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


5-19-2005

Callison v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 04-2941




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Callison v. Philadelphia" (2005). 2005 Decisions. Paper 1086.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1086


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                  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 May 19, 2005)

Samuel A. Dion, Esq.
Dion & Goldberger
1515 Locust Street
10 th Floor
Philadelphia, PA 19102

Counsel for Appellant
Jane L. Istvan, Esq.
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102

Counsel for Appellee


                           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. 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.

                                2
       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 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

                                3
Fed. R. Civ. P. 56(c). In evaluating the evidence, we “take the
facts in the light most favorable to the nonmoving 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 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

                                 4
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.) 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.

                                 5
        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 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



       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 this claim on
the merits.

                                 6
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 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, Callison was
required to comply with the policy and the City did not abrogate
his FMLA rights by placing him on suspension for the

                                 7
violations.

       For the foregoing reasons, the judgment of the District
Court entered on June 17, 2004, will be affirmed.




                                8
