                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4829




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-4829


                      RAY A. PARKER; CAULETTE PARKER


                                           v.

                         VERIZON PENNSYLVANIA, INC.;
                            KIMBERLY K. ONESKO;
                               GEORGE ONESKO

                                        Ray A. Parker,
                                            Appellant




                     Appeal from the United States District Court
                       For the Western District of Pennsylvania
                            (D.C. Civil Action No. 07-00435)
                    District Judge: The Honorable Arthur J. Schwab


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 2, 2008


                  Before: AMBRO and GREENBERG, Circuit Judges
                             O’NEILL * , District Judge




      *
       The Honorable Thomas N. O’Neill, Jr., Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
                               (Opinion filed February 4, 2009)


                                           OPINION


O’NEILL, District Judge

          Appellant Ray A. Parker appeals from an order granting summary judgment in

favor of appellee Verizon Pennsylvania Incorporated on his employment discrimination

and retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101, et seq., and his interference and retaliation claims under the Family Medical

Leave Act (FMLA), 29 U.S.C. §§ 2601, et seq.1 For the following reasons, we will

affirm.

                                               I.

          Because we write only for the parties, our factual summary is brief. These facts

are viewed in the light most favorable to Parker, who was hired in November 2003 to

work in Verizon’s Robinson Township Call Center as a Customer Sales and Service

Consultant. His primary job duty was to answer telephone calls from Verizon customers

with service or billing issues and enter the relevant information into a computer.

          In August 2004, Parker’s treating physician, Dr. Kamlesh B. Gosai, diagnosed him

with sarcoidosis, an autoimmune disease causing inflamation of the lungs, and pulmonary

fibrosis, the formation of scar tissue in the lungs creating an inability to exchanges gases

          1
        The District Court dismissed without prejudice Parker’s state law claim of trespass but
the dismissal of this claim is not an issue on appeal.

                                                2
resulting in hypoxemia. This condition affected Parker’s ability to breathe and talk.

       This same month, he began his first of three short-term disability leaves. He

returned in December 2004 to the same job. He began his second short-term disability

leave shortly thereafter and returned to work in February 2005.

       Prior to Parker’s return in February 2005, Dr. Gosai sent a letter to Verizon 2

recommending that: (1) Parker be permitted to work a shorter work week and work day;

(2) Parker be assigned work that does not involve talking on the telephone; (3) Parker’s

commute be shortened; and (4) Parker initially work three days per week with one day off

in between each day. Onesko, an absence administrator, spoke to Parker about the

requested accommodations. Parker was given a reduced schedule of fewer hours each

day instead of working three days with a day off in between. Parker was placed in an

“off-line” position where he was required to input customer information into a database

but no external or internal customer contact was required. Verizon did not transfer Parker

to Verizon’s Greensburg or Uniontown facilities to accommodate a shorter commute

because it deemed the request unrelated to Parker’s ability to perform his job.

       Parker requested a transfer to a less physically demanding job in the spring of

2005. In May 2005, Parker learned of a position in the Greensburg office for employees

with medical restrictions that allowed customer contact but no sales. Parker contacted Dr.
       2
           As explained by appellants, Verizon contracts with MetLife to administer all employee
disability and restriction claims. Verizon defers to MetLife’s decisions with regard to any
restrictions which are placed on the employee’s ability to perform his or her job. Verizon
employees with medical problems are referred to MetLife, and MetLife gathers information on
the employee’s medical problem and conveys the employee’s restrictions to Verizon.

                                               3
Gosai, who changed Parker’s restrictions to allow customer contact with no sales. Parker

testified that this change was due to a slight stabilization of his condition.

       In November 2005, Parker was denied a scheduled pay raise. He filed a grievance

and received the pay raise.

       In December 2005, Parker began his third leave of absence and returned to work in

February 2006 with restrictions; he was not to talk on the telephone or to have customer

contact. Upon his return, Parker claims that Broggi yelled at him in front of co-workers

after learning of his restrictions and tried to force him to resign. Parker alleges that

Broggi yelled that “this is a call center and if you can’t take calls then we have nothing

for you to do.” He claims that Broggi repeatedly asked him if he was telling her that he

was resigning. When Parker told her that he did not intend to resign, Parker alleges that

Broggi said “if you’re not taking calls there’s no work for you to do here so you must be

telling me that you’re resigning.” Parker was again restricted from having customer

contact or sales.

       The next day Parker was assigned to the “off-line” group of restricted employees

that had been transferred to Verizon’s Washington, Pennsylvania facility, which was

closer to his home. A February 2006 email from non-decisionmaker Onesko to

decisionmaker Broggi and Nelson stated: “I see - attached below - that [Parker] has his

restrictions back. I really hate to send him to the Washington office, because he lives in

Bentleyville.” Onesko admitted that she made this comment because she was frustrated



                                               4
with Parker.

       In July or August 2006, Parker purchased and was constructing a ranch-style

modular home because of his difficulty in climbing stairs. During the construction,

Parker lived with his aunt whose home was three blocks from the site of his new home.

       On September 14, 2006, Parker called in sick at 7:45 a.m. He testified that he had

taken his medicine the night before and had nausea and diarrhea through the night.

Parker went to the construction site of his new home. His wife, Caulette Parker, had

taken a half-day off from work and construction workers and Caulette Parker’s father

were scheduled to be working on the house that day.

       Andrew Roberts saw Parker at the construction site and called his wife, Verizon

manager Debra Roberts, to inform her that he saw Parker unloading materials from a van.

Parker denied helping to move materials or doing work on the house. Debra Roberts

communicated her husband’s observations to Onesko and Susan Nelson, another absence

administrator. Onesko and Nelson decided that Onesko would conduct a home visit, and

Onesko asked her husband George Onesko to accompany her. Onesko observed Parker at

the construction site, and after conferring with Verizon Labor Relations Manager Cindy

Marinari decided to approach him. Onesko claims that she heard an electric saw being

used in the basement and that Parker came up from the basement perspiring and wiping

his hands on a rag. Onesko prepared a typed memorandum of the events that noted that

“[a]t this point the saw stopped running.” In their conversation, Parker told Onesko that



                                            5
he was feeling better but not well enough to go into work.

       On September 15, 2006, Parker was suspended from employment pending further

investigation of potential falsification of his medical condition. On September 26, 2006,

management employees Susan Nelson, Cindy Marinari, Rori Broggi and Michael Billups

decided to discharge Parker based on his misrepresentation of his health condition in

violation of Verizon’s Code of Business Conduct. Verizon’s Code of Business Conduct,

Section 3.3.1 Company Benefits, states:

       Verizon’s benefits plans and programs are provided as compensation and
       must be used honestly. You must not misrepresent your health status, your
       covered members, your beneficiaries, or any other facts, including reasons
       for absence, in order to claim benefits to which you, or someone else, are
       entitled.

Parker disagrees that he misrepresented his health condition. He also testified in his

deposition that he could not “think of any” instance where Verizon personnel refused to

discuss any reasonable accommodations with him.

       Parker filed a complaint with the United States District Court for the Western

District of Pennsylvania. On November 30, 2007, the District Court granted summary

judgment in favor of Verizon on all claims. The District Court held that Parker failed to

establish a prima facie case of disability discrimination under the ADA. The Court held

that Parker arguably established that he was disabled and a qualified individual but that he

“presented no evidence to create a material issue of fact that he suffered an adverse

employment action as a result of discrimination” by Verizon’s termination of his



                                             6
employment, its failure to accommodate his disability or its failure to engage in the ADA

interactive process in good faith. Despite finding that Parker failed to make a prima facie

showing, the District Court alternatively found that Parker failed to present sufficient

evidence that Verizon’s reason for discharging him was pretextual. The Court also held

that Parker failed to establish a prima facie case of retaliation because he failed to present

sufficient evidence of a causal link between his protected activity and his termination.

The Court held that Parker’s FMLA interference claim failed because he presented no

evidence that Verizon interfered with his FMLA rights and Verizon was more than

reasonable in its accommodation of his conditions. Finally, the Court dismissed the state-

law trespass claim without prejudice.

       Parker thereafter timely appealed.

                                              II.

       The District Court had jurisdiction over this diversity action under 28 U.S.C.

§ 1331. We have jurisdiction over the final order of the District Court pursuant to 28

U.S.C. § 1291.

       We exercise plenary review over the District Court’s decision to grant summary

judgment. NBT Bank Nat’l Assoc. v. First Nat’l Comm. Bank, 393 F.3d 404, 409 (3d

Cir. 2004). “Affirming the grant of summary judgment is proper where there are no

genuine issues of material fact and the moving party is entitled to judgment as a matter of

law.” Id. (citation omitted). We resolve all factual doubts and draw all reasonable



                                              7
inferences in favor of the nonmoving party. See DL Res. Inc. v. FirstEnergy Solutions

Corp., 506 F.3d 209, 216 (3d Cir. 2007).

                                              III.

       Parker alleges that Verizon discriminated against him under the ADA by

discharging him and by failing to engage in the interactive process 3 and under the FMLA

by interfering with his rights when it terminated him rather than restoring him to his

position after he took FMLA leave. Parker also alleges that Verizon discharged him in

retaliation for engaging in protected activity under the ADA and FMLA.

A.     Parker’s Discrimination and Retaliation Claims Involving his Termination

       We apply the familiar burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), to discrimination and retaliation claims under the

ADA and the FMLA. Under this scheme: (1) plaintiff bears the burden of establishing a

prima facie case of discrimination; (2) the burden of production then shifts to defendant

to articulate a legitimate, nondiscriminatory reason for the adverse employment action;

and (3) if defendant meets its burden of production, plaintiff must prove by a

preponderance of the evidence that defendant’s proffered reason was a pretext for

       3
          Parker has not appealed the District Court’s grant of summary judgment in favor of
Verizon for his ADA discrimination failure to accommodate claim. His brief does not argue this
claim. Instead, the ADA discrimination section of his brief argues only that Verizon failed to
engage in the interactive process in good faith and that his termination was pretextual.
Therefore, this issue has been waived on appeal and we need not consider it. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993), holding that a failure under Federal Rule of
Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a) to set forth
the issues raised on appeal and to present an argument in support of those issues in an opening
brief results in waiver of the issues on appeal.

                                               8
discrimination. McDonnell Douglas, 411 U.S. at 802.

       Assuming that Parker established a prima facie case for his ADA and FMLA

discrimination and retaliation claims involving his employment termination,4 Verizon met

its burden of demonstrating a legitimate, nondiscriminatory justification for Parker’s

discharge with evidence that Parker was terminated for misrepresenting his health status

in violation of Verizon’s Code of Business Conduct. See McDonnell Douglas, 411 U.S.

at 802; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Parker argues that this

justification is pretext for discrimination.5 McDonnell Douglas, 411 U.S. at 804.

       4
          Although the District Court found that Parker did not establish a prima facie case for
these claims, for Parker’s ADA discrimination claim it alternatively considered whether Parker
established that Verizon’s reason for Parker’s termination was pretextual. Parker alleges that the
evidence of pretext he produced for his ADA discrimination claim also applies to his other
claims. Because the District Court would have been justified in granting summary judgment on
each claim involving his termination on the ground that Parker failed to establish proof of
pretext, we will address these claims together at the pretext stage. See Dorsey v. Pittsburgh
Assoc., 90 Fed. Appx. 636, 637 (3d Cir. 2004), affirming the District Court’s opinion but on
alternative pretext grounds, not the failure to establish a prima facie case grounds the District
Court found. Parker’s FMLA interference claim and ADA failure to engage in the interactive
process claim will be addressed separately, as these claims do not concern Parker’s termination.

       5
           Parker argues that Verizon waived its right to move for summary judgment on his ADA
retaliation claim because it was raised for the first time in Verizon’s reply brief to the District
Court. Parker concedes that the same evidence of pretext applies to his ADA retaliation claim as
his FMLA retaliation claim and therefore he has not been prejudiced even if Verizon’s motion
did not clearly argue the ADA retaliation claim when it moved for summary judgment on all of
his claims. Moreover, Parker filed a sur-reply brief which addressed this issue. See Salazar v.
City of Phila., 2007 WL 1847402, at *1 n.5 (E.D. Pa. June 25, 2007), holding that even having
the opportunity to file a sur-reply is sufficient to allow consideration of a claim first briefed in a
reply.

        Additionally, Parker’s claim that the District Court did not properly address this claim in
its opinion fails. In discussing retaliation, the District Court mentioned that Verizon “had been
accommodating Parker’s alleged disabilities for approximately two years prior to his

                                                  9
       To show pretext, Parker must present “some evidence . . . from which a factfinder

could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2)

believe that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer's action.” Fuentes, 32 F.3d at 764-65; see also Torre

v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994). To discredit the proffered reason, Parker

cannot simply show that the employer's decision was wrong or mistaken but must

demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions in the employer's proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them “unworthy of credence” and hence infer

that the employer was not actually motivated by its proffered nondiscriminatory reason.

Fuentes, 32 F.3d at 765, citing Ezold v. Wolf, Block, Shorr & Solis-Cohen, 983 F.2d 509,

531 (3d Cir. 1992). To show that discrimination was more likely than not a motivating or

determinative cause of Verizon’s action, Parker “must point to evidence with sufficient

probative force” for a factfinder to make this conclusion; i.e. that Verizon has previously

discriminated against him, that Verizon has discriminated against other persons within

Parker's protected class or within another protected class or that Verizon has treated more

favorably similarly situated persons not within the protected class. Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998).


termination.” Although the retaliation section’s analysis was brief and the ADA retaliation claim
appears to be integrated with the FMLA retaliation claim, Parker offered identical evidence for
both claims and the overall opinion from the District Court therefore establishes that Parker’s
ADA retaliation claim fails.

                                               10
       Parker agues that the following evidence supports his contention that Verizon’s

justification is pretext for all of his claims: (1) his denial that he misrepresented his

health on September 14, 2006 or did any work on his home that day; (2) the inconsistency

between Onesko’s accounts of events in her memorandum after the incident and in her

deposition testimony regarding when the saw stopped running; (3) the decisionmakers not

having specific information regarding Parker’s illness to know whether he misrepresented

his health and not consulting any health care providers on the issue; (4) the policy that he

was expected to stay home while on FMLA leave never being communicated to him; (5)

the admission by Onesko in her deposition that she stated that she “hated” to transfer

Parker to the Washington office because she was frustrated with Parker’s restrictions; (6)

the alleged incident where Broggi yelled at him and tried to force him to resign because

of his restrictions in February 2006; and (7) the scheduled pay raise denied to him after he

disclosed his condition which he had to file a grievance to get.

       First, Parker attempts to discredit Verizon’s reason for discharging him by denying

that he misrepresented his health condition on September 14, 2006 and that he did any

work at the construction site of his home. However, the question is not whether

Verizon’s decision was wrong or mistaken but whether Verizon acted with discriminatory

animus. Geddis v. Univ. of Del., 40 Fed. Appx. 650, 652 (3d Cir. 2002). Parker’s

continued denial that he misrepresented his health is insufficient to discredit Verizon’s

reason for firing him; he must instead demonstrate weaknesses, implausibilities,



                                              11
inconsistencies, incoherencies or contradictions in this reason to permit a reasonable jury

to find Verizon’s justification unworthy of credence. Fuentes, 32 F.3d at 765. He has not

presented such evidence. His denial that he preformed any work while at the construction

site does not contradict Verizon’s decision that he misrepresented his health by claiming

he could not be at work but could be at the construction site of his home. Parker does not

deny being at the construction site on September 14, 2006. Thus, his denial that he

misrepresented his health condition and that he worked at the construction site is not

sufficient evidence to discredit Verizon’s reason for his termination. Any material issue

that the evidence of his denial creates goes solely to whether the decision was wrong, not

discriminatory.

       Second, Parker argues that Verizon proffered “inconsistent” justifications for his

discharge because Onesko’s account of when the saw stopped running in her

memorandum differed from her deposition testimony. Parker alleges that in the typed

memorandum after the incident Onesko stated the saw stopped running after Parker came

up from the basement and that in her deposition Onesko stated the saw stopped running

before Parker came up from the basement. While it is true that inconsistency in the

employer’s reason is indicative of pretext, see, e.g., Fuentes, 32 F.3d at 764, Verizon's

justification has not been inconsistent. When Verizon fired Parker, it provided the

justification that it was because he misrepresented his health condition in violation of

Verizon’s Business Code of Conduct. Parker took FMLA leave because he was too ill to



                                             12
work but spent the day at a construction site with his wife, father-in-law and contractors.

Verizon has never provided a different reason; the reason has remained consistent.

       Parker argues that, even if Verizon’s reason was not inconsistent because of

Onesko’s alleged inconsistent statements, Kowalski v. L & F Prod., 82 F.3d 1283 (3d Cir.

1996), supports his contention that Onesko’s alleged inconsistent statements made

Verizon’s reliance on Onesko’s observations to justify Parker’s termination pretextual. In

Kowalski, this Court held that the “facial accuracy and reliability of the [investigative]

report is probative of whether [the employer] acted in good faith reliance [on its]

conclusions: the less reliable the report may appear, the greater the likelihood that [the

employer’s] reliance on it to justify” the adverse action was pretextual. See Kowalski, 82

F.3d at 1290. This Court found that there were “very serious questions regarding the

reliability of the investigator’s report” that raised a genuine issue of material fact

regarding whether the reason for Kowalski’s termination was pretextual. Id. Here, the

alleged inconsistency between Onesko’s accounts of when the saw stopped did not exist

at the time Verizon made its determination to discharge Parker; the allegedly inconsistent

statement arose from Onesko’s deposition which was after Verizon made the decision to

terminate Parker. Because Parker fails to show any inconsistencies in the alleged facts on

which Verizon relied to make its determination that casts doubt on Verizon’s reasoning,

this argument fails to support his contention that Verizon’s reasoning was pretextual.

       Third, Parker argues that Verizon’s reason should be discredited because none of



                                              13
the decisionmakers had specific information regarding Parker’s illness sufficient to

determine whether he misrepresented his health and they did not consult any health care

providers on the issue. Parker does not allege that the decisionmakers had no knowledge

of his health condition. Detailed information was not required for Verizon to determine

that Parker misrepresented his health condition by claiming that he was too sick for work

and then spending the day at the construction site of his home. Even if Parker showed

how more specific information would have demonstrated that Verizon’s decision was

wrong, no evidence exists that the decision was discriminatory. See Fuentes, 32 F.3d at

765. Thus, this evidence is insufficient to allow a reasonable jury to find Verizon’s

reasoning unworthy of credence.

       Fourth, Parker claims that Verizon’s reason is pretextual because an alleged

unwritten policy that he was expected to stay home during FMLA leave was never

communicated to him. However, Parker was discharged for violating Verizon’s Business

Code of Conduct by misrepresenting his health condition, not for leaving his home while

on FMLA leave. Thus, any failure to inform him of such a policy cannot establish pretext

because it is immaterial in determinating whether the policy he was fired for violating

was pretext for discrimination. Thus, this argument fails to support a claim that Verizon’s

reason was pretextual.

       Parker’s fifth, sixth and seventh claims shift his focus from discrediting Verizon’s

justifications to suggesting “invidious discriminatory reason[s that] more likely than not”



                                            14
motivated Verizon’s decision. Fuentes, 32 F.3d at 764. His fifth claim argues that

Onesko’s admission in her deposition that she stated in a February 2006 email that she

“hated” to transfer Parker to the Washington office, which was closer to his home

because she was frustrated with Parker’s restrictions, is sufficient evidence of pretext.

Parker’s sixth claim argues that his alleged exchange with Broggi in February 2006, in

which she yelled at him and tried to force him to resign because of his restrictions, also is

sufficient evidence of pretext.

       In considering whether stray remarks, such as the comments made by Onesko and

Broggi, are probative of discrimination, this Court has considered the following factors:

“(1) the relationship of the speaker to the employee and within the corporate hierarchy;

(2) the temporal proximity of the statement to the adverse employment decision; and (3)

the purpose and content of the statement.” Ryder v. Westinghouse Elec. Corp., 128 F.3d

128, 133 (3d Cir. 1997); see also Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,

1112 (3d Cir. 1997). “Stray remarks by non-decisionmakers or by decisionmakers

unrelated to the decision process are rarely given great weight, particularly if they were

made temporally remote from the date of decision.” Fuentes, 32 F.3d at 767, quoting

Ezold, 983 F.2d at 545.

       Assuming that the remarks by Onesko and Broggi were made as Parker alleges, the

remarks occurred seven months before his termination and did not directly relate to the

decision. Additionally, three other Verizon managerial employees were involved in the



                                             15
decisionmaking process with Broggi and there is no evidence that these three managerial

employees demonstrated discriminatory animis. In the months after the remarks and

before Parker’s termination, the record shows that Verizon continued to accommodate

Parker’s disability and his need for intermittent FMLA leave. For example, Verizon

allowed Parker to take intermittent leave, transferred him to the Washington office,

permitted reduced work hours and provided an off-line position for him while

maintaining his rate of pay and benefits. Even viewing the facts in the light most

favorable to Parker, we decline to depart from the principle that such stray remarks are

rarely given great weight when made temporally remote from the decision to terminate

Parker. See Keller, 130 F.3d at 1112, holding that where plaintiff's manager commented

during a meeting five months prior to the termination that plaintiff should hire additional

assistant managers if he was getting too old to travel, manager's comment could not

“reasonably be viewed as sufficient to prove by a preponderance of the evidence that age

was a determinative cause of Keller's subsequent termination”; Ezold, 983 F.2d at 545.

The record as a whole does not support that two stray comments made months before

Parker’s discharge, and followed by continued accommodations, support that Verizon’s

decision to discharge Parker was actually motivated by discriminatory intent and not the

reason proffered.

       Parker further argues that these stray comments support his contention that those

with discriminatory animus influenced or participated in the decision with the other



                                            16
managerial employees. It is true that, “[u]nder our case law, it is sufficient if those

exhibiting discriminatory animus influenced or participated in the decision to terminate.”

Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d. Cir. 2001),

citing Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). However, unlike the

cases on which he relies, Parker failed to develop evidence that the people who

influenced or participated in the decision to terminate him exhibited discriminatory

animus. As discussed above, a stray comment from Onesko and one from Broggi do not

sufficiently establish discriminatory animus as to find that Broggi’s involvement, or any

influence that Onesko may have had, tainted the decision to terminate Parker’s

employment for misrepresenting his health condition.

       Finally, Parker argues that his denial of a scheduled pay raise after he disclosed his

condition is sufficient evidence of pretext. The denial occurred in November 2005 and he

subsequently received the pay raise after filing a grievance. Parker has not provided

evidence to show that this denial was connected to his disability, let alone evidence to

establish that the denial shows a discriminatory animus that caused him to be terminated a

year later. Verizon was aware of restrictions that Parker requested in February 2005 and

was continuing to accommodate him in November 2005. Moreover, the accommodations

made by Verizon and the FMLA leave approved in the period between this denial and his

termination suggest the contrary. Therefore, this evidence, even when considered with

Parker’s other evidence, lacks the probative force to show that Verizon’s justification is



                                              17
pretextual.

       Parker presented insufficient evidence for a reasonable factfinder to conclude that

Verizon's legitimate, nondiscriminatory justification for his dismissal was pretextual.

Without evidence indicating that Verizon’s decision was based on a discriminatory

motive, its decision will not be judged even if the decision is wrong. See Ezold, 983 F.2d

at 527. In any event, Parker has not provided sufficient evidence for a reasonable

factfinder to discredit Verizon’s justification for Parker’s termination or to find that a

discriminatory animus was more likely than not a motivating factor in Verizon’s decision.

We will affirm the District Court’s dismissal of these claims on the alternative ground of

failing to provide sufficient evidence that Verizon’s legitimate, nondiscriminatory

justification for his discharge was pretextual.

B.     Parker’s ADA Failure to Engage in the Interactive Process Claim

       Parker alleges that the District Court erred in finding that he did not establish a

prima facie case that Verizon failed to engage in the ADA interactive process in good

faith. The District Court held that Parker did not present evidence to establish that

Verizon failed to engage in the interactive process and that in fact evidence of the

accommodations afforded to Parker supported the contrary.

       The ADA prohibits “covered employers from discriminat[ing] against a qualified

individual with a disability because of the disability of such individual in regard to . . .

hiring, advancement, or discharge[.]” 42 U.S.C.A. § 12112. As we noted in Jones v.



                                              18
United Parcel Service, 214 F.3d 402 (3d Cir. 2000), the EEOC’s interpretive guidelines

state that once the qualified employee “has requested provision of a reasonable

accommodation, the employer must make a reasonable effort to determine the appropriate

accommodation . . . through a flexible, interactive process that involves both the employer

and the [employee].” Jones, 214 F.3d at 407, citing 29 C.F.R. Pt. 1630, App. § 1630.9, at

361. As previously noted, discrimination claims under the ADA are evaluated under the

McDonnell Douglas burden-shifting framework. 411 U.S. at 802.

       To establish a prima facie case “that an employer failed to participate in the

interactive process, a disabled employee must demonstrate: (1) the employer knew about

the employee's disability; (2) the employee requested accommodations or assistance for

his or her disability; (3) the employer did not make a good faith effort to assist the

employee in seeking accommodations; and (4) the employee could have been reasonably

accommodated but for the employer's lack of good faith.” Taylor v. Phoenixville Sch.

Dist., 184 F.3d 296, 319-20 (3d Cir. 1999). “Employers can show their good faith in a

number of ways, such as taking steps like the following: meet with the employee who

requests an accommodation, request information about the condition and what limitations

the employee has, ask the employee what he or she specifically wants, show some sign of

having considered employee's request, and offer and discuss available alternatives when

the request is too burdensome.” Id. at 317.

       Parker argues that the following evidence supports that Verizon failed to engage in



                                              19
the interactive process: (1) Verizon supervisors’ refusal to permit Parker to transfer to a

permanent position unless his restrictions were lifted; (2) Broggi’s alleged comment that

Parker had to resign after returning from leave with restrictions; (3) Verizon’s denial of

his request to park his car in a space located closer to the office; and (4) Parker and/or his

physician’s exclusion from a conversation that Onesko, Broggi and Nelson had regarding

the possibility of “downgrading Parker or having him undergo a functional capacity

evaluation.”

       When Parker requested accommodations to conform with the restrictions noted by

Dr. Gosai, Verizon accommodated him. Although Verizon did not conform with the

exact restrictions, it worked with Parker to provide accommodations and he challenged

only Verizon’s failure to limit his commute. However, Verizon’s failure to accommodate

Parker by limiting his commute was not required. See Kvorjak v. Maine, 259 F.3d 48, 53

(1st Cir. 2001), holding that “the [employer’s] decision to reject an accommodation based

on [the employee’s] commute does not demonstrate a disregard for its obligations under

the ADA”; LaResca v. AT&T, 161 F. Supp.2d 323, 333 (D. N.J. 2001), holding that

“commuting to and from work is not part of the work environment that an employer is

required to reasonably accommodate.”

       Parker claims that Verizon’s failure to accommodate him with a transfer to a

permanent position shows their bad faith in the interactive process. Verizon reassigned

Parker to an off-line position in consideration of his request for accommodation and the



                                              20
position did not change his benefits or pay. Verizon even stated it would work with

Parker to find a permanent position despite not being required under the ADA to provide

him with a permanent position when it found a temporary position to accommodate him

while his restrictions existed. See Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614

(3d Cir. 2006), holding that “[t]he ADA does not require an employer to create a new

position in order to accommodate an employee with a disability, or transform a temporary

light duty position into a permanent position.” By maintaining his salary and benefits

while providing him a position that addressed his restrictions, Verizon sufficiently

accommodated his needs and engaged in the interactive process with him to do so. Thus,

Verizon’s failure to transfer Parker to a permanent position fails to provide evidence for a

reasonable jury to find that Verizon failed to interact in good faith.

       Parker also argues that Broggi yelling at him, and stating that he had to resign

because there were no available positions for him with his restrictions, demonstrate

Verizon’s failure to engage in the interactive process. However, this single comment was

made immediately before Verizon transferred him to a position in the off-line group at the

facility closer to his home and therefore does not provide evidence for a reasonable jury

to conclude that Verizon failed to engage in the interactive process in good faith.

       Further, Parker argues that refusing him a parking space closer to the office

demonstrates Verizon’s failure to engage in the interactive process. Parker admitted that

he never made a request to park closer to the building to his managers. It appears he



                                              21
made the request to a temporary supervisor who did not refuse to discuss the request and

explained that the parking spaces were not for consultants. He had requested and

received accommodations before and therefore knew what needed to be done to make

such a request. Parker admitted in his deposition that he could not identify any request

for an accommodation that Verizon failed to address. His brief states that, when Verizon

placed him on the Medically Restricted Plan in March 2005, Verizon interacted with him

and asked if he could suggest any reasonable accommodations. Thus, the evidence shows

that Verizon was willing to and did interact with Parker to determine appropriate

accommodations when he made such requests.

       Finally, Parker argues that Verizon failed to engage in the interactive process by

not including him in a conversation about possible accommodations and evaluations.

However, nothing requires employers to include the employee and/or the employee’s

physician in every discussion of possible accommodations or evaluations as part of

engaging in the interactive process. Parker does not allege that Verizon excluded him

from other conversations. Because he alleges his exclusion from only this conversation

and fails to identify any request for an accommodation that Verizon did not address, this

argument fails.

       After reviewing all the evidence in the light most favorable to Parker, we find that

no reasonable jury could find that Parker requested an accommodation to which Verizon

failed to make a good faith effort to engage in the interactive process. We will affirm the



                                            22
District Court’s dismissal of this claim.

C.     Parker’s FMLA Interference Claim

       Parker alleges that Verizon interfered with his FMLA rights by failing to restore

him to his position after he took FMLA leave on September 14, 2006. The District Court

found that “Verizon [did not] in any way interfere[] with plaintiff’s exercise of his

benefits under the FMLA. To the contrary, [it found] that Verizon was more than

reasonable in its accommodation of plaintiff’s condition.”

       The FMLA grants eligible employees the right to take up to twelve workweeks of

leave in any twelve-month period if a “serious health condition . . . makes the employee

unable to perform the functions of the position of such employee.” 29 U.S.C. §

2612(a)(1)(D). The FMLA also provides that it shall be unlawful for an employer to

interfere with, restrain or deny an employee's exercise of or attempt to exercise that right.

29 U.S.C. § 2615(a)(1). Following a qualified absence, the employee is entitled to be

reinstated to the former position or an alternate one with equivalent pay, benefits and

working conditions. 29 U.S.C. § 2614(a)(1).

       To assert an interference claim, “the employee only needs to show that he was

entitled to benefits under the FMLA and that he was denied them.” Callison v. City of

Phila., 430 F.3d 117, 119 (3d Cir. 2005), citing 29 U.S.C. §§ 2612(a), 2614(a).6
       6
           “Under this theory, the employee need not show that he was treated differently than
others[, and] the employer cannot justify its actions by establishing a legitimate business purpose
for its decision.” Callison, 430 F.3d at 119-120. “An interference action is not about
discrimination, it is only about whether the employer provided the employee with the
entitlements guaranteed by the FMLA.” Id. at 120. “Because the FMLA is not about

                                                23
However, as we noted in Holpp v. Integrated Communications Corp., 214 Fed. Appx. 176

(3d Cir. 2007), the right to reinstatement

       does not entitle a restored employee to a right, benefit or position to which the
       employee would not “have been entitled had the employee not taken the leave.”
       29 U.S.C. § 2614(a)(3)(B). Thus, for example, if an employee is discharged
       during or at the end of a protected leave for a reason unrelated to the leave, there is
       no right to reinstatement. 29 C.F.R. § 825.216(a)(1).

Id. at 178-179, citing Conoshenti v. Public Service Elec. & Gas Co., 364 F.3d 135 (3d

Cir. 2004). To make out a claim for interference, a plaintiff must show that he is an

“eligible employee,” 29 U.S.C. § 2611(2), who took leave “for the intended purpose of

the leave,” 29 U.S.C. § 2614(a)(1), and whom the employer then denied a benefit as a

result of that leave, 29 U.S.C. §§ 2614(a)(3), 2615(a)(1). Thus, an employer can defeat

an interference claim by showing, among other things, that the employee did not take

leave “for the intended purpose.” See Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th

Cir. 2006). Nothing in the FMLA prevents employers from ensuring that employees who

are on leave from work do not abuse their leave. Callison, 430 F.3d at 121. The FMLA

does not shield an employee from termination simply because the alleged misconduct

concerns use of FMLA leave. See, e.g., Hoffmann v. Professional Med. Team, 394 F.3d

414 (6th Cir. 2005), holding that there was no FMLA violation where employee was

discharged for unprofessional conduct related to employer’s denial of FMLA leave. Just

as suspected fraud or violation of company policy would be a sufficient basis to discharge


discrimination, a McDonnell-Douglas burden-shifting analysis is not required.” Sommer v. The
Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006).

                                             24
an employee not on FMLA leave, it is a sufficient basis to discharge one who misuses

FMLA leave. Id.; see also Kariotis v. Navistar Intern. Transp. Corp., 131 F.3d 672, 681

(7th Cir. 1997); LeBoeuf v. New York Univ. Med. Ctr., 2000 WL 1863762, at *3 (S.D.

N.Y. Dec. 20, 2000), holding that “[w]here an employee is terminated because the

employer honestly believed that the employee was not using the leave period for its

intended purpose, an FMLA claim will not lie”; Connel v. Hallmark Cards, Inc., 2002

WL 1461969, at *2 (D. Kan. June 19, 2002), holding that employer who discharges

employee based on reasonable and honest belief that employee has been dishonest would

not be in violation of the FMLA even if its conclusion is mistaken.

       Parker has not shown that he is entitled to FMLA benefits because he has not met

his burden of showing that there is a genuine issue of material fact over the reason he was

not reinstated. He alleges that Verizon interfered with his FMLA rights by terminating

him instead of restoring him to his position after he took FMLA leave on September 14,

2006. Verizon has demonstrated that Parker was not terminated for his use, but rather his

misuse, of medical leave in violation of its Code of Business Conduct, which could have

been the case for any employee who dishonestly used Verizon’s benefits. See Edwards v.

Harleysville Nat. Bank, 2008 WL 4589729, at *5 (E.D. Pa. Oct. 14, 2008). Regardless of

Parker’s denial that he actually misrepresented his health condition, Verizon’s honest

suspicion that Parker misused his leave prevents it from being found liable for violating

the FMLA; Parker was not entitled to the right of reinstatement if Verizon honestly



                                            25
believed that he was not using FMLA leave for the intended purpose. Parker should not

automatically be granted a greater degree of protection from termination simply because

he happened to be using FMLA leave instead of sick leave. Id. The evidence shows that

Parker's employment would have been terminated because of his violation of company

policy regardless of the involvement of FMLA leave. See Holmes v. Pizza Hut of

America, Inc., 1998 WL 564433, at *7 (E.D. Pa. Aug. 31, 1998). Parker states that the

same arguments that he brought in his pretext claim apply to refute the reason that

Verizon provides for why he was not entitled to reinstatement. For the reasons stated

above, we also conclude here that none of Parker’s arguments create a genuine issue of

material fact that Verizon interfered with his right to reinstatement under the FMLA.

Thus, we will affirm the District Court’s dismissal of this claim.

       For the foregoing reasons, after viewing the evidence in the light most favorable to

Parker, we will affirm the order of the District Court dismissing all of Parker’s claims

against Verizon.




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