                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2008

Sconfienza v. Verizon PA Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2498




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                                                        NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ____________

                              No. 07-2498
                             ____________

                        TERRI SCONFIENZA,

                                   Appellant,


                                   v.

                  VERIZON PENNSYLVANIA INC.
                  d/b/a Verizon; LESLEE SPARROW,

                                   Appellees.
                             ____________

             On Appeal from the United States District Court
                 for the Middle District of Pennsylvania
                         (D.C. No. 05-cv-00272)
              District Judge: Honorable James M. Munley
                             ____________

               Submitted Under Third Circuit LAR 34.1(a)
                          November 18, 2008

Before: SCIRICA, Chief Judge, FUENTES and HARDIMAN , Circuit Judges.

                      (Filed: December 05, 2008)

                             ____________

                      OPINION OF THE COURT
                           ____________
HARDIMAN, Circuit Judge.

       Terri Sconfienza appeals from an order of the District Court granting summary

judgment to her employer, Verizon PA Inc., on four claims: (1) interference with her

FMLA rights; (2) discrimination due to the wrongful denial of her request for

accommodation; (3) harassment; and (4) retaliation.1 Our review of the District Court’s

grant of summary judgment is plenary. Bowers v. NCAA, 475 F.3d 524, 535 (3d Cir.

2007). We will affirm.

                                             I.

       Because we write exclusively for the parties, we will revisit the facts and

procedural history only briefly. The facts, in the light most favorable to Sconfienza,2 are

as follows. Sconfienza has worked for Verizon for over 15 years, and for the last 10

years she has suffered from debilitating migraines. Sconfienza v. Verizon PA Inc., 2007

Westlaw 1202967, at *1 (M.D. Pa. Apr. 23, 2007). Verizon required employees

requesting FMLA leave to submit a certification to the Absence Reporting Center (ARC).

Id. If an employee suffered from a condition that would require intermittent leave over a

prolonged period of time, she was required to fill out an initial FMLA certification signed

by a physician, for any subsequent absence, the employee was required only to complete a

       1
        The District Court also granted summary judgment in favor of Defendant Leslee
Sparrow. No appeal was taken on that judgment.
       2
          In evaluating the District Court’s grant of summary judgment, we “take the facts
in the light most favorable to the nonmoving party . . . and draw all reasonable inferences
in [her] favor.” Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir. 2001).

                                             2
personal certification form. Id. Verizon monitored its employees’ absences through the

Regional Attendance Plan (RAP), under which “chargeable” absences counted against a

worker’s record and could lead to disciplinary action. “[A]bsences certified as covered

by the FMLA were not considered chargeable and thus not subject to the program.” Id.

The RAP consists of five “steps” of increasingly severe discipline. Id.

       Sconfienza filed with the ARC a pre-approved FMLA certification for intermittent

leave from April 2003 to April 2004 because of migraine headaches. In 2003, she was

absent 13 times, nine of which fell within this period. Because of these absences,

Sconfienza was disciplined and moved to Step 1 of the RAP. At all relevant times,

Sconfienza has been, and remains to this day, employed by Verizon.

                                            II.

       Sconfienza first claims that Verizon interfered with her FMLA rights in violation

of 29 U.S.C. § 2615 when she was denied leave on 13 occasions in 2003, and when her

doctor was harassed by Verizon’s doctor. For Sconfienza to prevail on her interference

claim, she must prove that: (1) she was entitled to FMLA benefits; (2) Verizon violated

§ 2615 by “interfering with, restraining, or denying her exercise of FMLA rights;” and (3)

she was prejudiced by the interference. Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 89 (2002).

       Although it is undisputed that Sconfienza had on file an approved FMLA request

for intermittent leave because of her migraines, Sconfienza’s brief is devoid of any claims



                                             3
regarding the completion of any personal certification forms. Instead, she claims that the

forms were sent to the wrong address and that Verizon refused to resend them. Verizon,

on the other hand, claims that Sconfienza refused to change her address with the

administrator after being informed that only she had the power to make an address

change. The burden was on Sconfienza to ensure that she complied with the procedures,

so long as she had proper notice of the filing requirements. See 29 C.F.R.

§§ 825.301(b)(1)(ii), 825.305(a), (d). Nowhere in the record does Sconfienza claim that

she was unaware of this process. Because Sconfienza never filed the appropriate personal

certifications, she was not entitled to FMLA leave, and thus summary judgment was

proper on the interference claim.

                                             III.

         Sconfienza claims that Verizon failed to accommodate her disability in violation of

the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act

(PHRA). To establish a prima facie case, Sconfienza must demonstrate that she: (1) is a

disabled person within the meaning of the ADA; (2) is otherwise qualified to perform the

essential function of the job, with or without reasonable accommodation; and (3) has

suffered an adverse employment decision. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.

1996).

         We need not discuss the burden shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973), because we find that the District Court correctly



                                              4
concluded that Sconfienza did not establish her prima facie case. Sconfienza claimed to

have suffered adverse employment actions when she: (1) was moved to Step 1 of the

RAP; (2) was moved to Step 2 of the RAP; and (3) had to use personal days in lieu of

FMLA leave. We disagree.

       First, although Sconfienza has provided sufficient proof that she was moved to

Step 1 of the RAP, Step 1 cannot be considered an adverse employment action. To pass

the summary judgment standard, the adverse employment action must be sufficiently

severe and concrete to affect the “compensation, terms, conditions, or privileges” of

employment. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir. 1997).

Moreover, “[f]ormal reprimands that result in a notation in an employee’s personnel file

could be sufficiently concrete, but harsh words that lack real consequences are not.” Id.

Thus, a notation in an employee’s record could qualify as an “adverse action” if it affects

the “compensation, terms, conditions or privileges” of employment. See id.

       Here, Step 1 was only a warning about future penalties, which had no adverse

impact on Sconfienza’s employment, did not affect her compensation, and did not impede

her ability to receive a transfer or promotion. Although the move to Step 1 initiated the

progressive discipline process, Sconfienza’s employment was not impacted by the formal

warning and she did not receive any additional discipline after the move to Step 1. She

remains employed by Verizon in the same position and with the same opportunities and

benefits as if the move to Step 1 had not occurred. For these reasons, we find that the



                                             5
move to Step 1 did not constitute an adverse employment action and thus summary

judgment was appropriate.

       Second, contrary to her allegations, we find that Sconfienza was never moved to

Step 2 of the RAP. Sconfienza claims she was moved to Step 2 after being disciplined

for her absences during her pre-approved FMLA leave. Verizon claims that Sconfienza

was never moved to Step 2 and remained at Step 1 at all times. At Step 2, Sconfienza

would have been ineligible to be transferred or to receive a promotion, and would receive

a lower rating on her performance reviews.

       When deciding a motion on summary judgment, “the non-moving party may not

rest on the mere allegations or denials of the adverse party’s pleading . . . but must set

forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

Sconfienza’s sole evidence is a document signed by her union representative stating that

she was moved to Step 2. Although Verizon admits that it created a document to move

Sconfienza to Step 2, it claims the document was never issued. Sconfienza’s supervisor

stated in her deposition that she did not issue the document. Moreover, an employee

discussion document described Verizon’s intention to place Sconfienza on Step 2, but

noted that “[e]mployee [sic] not advanced to Step 2, per Labor Relations contract. . . .

Discipline will be postponed while efforts are made to ensure employee is able to receive

FMLA paperwork.” Additionally, the Associate Performance Appraisal Plan covering

this period also shows that she was only on Step 1 of the RAP. Finally, Verizon argued



                                              6
that if Sconfienza had been placed on Step 2 in September 2003, she would have

remained on Step 2 at the end of 2003, but her year-end performance reviews placed her

on Step 1.

       Sconfienza claims that we should disregard her supervisor’s deposition because

she is an interested witness. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 149-51 (2000) (“When drawing all reasonable inferences in favor of the non-movant

the courts must disregard evidence the jury is not required to believe, including testimony

of interested witnesses.” ). Even if we did so, it would not render the summary judgment

improper. Sconfienza has offered no evidence to rebut Verizon’s evidence that the

document was prepared but never issued, or to rebut the documents showing that she was

on Step 1 at all times during 2003. At most, Sconfienza’s evidence shows that the

document was prepared and signed by the union representative.

       Finally, Sconfienza has failed to show an adverse employment action when she

used her personal days instead of FMLA leave. Sconfienza claims that any vacation time

she took after Verizon denied her requests for FMLA leave was related to her migraines,

and thus her use of vacation days was an adverse action resulting from Verizon’s denial.

She does not, however, offer any records to demonstrate dates when she used the leave in

question, nor has she produced any evidence that connects her use of vacation time to her

migraines. Sconfienza claims that she would offer a witness at trial to testify to these

matters. A motion for summary judgment, however, is decided on the evidence provided



                                             7
to the court at the time the motions are filed, not on evidence that the non-moving party

might produce later. See Fed. R. Civ. P. 56 (d) (establishing that summary judgment

should be granted “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law”). Because Sconfienza has offered no evidence to show the causal connection

between her use of personal time and her migraines, summary judgment was proper.

                                             IV.

       Sconfienza also claims that she was harassed under the ADA and PHRA. To

prevail on her ADA claim, she must show that:

              1) [she] is a qualified individual with a disability under the ADA; 2) she
              was subject to unwelcome harassment; 3) the harassment was based on her
              disability or a request for an accommodation; 4) the harassment was
              sufficiently severe or pervasive to alter the conditions of her employment
              and to create an abusive working environment; and 5) that [the employer]
              knew or should have known of the harassment and failed to take prompt
              effective remedial action.

Walton v. Mental Health Ass’n of SE Penn., 168 F.3d 661, 667 (3d Cir. 1999).

       Sconfienza contends that she was harassed when her co-workers delivered a “get

well” card to her house, and when Verizon’s doctor called Sconfienza’s doctor on

multiple occasions. We find that these incidents were not “sufficiently severe or

pervasive to alter the conditions of her employment and to create an abusive working

environment.” Walton, 168 F.3d at 667.



                                              8
       First, Sconfienza argues that she was subject to a “drive-by get well” in August

2005 following her gallbladder surgery, when her supervisors left a get-well card at her

front door without ringing her doorbell. We fail to see how leaving a card for an

employee who recently had surgery without knocking on her door or disturbing her is

sufficiently severe or pervasive to affect her employment conditions.

       Second, although the calls from Verizon’s doctor to Sconfienza’s doctor were

unprofessional, they did not harass Sconfienza. These conversations had no effect on

Sconfienza’s job performance, and the frustration they caused were visited upon her

doctor, not her. Her sole claim is that she had to apologize to her doctor for the

harassment. We find that this does not rise to a sufficient level to objectively alter the

conditions of her employment. Accordingly, summary judgment was proper on

Sconfienza’s harassment claims.

                                              V.

       Sconfienza also claims Verizon retaliated against her for taking FMLA leave. To

prove retaliation in violation of the FMLA, Sconfienza must prove that: (1) she took

FMLA leave, (2) she suffered an adverse employment decision, and (3) the adverse

decision was causally related to her leave. Conoshenti v. Public Serv. Elec. & Gas Co.,

364 F.3d 135, 146 (3d Cir. 2004).

       Again, Sconfienza has not shown that she suffered an adverse employment action

sufficient to sustain her prima facie case. The standard for an adverse actions is tied to



                                              9
the retaliatory conduct, not the basis for the underlying claim. Burlington N. & Santa Fe

Ry. v. White, 548 U.S. 53, 69 (2006). The anti-retaliation provisions do not confine the

actions and harms they forbid to those that are related to employment or occur at the

workplace. They “cover[] those (and only those) employer actions that would have been

materially adverse to a reasonable employee or job applicant. In the present context, this

means that the employer’s actions must be harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination.” Id.

at 57.

         Sconfienza claims the same evidence of adverse employment action as she did for

her discrimination and harassment claims: discipline by Verizon, behavior that forced her

to use vacation time, harassment of her doctor, placement on the RAP system, and

requirements that she fill out FMLA certifications for an illness she had already claimed.

As discussed above, these actions, whether considered individually or collectively, are

insufficient to create a triable issue.

         In addition, some of these claims should not have been brought in an action for

retaliation, but are more properly part of a discrimination or interference action, both of

which were rejected for the aforementioned reasons. For example, the use of personal

days is not a consequence of any alleged retaliatory action, but more properly part of a

discrimination or interference claim. The harassment of Sconfienza’s doctor does not rise

to the level of retaliation because it was a request for information, and not a response to



                                             10
the request for FMLA leave. The requirement that she fill out new paperwork, and the

denial of her claim are not retaliatory actions and are more appropriately analyzed as an

interference with her FMLA rights. For these reasons, Sconfienza’s retaliation claims

were properly dismissed on summary judgment.

                                            VI.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            11
