NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 1 1

- 2639

_______________ DENISE PELLEGRINO, Appellant

v. COMMUNICATIONS WORKERS OF AMERICA, AFL

- CIO, CLC, a labor union

_______________ On Appeal from the United States District Court F or the Western District of Pennsylvania

(D.C. C ivi l Action No. 2

- 10

- c v - 0 0098 ) District Judge: Honorable Gary L. Lancaster

_______________ Submitted Under Third Circuit LAR 34.1(a) April 1 8 , 2012

_______________ Before: SCIRICA, AMBRO and FISHER , Circuit Judges (Opinion filed : April 19, 2012 )

_______________ OPINION

_______________ AMBRO, Circuit Judge Denise Pellegrino claims that her former employer, Communications Worke rs of America (“CWA”), interfered with her rights under the Family and Medical Leave Act of2 1993 (“FMLA”), 29 U.S.C. § 2601 et seq
. The District Court entered summary judgment for CWA, and Pellegrino has appealed. For the reasons set forth below, we affi rm. I. Background Pellegrino began employment with CWA in 2005. She was given an employment manual with copies of the then

- current policies regarding FMLA leave and sick leave. Federal law required CWA to provide F MLA leave (which is unpaid) to eligible employees

. See 29 U.S.C. § 2612(a)(1), (d)(1). It did not re quire CWA to provide paid sick leave . Neither the FMLA policy nor the sick leave policy restricted the travel of employees on leave. In 2006, CWA promulgated a new employment manual. The man ual included a revised Sickness and Absenteeism Policy (the “2006 Policy”) that addressed both FMLA leave and sick leave, though in separate sections. The sick leave section of the 2006 Policy required that employees on paid sick leave “remain in the imme diate vicinity of their home during the period of such a leave.” J.A. 176. It permitted exceptions to this rule if employees so requested in writing before their travel. Id. The FMLA section of the 2006 Policy provided no such restriction. It stated, however, that FMLA leave would run concurrently with any paid sick leave. Id. at 177. Affected CWA employees received the 2006 Policy in an email. It instructed employees that if the 2006 Policy differed from earlier policies, it superseded those polici es to the extent of those differences . Pellegrino stated at her deposition that she did not recall receiving the email about the 2006 Policy. Id. at 134. Email records, however, indicate that she was included among the recipients. Id. at 133

- 34.3 In Au gust 2008, Pellegrino notified CWA that she needed to undergo surgery. CWA responded with a letter describing Pellegrino’s rights and obligations under the
FMLA. See id. at 268

- 69. In bold type, the letter stated that “the process of medical certificati on for FMLA leave is completely separate from the process for approving leaves for continued sick pay treatment under CWA’s sick leave policy.” Id. at 269. The letter enclosed two separate medical certification forms, one for FMLA leave and the other for paid sick leave. Another enclosure, Department of Labor Form WH

- 381, stated in large type: “You will be required to substitute paid leave under CWA’s sick leave policy for the period of time that you qualify for such benefits.” Id. at 270. The letter d id not, however, enclose the 2006 Policy or note its restriction on travel. After Pellegrino submitted the required certifications, CWA granted her leave
under the FMLA

. Id. at 360. It was to begin on October 2, the date of her surgery, and last at leas t four weeks. See id. at 39, 76, 360. During this time, Pellegrino received her full salary and benefits , as CWA required that paid sick leave run concurrently with FMLA leave

. See id. at 131

- 32. About two weeks after the surgery, she and three acquain tances traveled to Cancun, Mexico, where they spent a week. She did not notify CWA of her trip. When Pellegrino returned from Cancun, CWA requested that she come to the office for a meeting on November 3, while she was still on leave. She agreed. At th e meeting, the administrative director of Pellegrino’s office asked her if she had traveled while on leave, and she conceded that she had. Later that day, CWA sent Pellegrino a letter terminating her employment because she had violated CWA’s sick leave po licy.4 Pellegrino filed this suit in the District Court for the Western District of Pennsylvania in January 2010. After discovery, CWA moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. The District Court granted its motion, and t his timely appeal followed.
II. Jurisdiction and Standard of Review The District Court had jurisdiction under 29 U.S.C. § 2617(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. Summary judgment is proper if “ there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a). “ In ruling on a motion for summary judgment, the district court must view the facts in the light most favorable to the non

- moving party. However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch.
Dist. , 650 F.3d 205, 211 (3d Cir. 2011) ( en banc ) (emphasis, citations, and internal quotation marks omitted). Our review of the District Court ’ s grant of summary judgment is plenary. Sloan & Co. v. Liberty Mut. Ins. Co. , 653 F.3d 175, 179 (3d Cir. 2011).
III. Discussion
A. Notice Pellegrino’s principal argument on appeal is that CWA did not provide her sufficient notice of its policy against travel during sick leave and the consequence of termination. She argues that a genuine issue of material fact exists as to whether she received the 2006 Policy. Further, she objects that , even if she received the 2006 Policy,5 it did not state that employees could be terminated for violating its travel prohibition. She is able to invoke the FMLA because her termination occurred during both sick leave and FMLA leave

. Pellegrino has a sserted an “interference” claim (as opposed to a more burdensome “retaliation” or “discrimination” claim) under the FMLA. The interference provision states: “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 [the FMLA].” 29 U.S.C. § 2615(a)(1). “In order to assert a claim of interference, an employee must show that [s]he was entitled to benefits under the FMLA and that [her] employer illegitimately prevented [he r] from obtaining those benefits.” Sarnowski v. Air Brooke Limousine, Inc. , 510 F.3d 398, 401 (3d Cir. 2007). “‘[E] very discharge of an employee while she is taking FMLA leav e interferes with an employee’ s FMLA rights .’” Bacon v. Hennepin Cnty. Med. Ctr

. , 550 F.3d 711, 715 (8th Cir. 2008) (quoting Throneberry v. McGehee Desha Cnty. Hosp. , 403 F.3d 972, 980 (8th Cir. 2005)). However, “an employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requirin g notice of absences, even if the absences that the employee failed to report were protected by the FMLA .” Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 1008

- 09 (10th Cir. 2011) (emphasis in original). That is because taking FMLA leave generally does n ot affect an employee’s obligations under non

- FMLA company policy. See id. at 1006

- 07. Here, Pellegrino was on both FMLA leave and paid sick leave, as the law allows

. See 29 U.S.C. § 2612(d)(2); Strickland v. Water Works & Sewer Bd. , 239 F.3d 1199,6 1204

- 06 (11th Cir. 2001). Therefore, she remained bound by CWA’s sick leave policy so long as it was not inconsistent with the FMLA. “[T] he only issue

. . . is whether [CWA] denied [Pellegrino] of [her] entitlements under the FMLA by enforcing its own sick l eave policies against [her] while [s] he was on leave. ” Callison v. City of Phila. , 430 F.3d 117, 120 (3d Cir. 2005); see also Millea v. Metro

- North R.R. Co. , 658 F.3d 154, 161 (2d Cir. 2011) (“[A] company may discipline an employee for violating its inter nal leave policy as long as that po licy is consistent with the law .

. . .”). CWA’s sick leave policy was not inconsistent with the FMLA; hence, CWA did not interfere with Pellegrino’s FMLA rights by enforcing it against her. The sick leave policy “ merel y sets forth obligations of employees who are on leave, regardless of whether the leave is pursuant to the FMLA. ” Callison , 430 F.3d at 120. “ Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse thei r leave

. . . . ” Id. at 121. Indeed, in Callison we approved a city government’s policy that required employees to call the city each time they came and went from their homes during leave. See id. at 120

- 21. If that policy is consistent with the FMLA, then a policy that forbids vacations during paid sick leave also is consistent with the FMLA. Pellegrino protests that , when an employee requests FMLA leave, “[t]he employer shall also provide the employee with written notice detailing the specific expect ations and obligations of the employee and explaining any consequences of a failure to meet these obligations.” 29 C.F.R. § 825.301(b)(1) (2008) (emphasis added) ; see also Conoshenti v. Pub. Serv. Elec. & Gas Co. , 364 F.3d 135, 142

- 45 (3d Cir. 2004) (disc ussing this7 provision). 1

Thus, viewing the facts in the light most favorable to Pellegrino, we agree with the District Court that CWA did not interfere with her rights under the FMLA. To repeat, she asserts that she never received the 2006 Policy, and if she did, it did not explain that she could be terminated for travel during leave. Pellegrino did, however, receive a notice of her obligations under the FMLA

. The Department of Labor provides Form WH

- 381, which she received, as a standard notice that satisfies the regulation’s requirements. See Neel v. Mid

- Atl. of Fairfield, LLC , 778 F. Supp. 2d 593, 603 (D. Md. 2011) (“[T]his Court agrees that WH

- 381 suffice s as notice under section 825.300(c) .”). Those requirements, which the regulation enumerates, are specific to the
FMLA. See 29 C.F.R. § 825.301(b)(1)(i)

- (viii) (2008). It and its regulations are silent as to what, if any, notice an employee must receive about corporate paid sick leave policies.
See Bacon , 550 F.3d at 715

- 16.

B. Spoliation of Evi dence Pellegrino also contends that the District Court improperly ignored a CWA employee’s spoliation of evidence. She asserts that the CWA employee learned of her travels from a union member who worked at the Pittsburgh airport, then destroyed a documen t that the union member had provided. That alleged spoliation, Pellegrino continues, undermines the credibility of the CWA employee. The testimony of that employee, however, is not necessary to our analysis. The sick leave policy, CWA’s

1 We quote the regulation that was in force when Pellegrino took he r leave. Since then, it has been slightly reworded and recodified at 29 C.F.R. § 825.300(c)(1). See Family and Medical Leave Act of 1993, Effectiveness of Information Collection Requirements, 74 Fed. Reg. 2862 (Jan. 16, 2009).8 disclosures, and Pellegrino’s testimony and travel records are sufficient. We may conclude that CWA did not interfere with Pellegrino’s FMLA rights without relying in any way on that testimony. Thus , the alleged spoliation does not render summary judgment improper.
C. At

- Will Employment Finally, Pellegrino briefly argues that the District Court erred in stating tha t she
was an at

- will employee. On appeal, CWA concedes that the District Court’s statement was in error. However, it argues that the error is immaterial, a s Pellegrino’s collective bargaining agreement ( s he was a member of the Office and Professiona l Employees International Union ) does not preclude termination in this context. CWA’s sick leave policy states that it governs unless it is inconsistent with an employee’s collective bargaining agreement, and Pellegrino’s collective bargaining agreement is silent as to travel during sick leave. We therefore agree with CWA that the error was immaterial to the FMLA claim before us.
* * * * * Though Pel legrino’s termination appears harsh, the FMLA is not a law that remedies her failure to abide by CWA’s sick leave policy. Thus , we affirm the District Court’s grant of summary judgment.