                                              NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                            No. 08-2368


                           JOHN BLAKE,

                                       Appellant

                                  v.

UPMC PASSAVANT HOSPITAL; JOE KUZMA, individually and in his
 capacity as a Department Supervisor with UPMC Passavant Hospital;
BRIAN KOOROS, individually and in his capacity as a Human Resources
             Representative with UPMC Passavant Hospital


           On Appeal from the United States District Court
                for the Western District of Pennsylvania
                    District Court No. 2-06-cv-00193
          District Judge: The Honorable Terrence F. McVerry


          Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                        September 16, 2010

      Before: SLOVITER, BARRY, and SMITH, Circuit Judges

                     (Filed: September 17, 2010)



                              OPINION
SMITH, Circuit Judge.

      John Blake was employed as a phlebotomist at defendant UPMC Passavant

Hospital (“UPMC”). During his initial 180-day probationary period, he was absent

from work a number of times. His absenteeism was addressed as a concern by

superiors and a leave plan was worked out. After quite a few more absences, he

informed his superiors that he suffered from bipolar disorder and other maladies and

would continue to be in need of irregular absences. He continued to call out of work

erratically, which UPMC addressed with progressive warnings, consistent with its

disciplinary policy. Blake was eventually terminated consistent with that policy.

      Blake filed this action seeking recovery under the Americans with Disabilities

Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), the Family and Medical Leave Act, 29

U.S.C. §§ 2601, et seq. (“FMLA”), and various state law causes of action. The

District Court granted all defendants’ motion for summary judgment, and Blake

appeals.1

      The ADA prohibits discrimination against qualified individuals, defined as



      1
        The District Court had jurisdiction under 28 U.S.C. § 1331 for the federal
claims and § 1367 for the state law claims, and we have jurisdiction under § 1291. We
have plenary review over the District Court’s entry of summary judgment. Specialty
Surfaces Int’l, Inc. v. Continental Cas. Co., 609 F.3d 223, 229 n.1 (3d Cir. 2010).
Because Blake does not challenge the entry of summary judgment on his state law
claims, we do not address them.
                                         2
those able, with or without reasonable accommodation, to perform the essential

functions of the job. 42 U.S.C. §§ 12112(a), 12111(8). Likewise, the FMLA

prohibits interference with certain rights of individuals able to perform the essential

functions of their positions. Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 384 (3d Cir.

2002) (citing 29 C.F.R. § 825.214(b) (2001)). Thus, under each statute the ability to

perform the essential functions of the job is a prerequisite to protection.

      Blake was unpredictably absent from work on numerous days. He admits that

his condition giving rise to such absences is permanent and his absences will thus

continue. The District Court correctly concluded that Blake was not qualified for his

position as a phlebotomist because he could not attend work regularly. Smith v.

Davis, 248 F.3d 249, 251 (3d Cir. 2001) (“An employee who does not come to work

on a regular basis is not ‘qualified.’”) (citation omitted). Therefore, his claims under

the ADA and FMLA must fail.

      Thus, we will affirm the judgment of the District Court.




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