Deborah Hansler v. Lehigh Valley Hospital Network ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 14-1772
DEBORAH HANSLER,
Appellant
v.
LEHIGH VALLEY HOSPITAL NETWORK,
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 5-13-cv-03924)
District Judge: Honorable James Knoll Gardner
_____________
Argued on January 13, 2015
Before: AMBRO, FUENTES, and ROTH, Circuit Judges
(Filed: August 19, 2015)
Samuel A. Dion, Esq. [ARGUED]
Dion & Goldberger
1845 Walnut Street
Suite 1199
Philadelphia, PA 19103
Counsel for Appellant
Darren M. Creasy, Esq.
Karyn Dobroskey Rienzi, Esq.
A. James Johnston, Esq.
Andrea M. Kirshenbaum, Esq. [ARGUED]
Post & Schnell
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103
Glenn Guanowsky, Esq.
Lehigh Valley Hospital
Department of Legal Services
1200 South Cedar Crest Boulevard
P.O. Box 689
Allentown, PA 18103
Counsel for Appellee
OPINION
FUENTES, Circuit Judge.
Deborah Hansler requested intermittent leave from her
former employer, Lehigh Valley Health Network (“Lehigh
Valley”), under the Family Medical Leave Act of 1993
(“FMLA” or the “Act”), 29 U.S.C. § 2601 et seq.1
Specifically, Hansler submitted a medical certification
1
The case name incorrectly refers to Lehigh Valley Health
Network as Lehigh Valley Hospital Network.
2
requesting leave for two days a week for approximately one
month. As alleged in the complaint, the medical certification
refers to the length of her requested leave but not the nature
or duration of her condition. A few weeks later, after she took
several days off work, Lehigh Valley terminated Hansler’s
employment without seeking any clarification about her
medical certification, as required by law. Lehigh Valley cited
excessive absences and informed her that the request for leave
had been denied. Hansler sued Lehigh Valley for violations of
the Medical Leave Act, and the District Court dismissed the
complaint on the basis that the medical certification
supporting Hansler’s request for leave was “invalid.” We
conclude that, by alleging that Lehigh Valley terminated her
instead of affording her a chance to cure any deficiencies in
her medical certification, Hansler has stated a claim that
Lehigh Valley violated the Medical Leave Act. Accordingly,
we reverse and remand for further proceedings.
I.
Hansler was hired by Lehigh Valley in 2011 to work
as a technical partner. In early March 2013, Hansler began
experiencing shortness of breath, nausea, and vomiting. At
the time, the cause of these symptoms was unknown. On
March 13, Hansler’s physician completed a medical
certification form “requesting intermittent leave at a
frequency of 2 times weekly starting on March 1, 2013 and
lasting for a probable duration of one month– or until about
April 1, 2013.” App. 44. Hansler submitted the certification to
Lehigh Valley as part of a formal request for leave under the
Medical Leave Act. As a result of her condition, Hansler was
unable to work on March 13, 14, 23, 24, and 25.
3
Without seeking further information about the medical
certification from either Hansler or her physician, Lehigh
Valley terminated Hansler at the end of her shift on March
28. The basis for Hansler’s termination was absenteeism,
including the five days she took off in March. Hansler
reminded Lehigh Valley that she had requested time off under
the Medical Leave Act, but Lehigh Valley informed her, for
the first time, that her request had been denied. Following the
last of her absences, Hansler learned of a letter dated March
26 explaining that her request for “leave of absence (FMLA)
for the period of 3/1/13-3/11/13” was denied because her
“condition presently does not qualify as a serious health
condition under the criteria set forth by the [Medical Leave
Act].” App. 45. In early April 2013, after her dismissal,
Hansler received a diagnosis of diabetes and high blood
pressure. She alleges that these previously undiagnosed and
untreated conditions are what caused her March absences.
Hansler sued Lehigh Valley under the Medical Leave
Act for interfering with her substantive rights to medical
leave and for terminating her in retaliation for seeking leave.
In her complaint, Hansler alleges she has chronic serious
health conditions and argues that Lehigh Valley improperly
denied her request for leave without providing her an
opportunity to cure her medical certification. The District
Court granted Lehigh Valley’s motion to dismiss for failure to
state a claim. It concluded that Hansler’s request for leave
was defective because her medical certification indicated that
her condition would last only one month, but the Medical
Leave Act requires that a chronic serious health condition
persist for an “extended period of time.” The District Court
held that because the certification showed that Hansler was
not entitled to leave, Lehigh Valley was not required to afford
4
Hansler a cure period and was permitted to terminate Hansler
for her subsequent absences. That Hansler was later
diagnosed with diabetes and high blood pressure was of no
consequence. According to the Court, “[a]lthough the timing
of events for plaintiff was, without question unfortunate, the
fact remains that her diagnosis with diabetes and high blood
pressure did not occur until after her leave request was denied
and she was fired by defendant.” Hansler v. Lehigh Valley
Health Network, No. 13-cv-03924, 2014 WL 1281132, at *10
(E.D. Pa. Mar. 28, 2014). Hansler filed this appeal.2
II.
Congress passed the Medical Leave Act “to balance
the demands of the workplace with the needs of families” and
“to entitle employees to take reasonable leave for medical
reasons.” 29 U.S.C. § 2601(b). The Medical Leave Act
2
The District Court had jurisdiction under 28 U.S.C. § 1331,
and we have jurisdiction to review the District Court’s final
order under 28 U.S.C. § 1291. We exercise plenary review
over a district court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Pearson v. Sec’y
Dep’t of Corr., 775 F.3d 598, 601 (3d Cir. 2015). To survive
a motion to dismiss under Rule 12(b)(6), a plaintiff must
allege “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in favor
of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008).
5
carries out these objectives by providing that eligible
employees are entitled to 12 workweeks of leave during any
12-month period if the employee has a “serious health
condition” that makes the employee unable to perform the
functions of her position. Id. § 2612(a)(1)(D). After a worker
returns from leave, the worker is entitled to be reinstated to
her previous position or an equivalent one. Id. § 2614(a)(1).
A “serious health condition” is one that involves
inpatient care in a hospital or “continuing treatment by a
health care provider.” Id. § 2611(11). In its implementing
regulations, the Department of Labor defines “[c]ontinuing
treatment by a health care provider” to include “chronic
serious health condition[s]” that (i) “[r]equire[] periodic visits
(defined as at least twice a year) for treatment by a health care
provider,” (ii) “[c]ontinue[] over an extended period of time,”
and (iii) “[m]ay cause episodic rather than a continuing period
of incapacity (e.g., asthma, diabetes, epilepsy, etc.).” 29
C.F.R. § 825.102.
Prior to taking leave, an employee must give her
employer notice of the request for leave, “stat[ing] a
qualifying reason for the needed leave.” Id. § 825.301(b). An
employer may require its employees to support their requests
for leave with a certification issued by a health care provider.
29 U.S.C. § 2613(a). A “sufficient” medical certification must
state (1) the date on which the serious health condition began,
(2) the probable duration of the condition, (3) relevant
medical facts, (4) a statement that the employee is unable to
perform the functions of her position, (5) the dates and
duration of any planned medical treatment, and (6) the
expected duration of the intermittent leave. Id. § 2613(b).
6
Significantly, the Department of Labor’s regulations
govern how employers are to respond to perceived
deficiencies in employee notices generally, and in medical
certifications in particular. While an employee seeking
FMLA leave must “state a qualifying reason for the needed
leave” and fulfill notice requirements, the employee “does not
need to expressly assert rights under the Act or even mention
the FMLA.” 29 C.F.R. § 825.301(b). Instead, in “any
circumstance where the employer does not have sufficient
information about the reason for an employee’s use of leave,
the employer should inquire further of the employee . . . to
ascertain whether leave is potentially FMLA-qualifying.” Id.
§ 825.301(a). In addition, an employer “shall advise an
employee whenever the employer finds a certification
incomplete or insufficient, and shall state in writing what
additional information is necessary to make the certification
complete and sufficient.” Id. § 825.305(c). A certification is
“incomplete” if the “employer receives a certification, but one
or more of the applicable entries have not been completed.”
Id. A certification is “insufficient” if the “employer receives a
complete certification, but the information provided is vague,
ambiguous, or non-responsive.” Id. If the employer
determines that a certification is either incomplete or
insufficient, it may deny the requested leave on the basis of
an inadequate certification. But it may only do so if it has
“provide[d] the employee with seven calendar days (unless
not practicable under the particular circumstances despite the
employee’s diligent good faith efforts) to cure any such
deficiency.” Id.; see Hansen v. Fincantieri Marine Grp., LLC,
763 F.3d 832, 837 (7th Cir. 2014) (“[T]he regulations do not
authorize the employer to deny FMLA leave where the
employee fails to provide a complete and sufficient
certification but is not given the opportunity to cure the
7
deficiency.”).
A.
Hansler’s first claim is that Lehigh Valley interfered
with her rights under the Medical Leave Act by failing to
afford her a chance to cure deficiencies in her medical
certification. This claim is based on statutory text providing
that employers may not “interfere with, restrain, or deny the
exercise of or attempt to exercise” rights granted under the
Act. 29 U.S.C. § 2615(a)(1). Moreover, “[a]ny violations of
the Act or of these regulations constitute interfering with” the
exercise of an employee’s rights. 29 C.F.R. § 825.220(b). To
assert an interference claim, an employee must establish,
among other things, that she was denied benefits under the
Act. Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014).
The District Court held that Hansler was not entitled to
leave or a cure period because her certification was “invalid”
and “negative on its face.” The Court reasoned that while
Hansler’s certification requested leave for one month, this
was not an “extended period of time,” and, therefore, her
condition did not qualify as a chronic serious health
condition. In other words, her certification was not merely
insufficient or incomplete—it demonstrated that she did not
have a chronic serious health condition.
Hansler does not argue on appeal that her certification
established the “extended period of time” requirement, and
8
we do not decide that issue here.3 Instead, Hansler maintains
she was entitled to the cure period set forth in the regulations
because the certification was insufficient, rather than negative
on its face. We agree.
The regulations make no reference to negative
certifications, the basis on which the District Court rejected
Hansler’s claim. Instead, they provide that whenever an
employer finds a certification “incomplete” or “insufficient,”
the employer shall so advise the employee and provide seven
days to cure the deficiencies. 29 C.F.R. § 825.305(c). A
negative certification is a judicially crafted concept with roots
in a decision from the Seventh Circuit Court of Appeals. See
Stoops v. One Call Commc’ns, Inc., 141 F.3d 309 (7th Cir.
1998). In Stoops, the employee’s physician provided a
medical certification stating that the employee was “not
3
A chronic serious health condition is one that, among other
things, “[c]ontinues over an extended period of time.” 29
C.F.R. § 825.102. Neither the Act nor the regulations provide
further clarity as to what “extended period of time” means.
We have found that a three-year duration for an employee’s
condition constitutes an extended period of time. See
Victorelli v. Shadyside Hosp., 128 F.3d 184, 189 (3d Cir.
1997). Other courts have held that chronic illnesses “must
exist for well more than a few weeks.” Taylor v. Autozoners,
LLC, 706 F. Supp. 2d 843, 852 (W.D. Tenn. 2010) (quoting
Flanagan v. Keller Prods., Inc., No. 00-542-M, 2002 WL
313138, at *7 (D.N.H. Feb. 25, 2002)). We will assume here,
and Hansler does not argue otherwise, that a condition lasting
for one month does not satisfy the “extended period of time”
requirement.
9
presently incapacitated and would not have to work
intermittently or on a reduced work schedule.” Id. at 311. The
Seventh Circuit described this as a “negative certification”
because a serious health condition is one that prevents an
employee from performing his job, but the employee’s
physician in Stoops explicitly stated that the employee could
perform his job functions. Id. at 312-13. “Where an employer
. . . requests from the employee and receives a physician’s
certification that indicates that an employee’s serious health
condition does not require him to miss work, the employer
may rely on that certification.” Id. at 313.
Following Stoops, several other Courts of Appeals
have discussed or alluded to negative certifications. In
Hoffman v. Professional Med Team, the employee, like the
one in Stoops, submitted a certification from a physician
stating she would not need to work intermittently or on a less-
than-full schedule as a result of her condition. Hoffman, 394
F.3d 414, 416 (6th Cir. 2005). The Sixth Circuit explained
that, “[t]o be valid, a certification must show that the
employee’s serious health condition makes her unable to
perform job functions.” Id. at 419. In Branham v. Gannett
Satellite Information Network, Inc., the Sixth Circuit referred
to a negative certification as one “indicating that [the
employee] does not have a serious health condition that
prevents her from performing her job.” 619 F.3d 563, 572
(6th Cir. 2010). Similarly, the First Circuit found that an
employer was justified in denying leave where the medical
certification stated that the employee was “not incapacitated”
and “disavowed the need for any leave.” Tayag v. Lahey
Clinic Hosp., Inc., 632 F.3d 788, 793 (1st Cir. 2011).
10
We need not decide whether in certain circumstances a
medical certification may be negative because, even if we
were to agree with the cases finding negative certifications,
we still would not find those cases persuasive here. The
certifications in those cases contained affirmative statements
from the employees’ physicians that the employees would not
miss any work. To qualify for FMLA leave, however, an
employee must have a “serious health condition,” defined as a
physical or mental condition involving either inpatient care or
continuing treatment involving a period of incapacity or
treatment for incapacity. 29 U.S.C. §§ 2611(11),
2612(a)(1)(D); 29 C.F.R. § 825.102. Thus, the certifications
in those cases were facially incompatible with entitlement to
FMLA leave.
In contrast, the certification here—which requested
“intermittent leave at a frequency of 2 times weekly . . . and
lasting for a probable duration of one month,” App. 44—did
not on its face disqualify Hansler from FMLA eligibility.
Rather, because a “sufficient certification” for intermittent
leave under 29 U.S.C. § 2613(b) must address both “the
expected duration of the intermittent leave” and the “probable
duration of the condition,” and because the certification here
failed to specify whether the “probable duration of one
month” referred to the duration of the leave request, the
duration of the medical condition, or both, the certification
was not a “negative certification,” but was instead “vague,
ambiguous, or non-responsive,” meeting the definition of
“insufficient.” 29 C.F.R. § 825.305(c); see Kauffman v. Fed.
Express Corp., 426 F.3d 880, 886-87 (7th Cir. 2005)
11
(rejecting argument that certification was negative where
physician omitted the incapacity’s expected duration).4
In short, we hold today simply that when a
certification submitted by an employee is “vague, ambiguous,
or non-responsive” (or “incomplete,” for that matter) as to
any of the categories of information required under 29 U.S.C.
§ 2613(b), the employer “shall advise [the] employee . . .
what additional information is necessary to make the
certification complete and sufficient” and “must provide the
employee with seven calendar days . . . to cure any such
deficiency.” 29 C.F.R. § 825.305(c). The plain and mandatory
language of the statute and regulations requires no less.
Lehigh Valley’s additional arguments in support of a
negative certification are unavailing. It emphasizes that the
Medical Leave Act is not a forward-looking statute and “does
not require an employer to be clairvoyant.” Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 303 (3d Cir.
2012) (internal citations and quotation marks omitted).
According to Lehigh Valley, the short duration of Hansler’s
symptoms prior to her leave request provided no basis for it to
4
Lehigh Valley maintains that Hansler waived her argument
concerning a distinction between the length of the requested
leave and the expected duration of her condition by not
raising it before the District Court. See Brennan v. Norton,
350 F.3d 399, 415 n.12 (3d Cir. 2003). We disagree.
Although Hansler did not mention this nuance in 29 U.S.C.
§ 2613(b), she did argue generally, with a supporting case and
citations to regulations, that her certification was insufficient
and that Lehigh Valley should have given her a chance to
cure. Accordingly, Hansler has preserved the issue for appeal.
12
know that Hansler was suffering from a prolonged and
chronic illness. This argument would carry more force if the
issue at stake was notice. See Ross, 755 F.3d at 191-92
(explaining that to state a claim for interference, a plaintiff
must give notice to the defendant of his or her intention to
take leave). But no one disputes notice; Hansler provided
Lehigh Valley with a certification specifically requesting
leave under the Act. Thus, nothing in this opinion burdens
employers with the troublesome task of predicting, on their
own, the nature and trajectory of their employees’ illnesses.
The relevant question here is not whether Lehigh Valley
could have known Hansler was suffering from a chronic
condition at the time she requested leave; instead, it is
whether the certification was insufficient and/or incomplete.
Receipt of an insufficient or incomplete certification triggers
certain regulatory obligations on an employer that are
unrelated to its understanding of the employee’s health
condition.
Similarly, Lehigh Valley maintains that Hansler’s
post-termination diagnoses of diabetes and high blood
pressure foreclose her ability to establish that she had a
chronic serious health condition at the time she requested
leave. See Navarro v. Pfizer Corp., 261 F.3d 90, 96 (1st Cir.
2001) (explaining that operative time for determining whether
a particular condition qualifies as a serious health condition is
the time that leave is requested or taken). Again, this misses
the point. That Hansler was diagnosed with her illnesses after
she was fired does not affect the determination of whether her
medical certification was insufficient.
Having concluded that Hansler plausibly alleges her
certification was insufficient rather than negative, the next
13
question is whether she states a claim for interference under
the Act. Upon receipt of her insufficient certification, Lehigh
Valley was required to (1) advise Hansler that her
certification was insufficient, (2) state in writing what
additional information was necessary to make it sufficient,
and (3) provide her with an opportunity to cure before
denying her request for leave. See 29 C.F.R. § 825.305(c).
Lehigh Valley ignored these requirements and, instead,
terminated Hansler without first notifying her that the request
for leave had been denied. Assuming that she can prove she
was denied benefits to which she was otherwise entitled,
Hansler may premise her interference claim on these alleged
regulatory violations.
Though our Court has not yet ruled on this issue,
several district courts in this circuit have found interference
claims following an employer’s breach of its obligations
under § 825.305 where the employee established entitlement
or likely entitlement to FMLA benefits.5 The few relevant
5
See Patel v. Saint Vincent Health Ctr., No. 12-298, 2015
WL 630260, at *13 (W.D. Pa., Feb. 12, 2015) (“[Employer]
interfered with Plaintiff’s FMLA rights by not informing her
that the certification submitted by [the physician] was
incomplete and insufficient.”); Herco v. Se. Pa. Transp.
Auth., No. 10-796, 2011 WL 294493, at *3 (E.D. Pa. Jan. 25,
2011) (finding interference claim based on employee’s
submission of an incomplete medical certification and
employer’s failure to request additional information);
Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp. 2d
455, 466 (D.N.J. 2001) (“[T]ermination is not an appropriate
response for an inadequate certification. [The regulations]
14
decisions from the Courts of Appeals suggest that qualifying
employees who allege harm arising from the employers’
failure to provide a cure period may assert a cause of action
for interference. See Kauffman, 426 F.3d at 886-87; Darst v.
Interstate Brands Corp., 512 F.3d 903, 910 (7th Cir. 2008);
Sorrell v. Rinker Materials Corp., 395 F.3d 332, 337 (6th Cir.
2005).
Moreover, we find support for an interference claim
based on this Court’s precedent concerning notice
interference. In Conoshenti v. Public Service Electric & Gas
Co., the plaintiff’s claim was based on his employer failing to
advise him of his substantive rights under the Act in violation
of regulatory requirements.6 364 F.3d 135, 142 (3d Cir.
2004). The plaintiff there insisted that, if he had received the
necessary information, “he would have been able to make an
informed decision about structuring his leave and would have
structured it, and his plan of recovery, in such a way as to
preserve the job protection afforded by the Act.” Id. at 142-
43. We held this was a viable theory of recovery, explaining
that the plaintiff “will show an interference with his right to
provide[] that where an employer finds a certification
incomplete, it must give the employee a reasonable
opportunity to cure any deficiencies.”).
6
The regulations contain a number of provisions requiring
employers to provide employees with notice of their rights
and obligations. See generally 29 C.F.R. § 825.300. For
example, an employer covered by the Act must include a
notice in its employee handbooks explaining benefits and
leave rights. Id. § 825.300(a)(3).
15
leave under the FMLA . . . if he is able to establish that this
failure to advise rendered him unable to exercise that right in
a meaningful way, thereby causing injury.” Id. at 143. Put
another way, we found a cause of action for notice
interference in the event plaintiff was able to show prejudice
as a result of the violation. Id. at 144; see also Ruder v.
Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 394 (E.D. Pa.
2011) (finding interference claim where the defendant’s
failure to advise plaintiff of his eligibility to take leave
“rendered him unable to exercise his rights”); Schaar v.
Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 496-
97 (E.D. Pa. 2010) (finding interference claim where plaintiff
alleged that “had she been informed that FMLA was an
option for her absence, she would have taken her absence as
FMLA leave”).
The logic of Conoshenti naturally extends to an
employer’s failure to comply with its regulatory obligations
following receipt of an insufficient or incomplete medical
certification. Just like employers must advise their employees
of their rights under the Act, 29 C.F.R. § 825.300, they also
must advise their employees of deficiencies in their medical
certifications and provide them with an opportunity to cure,
id. § 825.305(c). These modest burdens imposed on
employers help ensure that employees are equipped with at
least basic information about the Act’s requirements and have
an opportunity to exercise their rights in a meaningful way.
And to encourage employer compliance, the regulations
provide injured employees with a cause of action for
interference. See 29 C.F.R. § 825.220(b) (“Any violations of
the Act or of these regulations constitute interfering with,
restraining, or denying the exercise of rights provided by the
16
Act.”). If we were to find otherwise, employees would be left
without a remedy.
Based on the facts alleged in the complaint, we
conclude that Hansler states a claim for interference under 29
U.S.C. § 2615(a)(1). She alleges that, in violation of the
regulations, Lehigh Valley failed to identify deficiencies in
her medical certification and failed to provide her with an
opportunity to cure. Hansler alleges she was prejudiced by
these failures because, “[h]ad [Lehigh Valley] properly
requested that [her] physician provide more information to
show a serious health condition, [her] physician would have
been [in] a position to provide the full diagnosis of [her]
chronic health conditions.” App. 45. Instead of having the
chance to exercise her rights in a meaningful way and
demonstrate her entitlement to leave, Lehigh Valley fired her.
As such, Hansler sufficiently alleges she was prejudiced as a
result of Lehigh Valley’s regulatory violations. Indeed,
Lehigh Valley does not appear to dispute a finding of
prejudice, instead focusing its efforts on arguing that Hansler
was not entitled to a cure period in the first instance—an
argument we have rejected. Appellee Br. at 8 (“While it may
be true that, had Hansler been given more time, she would
have been able to offer additional information, this simply is
not relevant to whether Hansler was entitled, under the
FMLA regulations, to a cure period.”).
Not only is our conclusion dictated by precedent as
well as the statutory and regulatory text, but we believe the
cure period makes abundant sense in this context. Faced with
nascent symptoms from a yet-to-be diagnosed condition, an
employee’s physician may need some additional time to
provide the required elements of a sufficient certification,
17
including more specific information regarding relevant
medical facts and the probable duration of the condition, the
planned medical treatment, and the intermittent leave. 29
U.S.C. § 2613(b). As this case illustrates, for an employee
with an emerging condition, the difference between a medical
certification that supports leave and one that is deficient
might be a matter of days.7
B.
Hansler’s second claim is that Lehigh Valley
terminated her in retaliation for seeking leave. Retaliation
claims arise out of the Medical Leave Act’s prohibition on
employers “discharg[ing] or in any other manner
discriminat[ing] against any individual for opposing any
practice made unlawful.” 29 U.S.C. § 2615(a)(2); see 29
7
The sine qua non of eligibility for leave is not a diagnosis,
but a qualifying health condition to which a physician may
attest by providing the specified categories of information,
such as “appropriate medical facts . . . regarding the
condition,” the “probable duration of the condition,” and,
where intermittent leave is requested, “the expected duration
of the intermittent leave.” 29 U.S.C. § 2613(b). Where a
certification is incomplete or insufficient as to any one of the
categories, nothing in the statute or the implementing
regulations prevents the cure period from functioning as a
grace period for the employee to obtain such information; on
the contrary, they compel it. See 29 C.F.R. § 825.305(c). And
if the employee happens to learn the name of her condition in
the interim, that may well provide additional support for her
request, but it surely does not negate the validity of the grace
period.
18
C.F.R. § 825.220(c) (prohibiting employers from
“discriminating or retaliating against an employee or
prospective employee for having exercised or attempt[ing] to
exercise FMLA rights”). To state such a claim, Hansler must
allege (1) she invoked her right to leave, (2) she suffered an
adverse employment decision, and (3) the adverse action was
causally related to her invocation of rights. See Lichtenstein,
691 F.3d at 301-02.
The District Court dismissed Hansler’s retaliation
claim, finding she did not make a “valid” request for leave.
This conclusion flowed from our holding that “firing an
employee for a valid request for FMLA leave may constitute
interference with the employee’s FMLA rights as well as
retaliation against the employee.” Erdman v. Nationwide Ins.
Co., 582 F.3d 500, 509 (3d Cir. 2009). The District Court
reasoned that because her leave request was “premised upon
the existence of a serious chronic health condition and her
medical certification was a negative certification with respect
to such a condition, [Hansler’s] leave request was not a valid
request entitling her to FMLA leave and, accordingly, may
not form the basis for an FMLA retaliation claim.” Hansler,
2014 WL 1281132, at *13.
As we disagree with the underpinnings of this
conclusion—i.e., the certification was negative and Hansler
was not entitled to benefits under the Act—we hold that
Hansler’s claim should not be dismissed at this stage. Hansler
alleges she attempted to invoke her right to leave, she was not
advised of deficiencies in her medical certification, she was
not provided a cure period, and she was fired a few weeks
later as a result of her leave request. Through discovery,
Hansler might be able to show that Lehigh Valley had a
19
retaliatory motive and that the stated reason for termination
was pretextual. See Lupyan v. Corinthian Colls. Inc., 761
F.3d 314, 325-26 (3d Cir. 2014); Lichtenstein, 691 F.3d at
309-10.
III.
For the foregoing reasons, we reverse the order of the
District Court and remand for further proceedings consistent
with this opinion.
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