Paul Alkins v. Boeing Co ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1233
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PAUL ALKINS,
Appellant
v.
THE BOEING COMPANY
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-00763)
District Judge: Hon. Timothy J. Savage
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Submitted Under Third Circuit LAR 34.1(a)
September 22, 2020
Before: SMITH, Chief Judge, McKEE, and JORDAN, Circuit Judges.
(Filed September 23, 2020)
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OPINION
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
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Paul Alkins was fired from his job as a helicopter mechanic for The Boeing
Company (“Boeing”) when he did not return to work after a period of leave. He then
sued the company for violating the Family and Medical Leave Act (“FMLA”), claiming
that Boeing interfered with his rights under the FMLA and retaliated against him for
exercising those rights. We disagree, as did the District Court, and so will affirm.
I. BACKGROUND
Alkins went to work for Boeing in 2007. In 2012, struggles with drug addiction
and various mental illnesses, including depression, began to affect his work performance,
resulting in many infractions of Boeing’s attendance policies. After receiving written and
verbal warnings, Boeing fired Alkins on October 13, 2016 for violating those policies.
Nevertheless, the company placed Alkins’s discharge in abeyance six days later, after he
agreed to complete a substance abuse treatment program and submit to alcohol testing at
work for a three-year period. To begin that treatment program, Alkins was placed on
FMLA leave beginning October 20, 2016.
When Alkins came back to work on November 18, 2016, he signed a “Last
Chance Agreement” with Boeing, under which he agreed that he would be immediately
terminated if he had two attendance infractions before September 18, 2017. (App. at 116,
237.) The Last Chance Agreement required Alkins to work regularly, to arrive on time,
to call in and report absences and late arrivals, and to submit FMLA paperwork as
needed.
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When he returned to work, Alkins also participated in a “Rehab After Work”
program, where he received counseling for his substance abuse problem. (App. at 113.)
On January 19, 2017, apparently as a consequence of that problem, as well as mental
health concerns and a recent family trauma that Alkins suffered, his counselor told him
that he was unfit for duty. Accordingly, Alkins requested FMLA leave to begin the next
day, January 20, 2017. Upon receiving that request, the third-party administrator of
Boeing’s FMLA leave program, The Reed Group (“Reed”), acknowledged Alkins’s
request and sent him the appropriate documents to fill out to complete his application.
He did not return the required documents, but Reed approved his leave anyway. Reed
informed Alkins that his FMLA leave would expire on February 19, 2017 and that he was
expected to return to work on February 20, 2017. Alkins subsequently received several
further notifications from Reed informing him when he was expected to return to work.
Despite that, Alkins did not return to work on February 20, or any day thereafter.
Nor did he call in his absences, as he was required to do by the Last Chance Agreement.
On February 22, 2017, the third day after Alkins was supposed to return to work, Boeing
called Reed to confirm that Alkins had not asked for an extension of leave. Reed
confirmed that he had not. The next day, Boeing sent a courier to Alkins’s home to
inform him that, because of his attendance infractions, his employment was terminated.
That same day, Alkins’s union representative came to his house, and together, they
called Reed to express concerns about his termination. At that point, Alkins requested an
extension of his leave. On March 10, 2017, Reed approved the extension through
March 26, 2017, but Alkins was no longer employed when that approval was given.
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When it was clear he was truly terminated this time, Alkins filed a complaint
against Boeing under the FMLA, 29 U.S.C. § 2601 et seq., alleging interference with
FMLA rights and retaliation. In due course, Boeing filed a motion for summary
judgment, which the District Court granted. Alkins v. The Boeing Co., No. 19-763, 2020
WL 42753 (E.D. Pa. Jan. 2, 2020).
Alkins has timely appealed.
II. DISCUSSION1
Alkins says that Boeing interfered with his FMLA leave when it fired him on
February 23, 2017. He further argues that his termination was in retaliation for taking
FMLA leave. In response, Boeing says that it had no notice of his intention to extend his
FMLA leave when it fired him, so it could not have knowingly interfered with his FMLA
rights. It also maintains that the firing was based on Alkins’s violation of the Last
Chance Agreement.
A. Interference
To succeed on his interference claim under the FMLA, Alkins must prove that (1)
he is eligible for FMLA benefits; (2) Boeing is subject to the FMLA; “(3) [he] was
entitled to FMLA leave; (4) [he] gave notice to the defendant of his … intention to take
FMLA leave; and (5) [he] was denied benefits to which he … was entitled under the
1
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291. “It is well established that we employ a plenary standard in
reviewing orders entered on motions for summary judgment, applying the same standard
as the district court.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir.
2014).
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FMLA.” Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014). Here, the parties agree
that the first two elements of the test are met. Boeing, however, argues that Alkins was
not entitled to FMLA leave because he did not have a serious health condition, and that,
even if he did have such a condition, he did not give Boeing notice of his intention to take
FMLA leave.
The District Court and Boeing may be correct in saying that Alkins did not have a
serious health condition, see Alkins, 2020 WL 42735, at *4-5, but we do not need to
consider that point. It is enough to observe that Alkins indisputably did not give Boeing
notice of his intention to extend his FMLA leave before he was terminated on
February 23, 2017. He did not communicate with Boeing, or even with Reed, at all
between January 20 and February 23, 2017, nor did anyone acting on his behalf give
notice. When it made the decision to terminate him, all Boeing knew was that Alkins had
been required to report for work for the three days leading up to his termination but did
not do so, nor did he notify Boeing that he was unable to do so. Boeing even verified
with Reed that Alkins had not requested an extension of his FMLA leave, before it sent
him a letter of termination. The fact that Reed, unbeknownst to Boeing, approved
Alkins’s FMLA leave extension several weeks later does not change the fact that, at the
time of the adverse employment action, Alkins had not given Boeing notice of his
intention to extend his leave. His FMLA interference claim therefore fails.
B. Retaliation
Alkins also argues that Boeing fired him in retaliation for his taking FMLA leave
in January and February of 2017. “To succeed on an FMLA retaliation claim, a plaintiff
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must show that ‘(1) [ ]he invoked h[is] right to FMLA-qualifying leave, (2) [ ]he suffered
an adverse employment decision, and (3) the adverse action was causally related to h[is]
invocation of rights.’” Ross, 755 F.3d at 193 (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)). If the plaintiff makes a prima facie
showing of those factors, the employer must then “articulate some legitimate,
nondiscriminatory reason for its decision.” Lichtenstein, 691 F.3d at 302 (internal
quotation marks omitted). If the employer can do so, the burden then switches back to
the plaintiff to “point to some evidence, direct or circumstantial, from which a factfinder
could reasonably disbelieve [the employer’s] articulated legitimate reasons.” Id.
Boeing argues that Alkins cannot make a prima facie case of retaliation because he
cannot prove that his termination was causally related to the fact that he took FMLA
leave. It maintains that Alkins was fired because he violated the terms of the Last
Chance Agreement by incurring more than two attendance infractions before September
2017. In response, Alkins cites case law saying that a closeness in time between the
invocation of FMLA rights and an adverse employment action can create an inference of
causation. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007) (“To establish the requisite causal connection a plaintiff usually must prove either
(1) an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.”). Since summary judgment requires “all reasonable inferences be
drawn” in the favor of the non-moving party, Alkins argues that we should draw that
inference here. Id. at 270.
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 Assuming for the sake of argument that Alkins has established a causal
connection, it is undisputed that Boeing has provided a legitimate, non-retaliatory reason
for terminating him, namely his violation of the Last Chance Agreement. The only
evidence Alkins offers to demonstrate pretext is the fact that Reed later approved his
FMLA leave extension in March 2017. But the third-party administrator’s decision to
award Alkins leave after he had already been fired is, at most, a reflection of Alkins’s
health at the time. It in no way reflects a decision by Boeing to retaliate against Alkins
for taking leave, nor does it show that Boeing’s reason for firing Alkins was pretextual.
That Boeing waited to issue its termination notice until after verifying that Alkins was no
longer on leave indicates, if anything, Boeing’s willingness to accommodate Alkins’s
FMLA rights, not an attempt to retaliate against him for exercising them. So, Alkins’s
retaliation claim also fails.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment for Boeing.
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