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Capps v. Mondelez Global, LLC

United States Court of Appeals, Third Circuit

January 30, 2017


          Argued July 12, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-14-cv-04331) District Judge: Honorable Gerald J. Pappert

          Christine E. Burke [ARGUED] Ari R. Karpf Karpf Karpf & Cerutti Counsel for Appellant

          Leslie M. Greenspan [ARGUED] Joe H. Tucker, Jr. Tucker Law Group Counsel for Appellee

          Jeremy D. Horowitz [ARGUED] Equal Employment Opportunity Commission Counsel for Amicus Curiae

          Before: FUENTES [*] SHWARTZ and RESTREPO, Circuit Judges.


          RESTREPO, Circuit Judge.

         Frederick Capps challenges the District Court's Order granting summary judgment in favor of Capps' former employer, Mondelez Global, LLC ("Mondelez"), one of the largest manufacturers of snack food and beverage productions in the United States. Specifically, Capps argues that the District Court erred in granting Mondelez's summary judgment motion on Capps' claims that Mondelez: (1) interfered with his rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; (2) acted in retaliation to Capps' proper use of FMLA leave; and (3) violated the Americans with Disabilities Act, as amended ("ADA"), 42 U.S.C. § 12101 et seq.

         For the reasons that follow, we affirm the District Court's Order granting summary judgment in favor of Mondelez. In so doing, we hold that an employer's honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim. We also confirm that, under certain circumstances, a request for intermittent FMLA leave may also constitute a request for a reasonable accommodation under the ADA, but under the circumstances in this particular case, even assuming, arguendo, such a request was made, there is a lack of evidence that Mondelez failed to provide any requested accommodation.

         I. Background

         Mondelez's predecessor, Nabisco, hired Capps in November 1989. At all relevant times to this action, Capps held the position of mixer, which required him to operate a mixing machine that makes dough.

         Mondelez has maintained a policy that an employee is entitled to FMLA leave for a "serious health condition of the employee that makes the employee unable to perform one or more of the essential functions of his/her position." (JA 451.) An employee may use intermittent FMLA leave when it is a "medical necessity, " and the employee must provide notice of the leave "as soon as practicable." (JA 451-52.)

         Any employee who wishes to take FMLA leave due to his own serious health condition must provide the company with a certification from his health care provider. Company policy also provides: "As with all communications with the Company, the submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination." (JA 452.)

         Mondelez also has a policy entitled "Dishonest Acts on the Part of Employees" ("Dishonest Acts Policy"), which is considered a "Major Rule." (JA 449, 457.) Violations of "Major Rules" are considered inexcusable offenses that "will result in immediate suspension pending investigation, which could lead to termination." (JA 449, 457.) Mondelez's Dishonest Acts Policy includes the warning that "THE COMPANY WILL NOT TOLERATE DISHONESTY ON THE PART OF ITS EMPLOYEES, WHETHER IT BE COMMITTED AGAINST THE COMPANY, ANOTHER EMPLOYEE, ITS CUSTOMERS, OR OTHERS EITHER DURING OR AFTER WORKING HOURS" and that "ANY EMPLOYEE FOUND GUILTY OF A DISHONEST ACT WOULD BE SUBJECT TO DISMISSAL." (JA 449 (emphasis in original).)

         Capps suffers with Avascular Necrosis ("AVN"), which was described by Aron Guttin, D.O., Capps' treating physician, as "a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells." (JA 312.) As a result of the AVN, Capps developed arthritis in both hips which necessitated bilateral hip replacement in or about 2003.

         He has experienced severe pain at times in the pelvic region, thighs and hips, sometimes lasting for days or weeks at a time. Therefore, he requested intermittent time off from work when flare-ups occurred. Capps was certified for intermittent FMLA leave following his hip replacements, and thereafter throughout his tenure at Mondelez, he was continuously recertified approximately every six months for intermittent FMLA leave for his condition until his employment was terminated in 2014.

         The certification supporting Capps' approved FMLA leave covering January 24, 2013 through July 23, 2013 was completed by Dr. Guttin who certified that Capps was unable to perform certain job functions as a result of his condition. Where the certification form required Dr. Guttin to "identify the job functions the employee is unable to perform, " Dr. Guttin responded that Capps "requires full bedrest during exacerbations." (JA 334.)

         Dr. Guttin further stated that "[t]his year [the episodes] have been more severe [and] more frequent than years prior" and that Capps "experiences temporary periods of inflammation that are debilitating and require anti-inflammatory medication and rest." (JA 334, 335.) Mondelez's third-party FMLA administrator, WorkCare, approved this request under the FMLA, and the approval noted that Capps "may need to be off work 1-2 times every month for a duration of up to 14 days per episode for incapacity and treatment appointments." (JA 342.)

         On Monday, February 11 and Tuesday, February 12, 2013, Capps took FMLA leave due to leg pain, and he returned to work for a full shift on Wednesday, February 13, 2013. Capps was scheduled to work on Thursday, February 14, 2013, but he called Mondelez's phone system and the FMLA message line on February 14th stating he would be late to work because of leg pain. Later that day, he again called the FMLA message line and Mondelez's phone system stating that he would be taking a full day of FMLA leave since the pain had not subsided. Dr. Guttin also signed Capps' FMLA certification form dated February 14th.

         Capps testified at his deposition that his wife was out of the country that week on a business trip and that because he didn't "know how to cook, " he had to "call out or go out" for his meals. (JA 279.) Capps further testified that at approximately 6:30 p.m. on the 14th he drove to a local pub, which was not more than one and a half miles from his home, to "get something to eat" (JA 279). According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half (2 ½) to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home.

         Capps testified that after leaving the pub, at or around 9:00 p.m. he was stopped by police. The Bensalem Township police drove Capps to the hospital for a blood test, which resulted in a reading of a blood alcohol concentration level of 0.339% - more than four times the legal limit in Pennsylvania. Capps testified that he was released from jail early the next morning on Friday, February 15, 2013. He further testified that he woke up on the 15th "probably about 10, 11 o'clock" and his "legs were bothering [him] again." (JA 46.) He stated that he "just hung around the house, just wasn't feeling good" and "took some Aleve again." (JA 46.)

         Capps was scheduled to begin his shift that Friday afternoon at 1 p.m. on February 15th. However, on the 15th, he called Mondelez's phone system and the FMLA message line indicating that he would be using FMLA leave due to leg pain.

         Capps returned to work on Monday, February 18, 2013. Upon returning to work, he performed the same work and received the same salary and benefits as before taking FMLA leave. He did not report his arrest to anyone at Mondelez; nor was he required to under Mondelez's policies. Upon recertification, Capps was approved for FMLA leave from July 31, 2013 through January 30, 2014.

         On August 7, 2013, Capps pled guilty to the charge of Driving Under the Influence of Alcohol ("DUI"), and he served 72 hours in jail immediately following the guilty plea hearing. His sentence also included probation, costs and fines, and suspension of his driver's license.

         In early 2014, William Oxenford, a Human Resources ("HR") Manager at Mondelez, became aware of Capps' DUI conviction and sentence by finding in Oxenford's company mailbox a newspaper article reporting the same. Oxenford asked Barbara McAvoy, an employee in the HR department, and Nancy Pace, administrative assistant to the plant manager, to investigate Capps' attendance ...

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