepted a full-time job as a housekeeper at UPMC’s South 

Side facility. She worked the third shift (from approximately 10:30 p.m. until 6:30 a.m.) 

in order to accommodate her part-time job at a concession stand at PNC park, where she 

worked during the Pittsburgh Pirates’ home games. 

In November 2008, Scott had a cyst removed from her back, and then she had two 

cataract surgeries in early 2009. These procedures required her to take time off work, 

which she requested and was granted. Additionally, she was at least once advised of her 

rights under the FMLA in connection with at least one of these leaves. Those surgeries 

and accompanying leaves took place largely without incident, and Scott remained an 

employee in good standing when, in June 2009, she was transferred to UPMC’s Mercy 

Hospital. 

On July 1, Scott went to her primary care physician, reporting that the scar left by 

the cyst removal surgery had become painful, particularly when she was required to push 

or pull objects during the workday at UPMC-Mercy. Her physician referred her to Dr. 

Castillo, who had performed the cyst removal, and he met with Scott the following day. 

Dr. Castillo advised Scott that she would eventually need additional surgery to remove 

the painful scar tissue, and that she should limit herself to “light duty” at work for the 

following four weeks. However, he did not initially define light duty.
3

Scott reported to work that evening and informed her supervisor of her work 

restriction. However, there was no light duty work available, and Scott was sent home. 

On July 6, Sue Hale, a supervisor at UPMC-Mercy, directed Scott to communicate with

Work Partners, a company responsible for administering UPMC’s various leave 

programs. Scott called Work Partners the next day, and was informed that she would 

receive FMLA leave paperwork, which she should fill out and return. Unfortunately, this 

paperwork was misaddressed and Scott neither received it nor requested that it be re-sent. 

Shortly thereafter, Dr. Castillo reviewed a copy of Scott’s job description, which 

included a list of ten duties. Above one of the duties—“[m]ove equipment, furniture, 

boxes, wash walls, spot carpets, etc. as assigned”—he wrote “[c]annot lift anything more 

than 25 lbs.” (Emphasis in original.) Scott hand-delivered a copy to the office of Jack 

Grandy, UPMC-Mercy’s director of housekeeping, patient transport, and laundry. 

Grandy was not present at the time, but his assistant told Scott that UPMC-Mercy would 

have to receive paperwork from Work Partners before she could return to work. 

On July 15, Grandy left a voicemail for Scott in which he informed her that she 

should report to work during the second shift (from 3:00 p.m. until 11:00 p.m.) the 

following day because her request for light duty could be accommodated then.1

 1 In contrast, Scott’s request for light duty work could not be accommodated on the third 

shift, when she usually worked.

Scott 

returned the call, but could not reach Grandy. However, she told his assistant that she 

had a scheduling conflict because of her job at PNC Park. On July 16, Scott neither 

reported to work nor communicated with Grandy.
4

On July 21, and at the request of Work Partners, Dr. Castillo provided more 

detailed information about Scott’s work restrictions. He indicated that she could 

“occasionally” lift, carry, push, or pull zero to fifty pounds, but never more than that. He 

also indicated that she could perform “light duty,” which was defined as “[m]aximum 

lifting of up to 20 lbs. with frequent lifting/carrying of up to 10 lbs. or a negligible 

amount; significant walking or standing may be required or may involve sitting with a 

degree of pushing and pulling.” About the same time,2

On August 4, Work Partners wrote to Scott, stating in part that a representative 

had attempted to reach her the day before in order to instruct her to return to work on the 

second shift. The letter also stated that “Work Partners has not yet received medical 

records from your treating provider that support your need for modified duty work at this 

a representative of Work Partners 

phoned Scott, who stated that she had never received FMLA paperwork, and that she had 

been told to return to work on the second shift but could not work that shift. The 

representative reportedly promised to speak with Grandy about this situation and to get 

back to Scott about her FMLA paperwork. 

On July 24, Scott received a letter from Grandy. Among other things, the letter

stated that Scott had failed to report to work on July 16, 17, 20, 21, and 22, and requested 

that she communicate with Grandy no later than July 27 to advise him whether she 

intended to remain in UPMC’s employ. However, Scott did not respond to Grandy, 

instead relying on Work Partners’ commitment to phone Grandy on her behalf. 

 2 The record is unclear as to when this call took place; it may have occurred as late as 

July 24.
5

time,” and threatened that if Scott failed to return to work she may be subject to 

“disciplinary action as outlined in the UPMC Time and Attendance Policy.” Supp. App. 

123. The same day, Work Partners requested additional information from Dr. Castillo. 

Shortly thereafter, Work Partners denied Scott’s claim for light duty. Additionally, 

UPMC terminated Scott’s employment, effective July 2, for failure to report to work. 

However, Work Partners’ evaluation of whether she was entitled to FMLA leave 

apparently continued, as it requested more documentation in a letter dated September 14. 

It denied FMLA leave on September 29.

Scott sued UPMC, contending that it violated her rights under the FMLA by firing 

her despite her entitlement to leave, and retaliating against her for asserting her right to 

leave. During discovery, however, Scott stated that she had never asked for time off, and 

that she “didn’t need time off.” Supp. App. 22. After discovery, the District Court 

granted summary judgment to UPMC based on the Court’s conclusion that Scott had 

failed to establish she was entitled to protection under the FLMA because she did not 

suffer from a “serious health condition.” Scott timely appealed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331, and we have 

jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary 

judgment de novo. Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011). We may 

“affirm the District Court’s judgment on any basis found in the record.” Lazaridis v. 

Wehmer, 591 F.3d 666, 670 (3d Cir. 2010).
6

III. Analysis

The FMLA was enacted to “entitle employees to take reasonable leave for medical 

reasons” “in a manner that accommodates the legitimate interest of employers.” 29 

U.S.C. § 2601(b)(2) & (3). It achieves this objective by, among other things, requiring 

covered employers to grant 12 weeks of unpaid leave to any eligible employee suffering 

from a serious health condition. 

However, in order to invoke FMLA protection, an employee must first notify her 

employer of her need for leave. Under the relevant regulation,

[a]n employee shall provide at least verbal notice sufficient to make the 

employer aware that the employee needs FMLA-qualifying leave, and the 

anticipated timing and duration of the leave . . . . [T]he employee need not 

expressly assert rights under the FMLA or even mention the FMLA.

29 C.F.R. § 825.302(c).

This is not a high bar. “An employee who does not cite to the FMLA . . . may 

have provided his employer with reasonably adequate information under the 

circumstances to understand that the employee seeks leave under the FMLA.” Sarnowski 

v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007). Nonetheless, we 

conclude that Scott has failed to show a dispute of material fact as to whether her request 

for light duty was sufficient to apprise UPMC of her need for FMLA leave. Phillips v. 

Mathews, 547 F.3d 905, 909 (8th Cir. 2008) (whether employee put employer on notice 

of need for FMLA leave is question of fact). 

The applicable regulation requires employees to notify their employers that they 

need leave—time off work—and not simply that they need a modification of their duties. 
7

Here, however, it is undisputed that Scott asked only for “light duty,” not leave.

3

 Then, 

when Grandy offered her light duty (albeit on an undesirable shift), she failed to reply to 

his various messages, much less inform him that she had changed her mind by deciding 

to request leave instead of light duty.4

Nor did Scott’s communications with Work Partners convert her request for light 

duty into a request for FMLA leave. It is true that one of Work Partners’ representatives

initiated the process of assessing Scott’s entitlement to FMLA leave, among other things. 

However, that fact has little bearing on whether UPMC should have known that Scott 

wanted leave, rather than light duty. Additionally, Work Partners offered to talk to 

Grandy on Scott’s behalf, albeit after Scott had already failed both to report to her light 

duty assignment and to inform Grandy that she wanted leave instead of that assignment. 

 As a matter of law, this was insufficient to place

Grandy on notice of Scott’s possible need for FMLA leave. See Brohm v. JH Properties, 

Inc., 149 F.3d 517, 523 (6th Cir. 1998) (“nothing in [the FMLA] places a duty on an 

employer to affirmatively grant leave without such a request or notice by the employee”); 

Cf. Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576, 583 (5th Cir. 2010) (after providing 

notice of need for FMLA leave, employee is “required to respond to reasonable employer 

inquiries for additional information”). 

 3 On page 12 of her Reply Brief, Scott attempts to make a virtue out of this fact, stating 

that she “did not desire any more tha[n] she thought that she required.” This argument 

misses the point: to apprise an employer that one needs leave, an employee must actually 

state as much. 4 Scott did speak with Grandy’s assistant about the July 15 instruction to return to work. 

However, when that assistant indicated that she did not know about the situation and 

could not help Scott, it was up to Scott to follow up with Grandy, particularly after his 

letter asking whether Scott intended to continue working for UPMC.
8

But Scott’s decision to rely on Work Partners directly contravened the instruction 

contained in Grandy’s July 24 letter, which stated “[p]lease contact me at 412-232-7226 

no later than end of business on July 27, 2009 to advise me of your intentions of 

maintaining your active employment status with UPMC Mercy.” This language was in 

boldface type and underlined, and Scott admits that she received the letter. Under these 

circumstances, she cannot create a dispute of fact out of her failure to comply with 

UPMC’s reasonable request for information regarding whether she intended to return to 

work. 5

 5 Judge Barry would add that the District Court also properly concluded that the various 

disputes between Scott and UPMC concerning her “light duty” request were not disputes 

of material fact relevant to the substance of FMLA interference and retaliation claims. 

Rather, they reflected the fact that Scott’s request for light duty, which UPMC-Mercy 

was prepared to accommodate on the shift for which she was hired, arose in the context 

of her unavailability for that shift because it conflicted with her job at PNC Park – a job 

at which she continued to work during the time of her alleged incapacitation, and that 

apparently involved duties that were as, if not more, strenuous than those that her UPMC 

job entailed.

* * *

Accordingly, we affirm the District Court’s grant of summary judgment to UPMC.