                                                    NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                              No. 14-4374
                             _____________

                        COLEMAN R. MCCALL,
                                       Appellant

                                    v.

           CITY OF PHILADELPHIA; CITY OF PHILADELPHIA
                      DIVISION OF AVIATION;
        CITY OF PHILADELPHIA DEPARTMENT OF COMMERCE
                      DIVISION OF AVIATION;
          PHILADELPHIA AIRPORT SYSTEM; PHILADELPHIA
                     INTERNATIONAL AIRPORT

                             _____________

              On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                      District Court No. 2-11-cv-05689
            District Judge: The Honorable Ronald L. Buckwalter

                         Argued October 6, 2015

         Before: FUENTES, SMITH, and NYGAARD, Circuit Judges

                       (Filed: November 18, 2015)

Lorrie McKinley         [ARGUED]
McKinley & Ryan
238 West Miner Street
West Chester, PA 19382
      Counsel for Appellant
Elise M. Bruhl          [ARGUED]
Craig R. Gottlieb
Diane A. Loebell
Shant H. Zakarian
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
      Counsel for Appellees

                             _____________________

                                    OPINION*
                             _____________________

SMITH, Circuit Judge.

      Coleman R. McCall was a Custodial Worker I at the Philadelphia

International Airport, which is administered by the City of Philadelphia. McCall

began his employment in April of 2001. Ten years later, McCall’s employment

was terminated. Thereafter, he filed a complaint in the United States District Court

for the Eastern District of Pennsylvania alleging that the City had violated his

rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615, the

Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12112,

and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Con. Stat. § 955.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                         2
      The parties filed cross-motions for summary judgment after discovery

closed. The District Court denied summary judgment on the FMLA retaliation

claim, but granted summary judgment in favor of the City on the ADA and PHRA

claims. After the FMLA claim settled, McCall filed this appeal. He challenges

only the grant of summary judgment on the ADA claims alleging: (1) a failure to

accommodate McCall’s knee disability; (2) a failure to accommodate McCall’s

depressive disorder; and (3) a hostile work environment.1

      “An employer commits unlawful disability discrimination under the ADA if

[it] ‘does not mak[e] reasonable accommodations to the known physical or mental

limitations’” of an employee. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318,

325 (3d Cir. 2003) (citation omitted). “‘[W]hile the notice [of a desire for an

accommodation] does not have to be in writing, be made by the employee, or

formally invoke the magic words ‘reasonable accommodation,’ the notice

nonetheless must make clear that the employee wants assistance for his or her

disability.’” Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000)

(quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)).

      In this case, McCall contends the City failed to accommodate his knee


1
  The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1367. We exercise
jurisdiction under 28 U.S.C. § 1291. We conduct plenary review of a District
Court’s grant of summary judgment. Jones v. United Parcel Serv., 214 F.3d 402,
405 (3d Cir. 2000).
                                         3
disability when it did not allow him to use the fifteen days of unpaid leave

available to employees at the City’s discretion under a civil service regulation.

There is no evidence that McCall ever requested such an accommodation. Indeed,

in his deposition he affirmed that did not need to make such a request because the

fifteen days of unpaid leave were given to every employee. McCall’s reliance on

the availability of unpaid leave, however, was misplaced. McCall’s placement on

the No Unpaid Leave List in both 2006 and 2009, as well as the City’s issuance of

notice in August of 2009 that it would not be as generous in approving unpaid

leave, unmistakably informed McCall that unpaid leave was not automatically

available to every employee every year.

      Nor is there evidence from which constructive notice of a desire for an

accommodation could be inferred. It is true that McCall had several unauthorized

absences. Those absences, however, cannot provide the requisite notice as there

was no documentation which would inform the City that McCall’s unauthorized

absences were attributable to his knee disorder. We recognize that Dr. Leavitt’s

letter explained that McCall’s unauthorized absence on May 1, 2010 was due to

severe knee pain and depression. But that letter, dated March 21, 2013, cannot

constitute constructive notice triggering the duty to accommodate McCall’s knee

disability because the letter was written almost three years after the unauthorized

absence on May 1, 2010.
                                          4
      As to McCall’s depressive disorder, the evidence fails to establish that the

City even knew of McCall’s depression until he asked for FMLA leave at the end

of July 2010.    Once the City was informed of McCall’s depressive disorder,

however, it granted both the requested leave and an extension of that leave.

Thereafter, McCall submitted a prescription from his physician stating that his “job

related problem continues unimproved. He is unable to work through April 4,

2011.” The City did not deny additional leave. Rather, the City informed McCall

that it could not process the request “because the condition for which you are being

treated . . . is not listed on your doctor’s note and you did not complete and submit

a leave request.” McCall promised several times to provide the necessary medical

documentation.     But by April 5, 2011, McCall had failed to submit any

documentation.     We conclude that the District Court appropriately granted

summary judgment on this claim because the City lacked not only a request for

leave, but also the information necessary to determine what kind of

accommodation was desired.

      Nor are we persuaded that the District Court erred in granting summary

judgment on McCall’s hostile environment claim.         A successful ADA hostile

environment claim requires that the “harassment was based on [the] disability or a

request for an accommodation.” Walton v. Mental Health Ass’n of Se. Pa., 168

F.3d 661, 667 (3d Cir. 1999). The evidence fails to show that any harassment that
                                         5
occurred was related to either McCall’s knee disorder or his depression.

      We recognize that a request for FMLA leave may qualify in certain

circumstances as a request for an accommodation under the ADA. See 29 C.F.R.

§ 825.702(c)(2). Nonetheless, any harassment McCall may have endured because

of a request for FMLA leave occurred when his twins were born prematurely. This

was family leave under the FMLA. See 29 U.S.C. § 2612(a)((1)(A)-(C). Because

family leave is not based on an employee’s own serious health condition, a request

for family leave under the FMLA cannot qualify as a request for accommodation

of a disability in an ADA hostile environment claim.

      To be sure, there was some hostility at work. Kayla Jones, the management

employee in charge of applying the City’s progressive discipline policy, was

unprofessional in her interaction with employees, including McCall. The Inspector

General’s Office recommended that Jones “be disciplined for multiple incidents of

conduct unbecoming in order to minimize further occurrences.”          Yet Jones’s

inability to behave professionally with multiple individuals does not establish that

any harassment by Jones was because of McCall’s disabilities or a request for an

accommodation.

      Accordingly, we will affirm the District Court’s judgment.




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