NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 4374

_____________ COLEMAN R. MCCALL,

Appellant

v. CITY OF PHILADELPHIA; CITY O F PHILADELPHIA

DIVISION OF AVIATION; CITY OF PHILADELPHIA DEPARTMENT OF COMMERCE

DIVISION OF AVIATION; PHILADELPHIA AIRPORT SYSTEM; PHILADELPHIA

INTERNATIONAL AIRPORT

_____________ On Appeal from the United States District Court for the Eastern D istrict of Pennsylvania District Court No. 2

- 11

- cv - 05689 District Judge: The Honorable Ronald L. Buckwalter

Argued October 6, 2015
Before: FUENTES, SMITH, and NYGAARD , Circuit Judges

(Filed: November 18, 2015) Lorrie McKinley [ARGUED] McKinley & Ryan 238 West Miner Street West Chester, PA 19382 Counsel for Appellant2

Elise M. Bruhl [ARGUED] Craig R. Gottlieb Diane A. Loebell Shant H. Zakarian City of Philadelphia Law Department 1515 Arch Street On e Parkway Philadelphia, PA 19102 Counsel for Appellee s

_____________________ OPINION *

_____________________

* This disposi tion is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Circuit Judge. Coleman R. McCall was a Custodial Worker I at the Philadelphia International Airport, which is a dministered by the City of Philadelphia. McCall began his employment in April of 2001. Ten years later, McCall’s employment was terminated. Thereafter, he filed a complaint in the United States District Court for the Eastern District of Pennsylvania all eging that the City had violated his rights under the Family Medical Leave Act (FMLA) , 29 U.S.C. § 26 1 5 , the Americans with Disabilities Act of 1990 (ADA) , as amended , 42 U.S.C. § 12 11 2 , and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Con. Stat. § 95 5

.3

The parties filed cross

- motions for summary judgment after discovery closed. The District Court denied summary judgment on the FMLA retaliation claim, but granted summary judgment in favor of the City on the ADA and PHRA
claims . After the FMLA cl aim settled, McCall filed this appeal. He challenges only the grant of summary judgment on the ADA claims alleging : (1) a failure to accommodate McCall’s knee disability ; (2) a failure to accommodate McCall’s depressive disorder ; and (3) a hostile work en vironment

. 1 “An employer commits unlawful disability discrimination under the ADA if [it] ‘does not mak[e] reasonable accommodations to the known physical or mental limitations’” of an employee. Conneen v. MBNA Am

. Bank, N.A. , 334 F.3d 318, 325 (3d Cir. 2003) (citation omitted ). “‘ [W] hile the notice [of a desire for an accommodation] does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation,’ the notice nonetheless must make clear that the empl oyee wants assistance for his or her disability.’” Jones v. United Parcel Serv. , 214 F.3d 402, 408 (3d Cir. 2000) (quoting Taylor v. Phoenixville Sch. Dist. , 184 F.3d 296, 313 (3d Cir. 1999)). In this case, McCall contends the City failed to accommodat e his knee

1 The District Court had jurisdiction under 28 U.S.C. § § 1331, 1367. We exercise jurisdiction under 28 U.S.C. § 1291. We conduct plenary review of a District Court’s grant of summary judgment. Jones v. United Parcel Serv ., 214 F.3d 402, 405 (3d Cir. 2000).4

disability when it did not allow him to use the fifteen days of unpaid leave
available to employees at the City’s discretion under a civil service regulation. There is no evidence that McCall ever requested such an accommodation. Indeed,
in hi s deposition he affirmed that did not need to make such a request because the fifteen days of unpaid leave were given to every employee

. McCall’s reliance on the availability of unpaid leave , however, was misplaced . McCall’s placement on the No Unpai d Le ave List in both 2006 and 2009 , as well as the City’s issuance of
notic e in August of 2009 that it would not be as generous in approving unpaid
leave , unmistakably informed McCall that u npaid leave wa s not automatically available to every employee every ye ar. Nor is there evidence from which constructive notice of a desire for an accommodation could be inferred. It is true that McCall had several unauthorized
absences. Those absences, however, cannot provide the requisite notice as there was no document ation which would inform the City th at McCall’s unauthorized
absences were attributable to his knee disorder. We recognize that Dr. Leavitt’s
letter explained that McCall’s unauthorized absence on May 1, 2010 was due to severe knee pain and depression. B ut that letter , dated March 21, 2013, cannot constitute constructive notice triggering the duty to accommodat e McCall’s knee disability because the letter was written almost three years after the unauthorized
absence on May 1, 2010

.5

As to McCall’s depress ive disorder, t he evidence fails to establish that the City even knew of McCall’s depression until he asked for FMLA leave at the end of July 2010. Once the City was informed of McCall’s depressive disorder, however, it granted both the requested leave an d an extension of that leave. Thereafter, McCall submitted a prescription from his physician stat ing that his “job related problem continues unimproved. He is unable to work through April 4, 2011.” T he City did not deny additional leave . Rather, the Ci ty informed McCall that it could not process the request “ because the condition for which you are being
treated . . . is not listed on your doctor’s note and you did not complete and submit a leave request.” McCall promised several times to provide the ne cessary medical
documentation . B ut b y April 5, 2011, McCall had failed to submit any documentation. We conclude that the District Court appropriately granted summary judgment on this claim b ecause the City lacked not only a request for leave, but also th e information necessary to determine wh at kind of accommodation was desired

. Nor are we persuaded that the District Court erred in granting summary judgment on McCall’s hostile environment claim. A successful ADA hostile environment claim requires that the “harassment was based on [the] disability or a request for an accommodation.” Walton v. Mental Health Ass’n of Se. Pa. , 168
F.3d 661, 667 (3d Cir. 1999). The evidence fails to show that any harassment that6

occurred was related to either McCall’ s knee disorder or his depression. We recognize that a request for FMLA leave may qualify in certain circumstances as a request for an accommodati on under the ADA. See 29 C.F.R. § 825.702(c)(2). Nonetheless, any harassment McCall may have endured because of a request for FMLA leave occurred when his twins were born prematurely. This was family leave under the FMLA

. See 29 U.S.C. § 2612(a)((1)(A)

- (C). Because family leave is not based on an employee’s own serious health condition, a request for family leave under the FMLA cannot qualify as a request for accommodation of a disability in an ADA hostile environment claim. To be sure, there was some hostility at work. Kayla Jones, the management employee in charge of applying the City’s progressive disciplin e policy, was unprofessional in her interaction with employees , including McCall . The Inspector General’s Office recommended that Jones “be disciplined for multiple incidents of conduct unbecoming in order to minimize further occurrences.” Yet Jones’s
in ability to behave professionally with multiple individuals does not establish that any harassment by Jones was because of McCall’s disabilities or a request for an accommodation. Accordingly, we will affirm the District Court’s judgment.