NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 14-4374

_____________

COLEMAN R. MCCALL,

 Appellant 

v.

CITY OF PHILADELPHIA; CITY OF 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 District 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 Appellant
2

Elise M. Bruhl [ARGUED]

Craig R. Gottlieb

Diane A. Loebell

Shant H. Zakarian

City of Philadelphia

Law Department

1515 Arch Street

One Parkway 

Philadelphia, PA 19102

Counsel for Appellees

 

_____________________

 OPINION*

_____________________ 

 

* This disposition 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 administered 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 alleging that the City had violated his 

rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615, the 

Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12112, 

and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Con. Stat. § 955. 
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 claim 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 environment.

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 employee 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 accommodate 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 his 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 Unpaid Leave List in both 2006 and 2009, as well as the City’s issuance of 

notice in August of 2009 that it would not be as generous in approving unpaid 

leave, unmistakably informed McCall that unpaid leave was not automatically 

available to every employee every year.

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 documentation which would inform the City that 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. But that letter, dated March 21, 2013, cannot 

constitute constructive notice triggering the duty to accommodate 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 depressive disorder, the 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 and an extension of that leave. 

Thereafter, McCall submitted a prescription from his physician stating that his “job 

related problem continues unimproved. He is unable to work through April 4, 

2011.” The City did not deny additional leave. Rather, the City 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 necessary medical 

documentation. But by April 5, 2011, McCall had failed to submit any 

documentation. We conclude that the District Court appropriately granted 

summary judgment on this claim because the City lacked not only a request for 

leave, but also the information necessary to determine what 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 that 
6

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 accommodation 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 discipline 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 

inability 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.