                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2005

Callison v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2941




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                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT


                                      No. 04-2941


                               DAVID W. CALLISON,

                                                Appellant

                                           v.

                              CITY OF PHILADELPHIA,




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 03-cv-03008)
                        District Judge: Hon. Legrome D. Davis


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 5, 2005

              BEFORE: BARRY, AMBRO and COWEN, Circuit Judges

                                 (Filed April 19, 2005)


                                       OPINION


COWEN, Circuit Judge.

      David Callison appeals the District Court’s order granting the City of

Philadelphia’s motion for summary judgment and denying Callison’s motion for partial
summary judgment. Callison limits his appeal to the portion of the order relating to his

interference claim, and waives his retaliation claim. (Appellant’s Br. at 6.) He asserts

that the District Court failed to recognize that the enforcement of the City’s sick leave

policies against him while he was on leave pursuant to the Family and Medical Leave

Act, 29 U.S.C. § 2601 et seq. (“FMLA”) interfered with his substantive FMLA rights.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

       The facts germane to this appeal are undisputed. Callison was initially employed

by the City’s Office of Fleet Management (“OFM”) as a Heavy Duty Maintenance

Technician on February 2, 1998. Callison had perfect attendance in his first year of

employment; however, this record deteriorated. In about January 2000, Callison was

diagnosed with deep anxiety reaction and stress, caused by stress at home and at work.

That year Callison used twenty-six, and the following year used twelve, days of sick

leave. Because of the significant amount of absences, the City placed Callison on a Sick

Abuse List on October 30, 2000. Employees on this list are required to obtain medical

certification for all sick days and are subject to progressive penalties for violations of the

sick leave policies.

       The OFM employee manual contains the following requirement for all employees

on sick leave:

                 During regular working hours, when an employee is home on
                 sick leave, the employee must notify the appropriate authority or
                 designee when leaving home and upon return. An employee is to
                 remain at home except for personal needs related to the reason

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              for being on sick leave. While on sick leave an employee may be
              called or visited by a sick leave investigator unless the employee
              has 150 days or more of accumulated sick leave credit.


(App. at 109.)

       On January 8, 2001, while still on the Sick Abuse List, Callison took another sick

day. Callison never notified the Sick Control Hotline that he was leaving his home, and

when an investigator telephoned his residence he was not there. Pursuant to the OFM’s

policy he was given a warning for this violation.

       Following this violation, Callison was out on approved FMLA leave for

approximately three months, from January 24 to April 17, 2001. On January 29 and

February 7, 2001, the City conducted additional investigations and found that Callison

was not home on those dates and had failed to notify the hotline. In accordance with the

progressive penalties policy, Callison received a one and three day suspension,

respectively, for his failures to notify the hotline that he was leaving his home. These

suspensions were served by Callison, on May 8, 15, 16 and 17, 2001, after he returned to

work from his FMLA leave.

       We exercise plenary review over a District Court’s order granting summary

judgment. See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 679 (3d Cir.

2003). Summary judgment is appropriate if there is no issue of material fact and the

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In

evaluating the evidence, we “take the facts in the light most favorable to the nonmoving

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party . . . and draw all reasonable inferences in [its] favor.” Doe v. County of Centre, 242

F.3d 437, 446 (3d Cir. 2001).

       The primary purposes of the FMLA are to “balance the demands of the workplace

with the needs of families” and “to entitle employees to take reasonable leave for medical

reasons.” 29 U.S.C. § 2601(b)(1) and (2). The FMLA endeavors to accomplish these

purposes “in a manner that accommodates the legitimate interests of employers.” 29

U.S.C § 2601(b)(3).

       The FMLA contains two relatively distinct types of provisions. First, it creates a

series of prescriptive substantive rights for eligible employees, often referred to as the

“entitlement” or “interference” provisions which set floors for employer conduct. See

Churchill v. Star Enters., 183 F.3d 184, 192 (3d Cir. 1999). Eligible employees “shall be

entitled to a total of twelve workweeks of leave during any twelve-month period” if the

employee has a “serious health condition that makes the employee unable to perform the

functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). 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).

       Additionally, the FMLA provides protection against discrimination based on the

exercise of these rights, often referred to as the “discrimination” or “retaliation”

provisions. See 29 U.S.C.§ 2615(a)(1) and (2); 29 C.F.R. § 825.220(c) (“An employer is



                                              4
prohibited from discriminating against employees . . . who have used FMLA leave.”).

Employers may not “use the taking of FMLA leave as a negative factor in employment

actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c)

       This appeal only involves the interference provision of the FMLA. In order to

assert a claim of deprivation of entitlements, the employee only needs to show that he was

entitled to benefits under the FMLA and that he was denied them. 29 U.S.C. §§ 2612(a),

2614(a). The Act provides that “[i]t shall be unlawful for any employer to interfere with,

restrain, or deny the exercise of or the attempt to exercise, any right provided under this

subchapter.” 29 U.S.C. § 2615(a)(1). Under this theory, the employee need not show that

he was treated differently than others. Further, the employer cannot justify its actions by

establishing a legitimate business purpose for its decision. An interference action is not

about discrimination, it is only about whether the employer provided the employee with

the entitlements guaranteed by the FMLA. It is undisputed that Callison was entitled to

the benefits of the FMLA. Accordingly, the only issue we must determine is whether the

City denied Callison of his entitlements under the FMLA by enforcing its own sick leave

policies against him while he was on leave.

       Callison argues that the FMLA anti-abuse and eligibility provisions conflict with

the City’s call-in requirement in its sick leave policy and therefore the requirement should

not have applied to him while he was on leave. He asserts that “[o]nce an employee is

pre-approved for FMLA leave, he/she should be left alone.” (Appellant’s Br. at 8.)



                                              5
Recognizing that he was permitted to return to work after his leave, Callison argues that

his rights were interfered with because he was issued two suspensions while on leave for

leaving his home without notifying the City. He reasons that he was not restored with the

same salary because these suspensions amounted to four days of lost wages.

       In granting the City’s motion for summary judgment, the District Court found that

the City’s sick leave policy requiring an employee on leave to “call the Sick Leave

Hotline when leaving home during regular working hours does not conflict with any

substantive provisions of the FMLA.” (App. at 8.) Further, the Court reasoned that the

purpose of the FMLA is not compromised by this policy because it “neither prevents

employees from taking FMLA leave nor discourages employees from taking such leave.

It simply ensures that employees do not abuse their FMLA leave.” We agree.

       The FMLA is meant to prohibit employers from retaliating against employees who

exercise their rights, refusing to authorize leave, manipulating positions to avoid

application of the Act, or discriminatorily applying policies to discourage employees from

taking leave. 29 C.F.R. § 825.220. In the instant case, the City did not engage in any of

these prohibited acts. The City provided Callison with the entitlements set forth in the

FMLA (e.g., a twelve-week leave and reinstatement after taking medical leave).

       Callison’s contention that the FMLA’s anti-abuse provisions contained in 29

U.S.C. § 2613 preempt the City’s procedures is meritless.1 The anti-abuse provisions in

   1
     We will not consider whether this argument was waived because it was not raised in
Callison’s response to the City’s motion for summary judgment. Rather, we will deny

                                             6
the FMLA permitting employers to request second opinions and certifications does not

conflict with the City’s provision requiring employees on medical leave to call-in when

leaving their home during business hours. These “certification” provisions merely outline

some of the employer’s rights and employee’s corresponding obligations. It neither

establishes an employee’s entitlements nor provides an exhaustive list of an employer’s

rights.

          Similarly, the eligibility requirements contained in 29 U.S.C. § 2612(a)(1) do not

conflict with the call-in procedure. Unlike the eligibility provision, the call-in procedure

does not serve as a pre-requisite to entitlement of FMLA leave. Rather, the procedure

merely sets forth obligations of employees who are on leave, regardless of whether the

leave is pursuant to the FMLA. The purpose of the procedure is to provide an additional

safeguard against sick leave abuse by employees.

          Finally, contrary to Callison’s assertion, there is no right in the FMLA to be “left

alone.” (Appellant’s Br. at 8.) Nothing in the FMLA prevents employers from ensuring

that employees who are on leave from work do not abuse their leave, particularly those

who enter leave while on the employer’s Sick Abuse List.

          We recognize that where an employer’s internal policies conflict with the FMLA,

the FMLA controls and the employee need only comply with the requirements of the Act

to invoke its protection. The FMLA provides that “the rights established for employees



this claim on the merits.

                                                7
under this Act . . . shall not be diminished by any collective bargaining agreement, or any

employment benefit program or plan.” 29 U.S.C. § 2652(b); see also Vanderpool v.

INCO Alloys Int’l, Inc., 1999 U.S. Dist. LEXIS 12363 (S.D.W.V. June 3, 1999) (denying

summary judgment because the employer’s requirement of advance notice and prohibition

of telephonic requests directly conflicted with FMLA provisions permitting telephonic

notice and dispensing with advance notice if the need for leave was unforeseeable);

Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455 (D.N.J. 2001) (finding

that the employer’s policy requiring certification for five consecutive absences directly

conflicts with the FMLA provision affording employees at least fifteen days to provide a

certification).

       Internal sick leave policies or any collective bargaining agreements are only

invalidated to the extent they diminish the rights created by the FMLA. “Federal labor

law requires employers to adhere to collective bargaining agreements; nothing in the

FMLA entitles employees to variance from neutral rules.” See Diaz v. Fort Wayne

Foundry Corp., 131 F.3d 711, 714 (7th Cir. 1997) (“What matters for current purposes is

that the FMLA does not tell employers how to send notices [for second opinions]. A firm

safely may use the method prescribed by collective bargaining agreements or some other

source of rules.”).

       Because the City’s internal call-in policy neither conflicts with nor diminishes the

protections guaranteed by the FMLA, it is not invalidated by the Act. Accordingly,



                                             8
Callison was required to comply with the policy and the City did not abrogate his FMLA

rights by placing him on suspension for the violations.

       For the foregoing reasons, the judgment of the District Court entered on June 17,

2004, will be affirmed.




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