NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4291

___________

MYRON GIDDENS,

Appellant

v.

UPS SUPPLY CHAIN SOLUTIONS

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 1-11-cv-00616)

District Judge: Honorable Noel L. Hillman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 6, 2015

Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

(Opinion filed: July 16, 2015)

________________

OPINION*

________________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Myron Giddens appeals the District Court’s grant of summary judgment against 

him on his claims against UPS Supply Chain Solutions (“UPS”) for interference with his 

rights under the Family and Medical Leave Act (“FMLA”), for unlawful retaliation 

related to his use of FMLA leave, and for unlawful retaliation for what Giddens alleged 

was protected activity under 42 U.S.C. § 2000e (“Title VII”). We will affirm the District 

Court’s judgment. 

Giddens started work at UPS in February of 2008. His employment was 

terminated in July of 2008 because of attendance issues. Giddens challenged the 

termination through UPS’s employee dispute resolution program and was reinstated in 

October of 2008, with his notice of termination converted to a final written warning for 

attendance problems. Giddens does not deny that he continued to have attendance 

problems and received multiple written warnings and negative performance reviews. In 

early December of 2009, Giddens filed a complaint with the Delaware Department of 

Labor and the Equal Employment Opportunity Commission (“EEOC”) alleging that he 

was being discriminated against at work because his superiors harassed him, demanding 

documentation and that he return to work while he was on sick leave. Giddens then 

missed work from December 22 to December 30, 2009 and from January 4 through his 

termination by letter dated January 14, 2010. The letter stated that he was being 

terminated because of his attendance in 2009 and concerns about the inconsistency and 

accuracy of information he provided regarding his attendance. Giddens claims he was 
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experiencing flu symptoms during those final absences and that he was under the care of 

his doctor.

Giddens sued UPS, alleging that the absences in the holiday season of 2009-2010 

were protected FMLA leave and that UPS had both interfered with his rights under the 

FMLA and retaliated against him for exercising those rights. He also claimed that UPS 

had retaliated against him for filing the complaint with the EEOC. UPS moved for 

summary judgment on all claims and the District Court granted the motion.1 

“Our review of the District Court's grant of summary judgment is plenary, viewing 

the facts in the light most favorable to the nonmoving party.” Erdman v. Nationwide Ins. 

Co., 582 F.3d 500, 502 (3d Cir. 2009). “Summary judgment is appropriate only if there 

is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 251 (3d Cir. 2014) 

(internal quotation marks omitted). We may affirm on any grounds supported by the 

record. See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

The District Court correctly granted summary judgment on Giddens’s Title VII 

retaliation claim because Giddens did not present any evidence to show that the decisionmakers involved in his firing knew that he had filed an EEOC discrimination complaint. 

 

1 Giddens references a “discrimination claim” in his materials. However, the District 

Court dismissed Giddens’s substantive discrimination claim without prejudice and gave 

him leave to amend his complaint. In his amended complaint, Giddens did not attempt to 

resurrect the discrimination claim but chose to pursue only the Title VII retaliation claim 

and the claims raised under the FMLA. 
4

Title VII prohibits employers from retaliating against an employee who has availed 

himself of his rights under that statute. See 42 U.S.C. § 2000e-3(a). To establish a prima 

facie case of retaliation under Title VII, Giddens was required to produce evidence to 

show that: (1) he engaged in a protected activity under the statute; (2) UPS took adverse 

employment action against him; and (3) there was a causal connection between his 

protected activity and the adverse employment action. See Moore v. City of 

Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). 

Both parties acknowledge that Giddens participated in protected action by filing 

his discrimination complaint and that UPS took adverse employment action when it fired 

him. Giddens’s only evidentiary support for the required causal connection is the 

temporal proximity of his firing to his filing of the EEOC claim. Giddens was fired 

approximately two weeks after notice of his claim was sent to UPS. “To demonstrate a 

link between protected activity and an employer's adverse action, a plaintiff may rely on 

the temporal proximity between the two if ‘unusually suggestive.’” Daniels v. Sch. Dist. 

of Phila., 776 F.3d 181, 196 (3d Cir. 2015). However, UPS presented evidence that the 

decision to fire Giddens was made before any of the decision-makers received notice of 

the EEOC claim, which was mailed to UPS on December 29, 2009. Giddens’s supervisor 

requested permission to terminate his employment as early as December 23. All three 

participants in the final decision to terminate Giddens provided affidavit testimony that 

the decision was made before they were aware of his discrimination complaint. Their 

testimony was bolstered by emails discussing the need to wait until Giddens and other 
5

personnel were in the office to inform him of the decision, followed by a final email 

directing Giddens’s superiors to inform him of his termination by letter because he had 

not returned to work. Giddens “cannot establish that there was a causal connection 

without some evidence that the individuals responsible for the adverse action knew of 

[his] protected conduct at the time they acted.” Id. Giddens provided no such evidence 

and the District Court properly granted summary judgment to UPS on this claim.2

The District Court also properly granted summary judgment on the FMLA 

interference and retaliation claims because Giddens was not entitled to FMLA leave for 

the final series of absences for which he was fired. UPS does not dispute that Giddens 

was covered under the FMLA. However, in order to qualify for FMLA leave, an 

employee must suffer from a serious health condition and give the employer adequate 

notice of the need for FMLA leave. Schaar v. Lehigh Valley Health Serv., Inc., 598 F.3d 

156, 158 (3d Cir. 2010). The only definition of a serious health condition under the 

FMLA that Giddens argues applies to his situation is one that involves “continuing 

treatment by a health care provider.” See 29 U.S.C. § 2611(11)(B). The FMLA requires 

Giddens to have had his first in-person treatment visit within “seven days of the first day 

 

2 The District Court also correctly noted that there was ample evidence in the record of 

legitimate, non-retaliatory reasons for Giddens’s termination and that Giddens had failed 

to present any evidence that such reasons were set forth as mere pretext to cover up 

retaliation. Giddens therefore could not meet his burden under the McDonnell Douglas

burden-shifting test, even if he established a prima facie case for retaliation under Title 

VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Under this 

analysis, Giddens’s FMLA retaliation claims fail as well. See Lupyan v. Corinthian Coll. 

Inc., 761 F.3d 314, 324 (3d Cir. 2014).
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of incapacity.” See 29 C.F.R. § 825.115(a)(3). Incapacity is defined as “inability to 

work, attend school or perform other regular daily activities due to the serious health 

condition, treatment therefore, or recovery therefrom.” 29 C.F.R. § 825.113(b). In his 

second amended complaint, Giddens identified December 22 as his first day of 

incapacity. In his opposition to summary judgment, he identified December 21, the first 

day he called out of work, as his first day of incapacity. However, in his deposition, he 

stated that his symptoms started as early as December 18, and that he spent Saturday, 

December 19, and Sunday, December 20, in bed “trying to recuperate.” In light of his 

admission that he was not able to perform his regular daily activities starting on 

December 19, the District Court determined that Giddens had failed to raise a question of 

fact with respect to whether he suffered from a serious health condition because his 

December 28 doctor visit took place outside the seven days permitted under the statute.3 

The District Court properly granted summary judgment on Giddens’s claim for FMLA 

interference. 

 

3 The District Court noted that Giddens had not made any argument regarding the seven 

day requirement. On appeal, Giddens argues that the December 28 visit was the first 

available visit and that he was unable to see a doctor before then due to circumstances 

outside his control. However, in his counseled brief in response to the motion for 

summary judgment, Giddens simply stated that it was undisputed that his first day of 

incapacity was December 21. He did not provide any evidence to dispute his deposition 

testimony, which established his first day of incapacity as December 19. Giddens 

provides no reason why he did not respond in the District Court to UPS’s undisputed 

evidence regarding the timing of his treatment. We will not consider this issue for the 

first time on appeal. See In re Mystic Tank Lines Corp., 544 F.3d 524, 528 (3d Cir. 

2008). 
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Accordingly, we will affirm the judgment of the District Court. Giddens’s motion 

to add an addendum to his reply brief is granted.