                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna P. Becknauld,                            :
                              Appellant        :
                                               :
               v.                              :
                                               :
Commonwealth of Pennsylvania,                  :   No. 678 C.D. 2016
Department of Agriculture                      :   Argued: December 12, 2016



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: January 4, 2017

               Donna P. Becknauld (Becknauld) appeals from the Dauphin County
Common Pleas Court’s (trial court) March 31, 2016 order granting the
Commonwealth of Pennsylvania, Department of Agriculture’s (Department) Motion
for Summary Judgment (Motion) and dismissing Becknauld’s Complaint against the
Department (Complaint). There are two issues before the Court: (1) whether the trial
court erred by dismissing Becknauld’s claim under the Family and Medical Leave
Act (FMLA)1 (Count II) because the Department only sought dismissal of
Becknauld’s claim under the Pennsylvania Human Relations Act (PHRA)2 (Count I);
and, (2) whether the trial court erred by failing to consider that Becknauld was
“disabled” or “regarded as” disabled within the meaning of the Americans with




      1
          29 U.S.C. §§ 2601-2654.
      2
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
Disabilities Act (ADA)3 Amendments Act of 2008 (ADAA)4 when the ADA and
PHRA are generally construed identically.5 After review, we affirm.
              Becknauld worked as an executive secretary for the Department from
June 2005 until her employment was terminated in the spring of 2009. Becknauld
was hired by the Department’s Executive Secretary for the State Horse Racing
Commission Ben Nolt (Nolt).              After the merger of the State Horse Racing
Commission and Harness Racing Commission, Michael Dillon (Dillon) became the
Department’s Acting Executive Secretary of the State Horse and Harness Racing
Commission and, thus, Becknauld’s new supervisor. In the fall of 2008, Becknauld
told Dillon about her medical conditions and he encouraged her to go to human
resources and discuss ADA and FMLA options. See Reproduced Record (R.R.) at
111a-112a.
              In January 2009, Becknauld submitted a Serious Health Condition
Certification (FMLA Certification) to the Department’s Human Resource Analyst
Wendy Warner (Warner). Becknauld’s FMLA Certification was returned to her

       3
          42 U.S.C. §§ 12101–12213.
       4
           The ADAA amended the definition of “disability,” making it easier for an individual to
establish that he or she has a disability under the ADA. Disability is further defined herein.
“Although . . . the ADAA[] made it easier to prove a disability, [Becknauld] must still show a
substantial limitation. See [Section 4a(1)-(2) of the ADA,] 42 U.S.C. § 12102(1)-(2).”
Cunningham v. Nordisk, 615 Fed.Appx. 97, 100 (3d Cir. 2015). Substantial limitation is also
further discussed herein.
        5
          Becknauld’s Statement of Questions Involved included two additional issues: (1) whether
the trial court erred in granting the Department’s Motion under the PHRA because Becknauld had
adduced sufficient evidence to establish a prima facie case for discrimination and there was
sufficient evidence that Becknauld was pretextually terminated because of her disability; and (2)
whether the trial court erred by granting summary judgment in the Department’s favor on
Becknauld’s FMLA claim because Becknauld had adduced sufficient evidence to establish that the
Department interfered with or retaliated against Becknauld for exercising her FMLA rights.
However, because those issues are not addressed in the Argument section of Becknauld’s brief, they
are waived. See In re Tax Claim Bureau of Lehigh Cnty. 2012 Judicial Tax Sale, 107 A.3d 853, 857
n.5 (Pa. Cmwlth. 2015) (“[W]here issues are raised in the statement of questions involved, but not
addressed in the argument section of the brief, courts find waiver.”).


                                                2
because it improperly listed two medical conditions (migraines and kidney disease).
Becknauld was told to resubmit the Certification with only one medical condition.
On March 27, 2010, Becknauld was notified that her employment would be
terminated effective April 3, 2009, due to her “continued failure to accurately provide
documents and support for Racing Commission meetings; issuing [sic] approvals to
the industry without proper ratification from the appropriate Commission; and failure
to submit leave for time away from work.” R.R. at 255a.                     On April 3, 2009,
Becknauld received a new FMLA Certification from her doctor, but she never
resubmitted the Certification.
              On September 28, 2010, Becknauld filed her Complaint with the trial
court alleging PHRA and FMLA violations. In Count I, Becknauld averred a PHRA
violation based on her disparate and negative treatment resultant of her disability.
Becknauld claimed in Count II, an FMLA-retaliatory employment termination
following her request for FMLA leave.               The Department filed an answer with
affirmative defenses. Becknauld responded to the Department’s affirmative defenses.
On June 30, 2014, the Department filed its Motion, a Statement of Material Facts and
a brief in support of its Motion. Becknauld filed a response to the Department’s
Statement of Material Facts and a Counterstatement of Material Facts, and the
Department responded thereto.
              On January 5, 2016, the trial court held a hearing. On March 31, 2016,
the trial court granted the Department’s Motion, entered judgment in the
Department’s favor and dismissed Becknauld’s Complaint. Becknauld appealed to
this Court on April 28, 2016.6 On May 2, 2016, the trial court issued an order


       6
         “Our standard of review of the trial court’s grant of summary judgment is de novo and the
scope of review is plenary.” Robertson v. Port Auth. of Allegheny Cnty., 144 A.3d 980, 983 n.2 (Pa.
Cmwlth. 2016). “In considering a motion for summary judgment, all well-pleaded facts in the non-
moving party’s pleadings must be accepted as true, and in order for the motion to be sustained, the
                                                3
directing Becknauld to file a Statement of Errors Complained of on Appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b) (1925(b) Statement). On May
23, 2016, Becknauld filed her 1925(b) Statement. On May 27, 2016, the trial court
filed its opinion.
              Becknauld first argues that the trial court erred by dismissing her FMLA
claim because the Department only sought dismissal of Becknauld’s PHRA claim.
Specifically, Becknauld contends that since the Department did not address the
FMLA claim in its Motion, she did not address the FMLA claim in her response. The
Department responds that its Motion and supporting brief referenced the FMLA and
the circumstances of Becknauld seeking to qualify for an FMLA claim.
              Initially, the Department’s Motion does not refer to either the PHRA or
the FMLA. The Motion, in its entirety, states:

              AND NOW this 30th day of June 2014, comes the
              [Department], by and through its counsel of record, Deputy
              Attorney General Timothy P. Keating who requests this
              Honorable Court to enter summary judgment in its favor
              and against [Becknauld] in the above[-]captioned matter
              pursuant to [Pennsylvania Rule of Civil Procedure No.]
              1035.2 given that there are no genuine issues of material
              facts which, as a matter of law, would preclude the entry of
              judgment in [the Department’s] favor, and against
              [Becknauld].

R.R. at 28a.     With respect to the Department’s supporting brief, the FMLA is
mentioned in the following sections: Introduction, see R.R. at 30a; Factual
Background, see R.R. at 32a-33a; Complaint, see R.R. at 7a; and Legal Discussion,
see R.R. at 39a-41a.       Those sections also discussed Becknauld’s PHRA claim.
Clearly, the Department was seeking dismissal of both claims/counts.




case must be clear and free from doubt.” Jones v. Chieffo, 664 A.2d 1091, 1093 n.2 (Pa. Cmwlth.
1995), aff’d, 700 A.2d 417 (Pa. 1997).
                                              4
             Becknauld further asserts that even if the Department moved for
dismissal of the FMLA claim, there was sufficient evidence in the record to permit
the claim to proceed to trial. The Department responds that Becknauld’s FMLA
claim fails as a matter of law because Becknauld did not have a serious health
condition.
             Initially,

             [u]nder the FMLA, an employer may not ‘interfere with,
             restrain, or deny the exercise of or attempt to exercise, any
             right provided under this subchapter.’ 29 U.S.C. §
             2615(a)(1). Additionally, ‘[it] shall be unlawful for any
             employer to discharge or in any other manner discriminate
             against any individual for opposing any practice made
             unlawful by this subchapter.’ 29 U.S.C. § 2615(a)(2). ‘The
             former provision is generally, if imperfectly, referred to as
             ‘interference’ whereas the latter is often referred to as
             ‘retaliation.’’ Lichtenstein [v. Univ. of Pittsburgh Med.
             Ctr.], 691 F.3d [294,] 301 [(3d Cir. 2012)] (citing Callison
             v. City of Phila[.], 430 F.3d 117, 119 (3d Cir. 2005)). In
             any event, . . . if [the employee] did not have a serious
             health condition, his claims fail as a matter of law.’ . . .
             Specifically, [Section 102(a)(1)(D) of the FMLA,] 29
             U.S.C. § 2612(a)(1)(D)[,] provides that an eligible
             employee shall be entitled to a total of twelve workweeks of
             leave during any 12-month period ‘[b]ecause of a serious
             health condition that makes the employee unable to perform
             the functions of the position of such employee.’

Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 195 (3d Cir. 2015). Section 101(11)
of the FMLA defines “[s]erious health condition” as “an illness, injury, impairment,
or physical or mental condition that involves-- (A) inpatient care in a hospital,
hospice, or residential medical care facility; or (B) continuing treatment by a health
care provider.” 29 U.S.C. § 2611(11) (emphasis omitted). The FMLA Regulations
provide, in relevant part:

             A serious health condition involving continuing treatment
             by a health care provider includes any one or more of the
             following:
                                          5
                (a) Incapacity and treatment. A period of incapacity of
                more than three consecutive, full calendar days, and any
                subsequent treatment or period of incapacity relating to the
                same condition, that also involves:
                ....
                [(5)] (c) Chronic conditions. Any period of incapacity or
                treatment for such incapacity due to a chronic serious
                health condition. A chronic serious health condition is one
                which:
                    (1) Requires periodic visits (defined as at least
                    twice a year) for treatment by a health care
                    provider, or by a nurse under direct supervision of
                    a health care provider;
                    (2) Continues over an extended period of time
                    (including recurring episodes of a single underlying
                    condition); and
                    (3) May cause episodic rather than a continuing
                    period of incapacity (e.g., asthma, diabetes,
                    epilepsy, etc.).
                ....
            (f) Absences attributable to incapacity under paragraph (b)
            or (c) of this section qualify for FMLA leave even though
            the employee or the covered family member does not
            receive treatment from a health care provider during the
            absence, and even if the absence does not last more than
            three consecutive, full calendar days. For example, an
            employee with asthma may be unable to report for work due
            to the onset of an asthma attack or because the employee’s
            health care provider has advised the employee to stay home
            when the pollen count exceeds a certain level. An
            employee who is pregnant may be unable to report to work
            because of severe morning sickness.
29 C.F.R. § 825.115 (emphasis added).
                Here, Becknauld’s health care provider7 signed her FMLA Certification
stating that Becknauld had a chronic condition requiring treatment, and checked

      7
          The heath care provider’s name is illegible in the record. See R.R. at 262a.
                                                   6
the box stating: “Condition requires periodic visits for treatment by a health care
provider[.]” R.R. at 262a (emphasis added). Specifically, Becknauld’s health care
provider declared: “[Becknauld] has kidney disease and is seeing nephrologist and
internist . . . and chronic migraines - undergoing work up for kidneys.” R.R. at 623a.
Thus, for purposes of the Motion, Becknauld had a serious health condition under the
FMLA.
             Although Becknauld argues in her brief that the Department both
interfered with and retaliated against her in violation of the FMLA, in her Complaint
she specifically alleged:

             37. As a direct consequence of requesting and/or taking
             FMLA leave, [Becknauld’s employment] was terminated by
             the [Department].
             38. The termination was baseless and retaliatory in nature.
             39. As a result of the [Department’s] unlawful retaliation
             in violation of the FMLA, [Becknauld] has suffered
             damages as set forth herein.

R.R. at 15a (emphasis added).
             “To succeed on an FMLA retaliation claim, a plaintiff must show that
‘(1) [she] invoked [her] right to FMLA-qualifying leave, (2) [she] suffered an adverse
employment decision, and (3) the adverse action was causally related to [her]
invocation of rights.’ Lichtenstein, 691 F.3d at 302.” Ross v. Gihuly, 755 F.3d 185,
193 (3d Cir. 2014) (emphasis added).

                 Because FMLA retaliation claims require proof
                 of the employer’s retaliatory intent, courts have
                 assessed these claims through the lens of
                 employment discrimination law. Accordingly,
                 claims based on circumstantial evidence have been
                 assessed under the burden-shifting framework
                 established in McDonnell Douglas Corp. v. Green,
                 411 U.S. 792 . . . (1973), while claims based on
                 direct evidence have been assessed under the mixed-

                                          7
                   motive framework set forth in Price Waterhouse v.
                   Hopkins, 490 U.S. 228, 276–77 . . . (1989)
                   (O’Connor, J., concurring).
               Lichtenstein, 691 F.3d at 302. . . . [Becknauld] does not
               argue that h[er] retaliation claims are mixed-motive claims.
               The only question, therefore, is whether [Becknauld] is able
               to meet the shifting burdens of McDonnell Douglas.
            Under the McDonnell Douglas framework, a plaintiff must
            first establish a prima facie case of discrimination. If
            the plaintiff succeeds, the defendant must articulate a
            legitimate, non-discriminatory reason for the adverse
            employment action. The burden then shifts back to the
            plaintiff to prove, by a preponderance of the evidence,
            that the articulated reason was a mere pretext for
            discrimination.
Ross, 755 F.3d at 193 (emphasis added).
               Becknauld maintains that there is ample evidence to show pretext: (1) a
lost 2008 performance review; (2) contradictions in the reasons for employment
termination; and (3) evidence that her leave days were disability-related.        See
Becknauld Br. in Response to the Department’s Motion, R.R. at 153a-157a.
However, the record does not support Becknauld’s assertions. The record contains an
email string between Becknauld and the Department’s Human Resource Director
Lana Adams (Adams) beginning March 31 and ending April 1, 2009 (the week
between her discharge notification and the effective date of employment termination).
Nowhere in the email string does Becknauld assert that she believes her firing was
retaliatory for her attempted FMLA form submission.
               Specifically, Becknauld begins the email to Adams by stating that she
was on FMLA leave while employed and needs benefits under the Consolidated
Omnibus Budget Reconciliation Act (COBRA)8 for her health conditions (notably,
not the conditions listed on her FMLA Certification). See R.R. at 272a. Adams

      8
          29 U.S.C. §§ 1161–1169.


                                            8
informed Becknauld that she was currently employed and not on FMLA leave. See
R.R. at 272a. Becknauld responded by admitting that her Certification was rejected
because it contained two medical conditions. See R.R. at 270a. Becknauld then
continued to admit that although the reasons for her employment termination were
accurate, she did not believe they were worthy of discharge. See R.R. at 271a.
            In her final email to Adams, Becknauld expressly declared:

            I am piecing together all the reasons why [my employment]
            was terminated. I truly feel my Drs. appt. [sic] got in the
            way for one and also the email I made with The Meadows
            that George Crawford made such a stink about, which was
            ridiculous. It was taken out of context. The bottom line
            [sic] there were individuals that wanted me out of there
            because I questioned things. Who is to say [personnel
            representative] Charlene [Miller (Miller)] didn’t delete one
            of my sick days because she is able to go into anyone’s file
            on workplace and do it. I heard terrible things about her as
            it was [sic] what she has done to people. I am sorry to
            sound like this but what does it matter now. I am angry and
            she is not a good person. She has wanted me gone for a
            long time just like [Nolt]. [Executive Secretary] Daniel
            [Defano (Defano)] is another one. They both run that
            department. I KNOW I DID NOTHING WRONG! What
            hurts is that Mike Pechart, [the Department’s then-Deputy
            Secretary] Russell [Redding] and [the Department’s]
            Secretary [Dennis C.] Wolff who have believed in me[,]
            now think this about me. It is devastating to me! It makes
            me cry all over again.
            I know I am an ‘at will’ employee and this is where
            everyone thinks they got me.
            To think [] Dillon sat in that office on Friday and said he
            was dissatisfied [sic] with my work from day one, I wanted
            to stand up and scream – are you crazy. I bent over
            backwards to please him day in and day out. Not only that
            but in July of 2008 he gave me a satisfactory and
            outstanding evaluation. I ran into [the Department’s
            Counsel] who use [sic] to work with him and he told me
            something is wrong with [Dillon] . . . and he sympathized
            with me. He said he thought he was . . . or something and

                                          9
              he also has a temper. I shared with him my experiences and
              the times he lost his temper with me, but I had no one to
              turn to because who would listen to me. [The Department’s
              then-Director of Operations] Joe Mushalko saw it but he
              always just looked out for himself. [The Department’s
              Counsel] totally understood and agreed [Dillon] has a
              problem. [Adams], I felt so alone in that department.
              [Deputy Executive Secretary] Cheryl [Cook] knew the
              problems I was having with [Dillon] also, but after awhile
              [sic] she didn’t care. She only cared when I made a typing
              error on an agenda. Dear Lord, I am human.
              I am sorry, I am venting. Thank you for your time. I will
              move forward eventually but right now I am very angry and
              hurt. I know [Defano] and [Miller] will get what is coming
              to them some day. [Miller] has hurt alot [sic] of people for
              no reason as I have been told. I will try to focus on the
              positive, as you recommended. Thank you and take care.

R.R. at 269a (emphasis added).
              Moreover, nowhere in Becknauld’s deposition transcript does she assert
that the reasons for her discharge were pretextual. Rather, when questioned regarding
specific reasons for her discharge, Becknauld routinely answered that she “did not
recall,” “did not remember” or “I don’t know”. R.R. at 239a-242a, 246a-247a. With
the exception of referencing a document she filled out when she “was forming a
discrimination case[,]”9 Becknauld never alluded to any belief that she was fired
because she sought family and medical leave. R.R. at 248a.
              “[W]here a motion for summary judgment has been made and properly
supported, parties seeking to avoid the imposition of summary judgment must
show by specific facts in their depositions, answers to interrogatories, admissions
or affidavits that there is a genuine issue for trial.” Marks v. Tasman, 589 A.2d
205, 206 (Pa. 1991) (emphasis added); see also Pa.R.C.P. No. 1035.2(2) (emphasis
added) (“if, after the completion of discovery relevant to the motion, including the

       9
         Even in that document, Becknauld admitted to making too many typographical errors and
forgetting to turn in leave slips. See R.R. at 248a-249a.
                                             10
production of expert reports, an adverse party who will bear the burden of proof
at trial has failed to produce evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be submitted to a jury”).
              Here,

              the reasons for [Becknauld’s employment] termination, as
              detailed in [her termination notice], were deficiencies that
              had existed since before [s]he [attempted to submit her]
              FMLA [Certification]. An employee cannot easily establish
              a causal connection between [her] protected activity and the
              alleged retaliation when [the reasons for discharge existed]
              before engaging in the protected activity. [Becknauld] has
              failed to establish a causal link here, and there was no error
              in granting summary judgment.

Ross, 755 F.3d at 194. Accordingly, we hold that there was insufficient record
evidence to permit Becknauld’s FMLA claim to proceed to trial.
              Becknauld next argues that the trial court erred by failing to consider
that she was “disabled” or “regarded as” disabled within the meaning of the ADA,
when the ADA and PHRA are generally construed identically.                      Specifically,
Becknauld asserts that she made out a prima facie PHRA claim because she alleged:
she was disabled; otherwise qualified to perform her job; and, suffered an adverse
action. The Department responds that Becknauld did not establish that she was
“disabled” or as that term is defined - had a physical impairment that substantially
limits one or more major life activities, or that Employer perceived that she had such
impairment.
              At the outset,

              [i]n order to make out a prima facie case of disability
              discrimination under the ADA and PHRA, a plaintiff must
              establish that s/he (1) has a ‘disability,’ (2) is a ‘qualified
              individual,’ and (3) has suffered an adverse employment
              action because of that disability. Gaul v. Lucent Techs.
              Inc., 134 F.3d 576, 580 (3d Cir.1998).


                                            11
Buskirk v. Appollo Metals, 307 F.3d 160, 166 (3rd Circ. 2002) (footnote omitted).
              Section 4(a) of the ADA defines “disability” as “(A) a physical or
mental impairment that substantially limits one or more major life activities . . . ;
(B) a record of such an impairment; or (C) being regarded as having such an
impairment . . . .” 42 U.S.C. § 12102(1) (emphasis added). “For purposes of
paragraph (1), major life activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending,     speaking,     breathing,      learning,    reading,     concentrating,      thinking,
communicating, and working.” 42 U.S.C. § 12101(2)(A).

              For purposes of proving ADA discrimination,[10] it is
              important to distinguish between an employer’s knowledge
              of an employee’s disability versus an employer’s
              knowledge of any limitations experienced by the employee
              as a result of that disability. This distinction is important
              because the ADA requires employers to reasonably
              accommodate limitations, not disabilities.              ‘The
              determination of whether an individual has a disability is
              not necessarily based on the name or diagnosis of the
              impairment the person has, but rather on the effect of that
              impairment on the life of the individual.’ 29 C.F.R.
              1630.2(j), App. (1995); 42 U.S.C. § 12112(a)(5)(A) (‘[T]he
              term ‘discriminate’ includes . . . not making reasonable
              accommodations to the known physical or mental
              limitations of an otherwise qualified individual with a
              disability. . . .’) (emphasis added); 29 C.F.R. [§] 1630.9,
              App. (1995) (‘Employers are obligated to make reasonable
              accommodations only to the physical or mental limitations
              resulting from the disability that is known to the
              employer.’) (emphasis added).


       10
           Although we are not bound in our interpretation of the PHRA by federal interpretations of
parallel provisions, Pennsylvania courts generally interpret the PHRA in accordance with its federal
counterparts. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996); see also Imler v.
Hollidaysburg Am. Legion Ambulance Serv., 731 A.2d 169, 173-74 (Pa. Super. 1999) (“The PHRA
and ADA are interpreted in a co-extensive manner. This is because the PHRA and ADA deal with
similar subject matter and are grounded on similar legislative goals. . . . Thus, we use as guidance
the decisions of the federal courts to assist in the interpretation of the PHRA.”).
                                                12
Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996).
             Becknauld contends that because she told Dillon about her medical
condition and he advised her to look into her ADA and FMLA options, he regarded
her as having such an impairment. However, having a medical condition and having
a medical condition that limits one or more life activities is not the same. Although
Dillon may have acknowledged the former, the record evidence is clearly lacking in
proof that he believed and/or acted on the latter, and Becknauld failed to allege the
latter in her Complaint.
             Based upon the record, the trial court opined:

             Overall, aside from [Becknauld’s] mere speculation and
             conclusory allegations, she has not provided any competent
             evidence that could lead a reasonable fact finder to believe
             that her ‘kidney problems’ substantially limit her in one or
             more major life activities or that [the Department] perceived
             her as being impaired. Accordingly, the [trial c]ourt finds
             that [Becknauld] has failed to adduce evidence to
             demonstrate a prima facie disability discrimination case
             and, thus, summary judgment in [the Department’s] favor is
             appropriate. This Court also finds in the record ample
             nondiscretionary work performance issues, which preceded
             [Becknauld’s] [employment] termination.

R.R. at 312a. We discern no error in this legal analysis.
             For all of the above reasons, the trial court’s order is affirmed.


                                       ___________________________
                                        ANNE E. COVEY, Judge




                                           13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna P. Becknauld,                     :
                         Appellant      :
                                        :
            v.                          :
                                        :
Commonwealth of Pennsylvania,           :   No. 678 C.D. 2016
Department of Agriculture               :


                                     ORDER


            AND NOW, this 4th day of January, 2017, the Dauphin County Common
Pleas Court’s March 31, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
