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In the 3rd U.S. Circuit Court of Appeals’ recent decision Fogleman v. Greater Hazleton Health Alliance, the court addressed significant issues under all three of the most important statutes in federal employment law: Title VII, the ADA and the FMLA. While the case does not herald any groundbreaking shifts in the law, it emphasizes important issues for attorneys and their clients. Aurea Fogleman was a pharmacy technician at Hazleton-St. Joseph Medical Center, located in Northeast Pennsylvania. She was employed from June 1999 to June 2000, when she was terminated for excessive absenteeism and for three days no-call, no-show. She was hardly a stellar employee, having been previously disciplined for violations of the dress code, tardiness and excessive use of the telephone. FOGLEMAN INJURED AT WORK Although the underlying facts are not entirely clear from the opinion, it appears that Fogleman was injured at work in December 1999 and again in February 2000, and that her absence was related to these injuries. After being terminated, Fogleman filed a workers’ compensation claim seeking payment for lost wages from mid-May to early June and then for full disability benefits from early June going forward. She prevailed on these claims. Fogleman claimed that the medical center violated the FMLA by failing to tell her of her rights and the consequences of failing to provide an appropriate physician’s certification. She claimed that the ADA was at issue because the medical center had failed to offer the extended leave of absence that she believed was necessary in order to allow her to return to her employment. Finally, Fogleman brought a claim for retaliation under Title VII after she complained of comments made by her supervisor and a number of co-workers. Although it appears that a motion for summary judgment was denied, after two days of trial, the court granted the medical center’s motion for judgment as a matter of law. Fogleman appealed. ‘PROTECTED ACTIVITY’ The court first addressed Fogleman’s claim for retaliation under Title VII. Retaliation claims, it has often been noted, are the most difficult of claims to defend because of the inherent subjectivity in the decisions at issue. Furthermore, it is well settled that an employee need not have been actually discriminated against in order to support a retaliation claim. Rather, all that is required is that the employee make a complaint against his or her employer in good faith. “A plaintiff’s belief [that she has been subject to discrimination] may be mistaken, but employer retaliation is prohibited if the allegations of discrimination have an objectively reasonable basis and fact.” The Fogleman court cited the 11th Circuit’s decision in Weeks v. Harden Mfg. Corp. for the standard that “a plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It is thus not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.” In Fogleman’s case, she had complained about two episodes of what she claimed to be harassment. First, she claimed that she was sexually harassed when her male supervisor noted, in a meeting about the medical center’s dress code, that the color of Fogleman’s underwear was visible under her white uniform. The district court concluded, and the 3rd Circuit agreed, that a reasonable person “would not believe that the comment constitute sexual harassment” as it was, at worst, an isolated incident of minor proportions. The second episode cited by Fogleman was a claim that two female coworkers called her names and laughed at her in a demeaning way. The court found that Fogleman could not have had an objectively reasonable belief that this behavior was sexually harassing; there was neither sexual desire, harassment based on sex nor hostility for failure to conform to a sexual stereotype. “Fogleman presented no evidence that the two coworkers’ conduct in question falls into any of [the] same-sex discrimination categories.” Inasmuch as Fogleman did not have an objectively reasonable belief that she had been sexually harassed, her complaints to the medical center did not rise to the level of “protected activity” to support the retaliation claim. NO INDEFINITE LAW UNDER ADA Fogleman’s ADA claim failed on the grounds that her alleged request for accommodation “in the nature of time off from work for treatment” was not a reasonable request for accommodation as a matter of law. As such, Fogleman’s belief that she should have been offered up to a year leave of absence under the medical center’s policies was inherently unreasonable. The 3rd Circuit cited its opinion in Conoshenti v. Public Service Electric & Gas Co. for the underlying proposition that “the federal courts have permitted a leave of absence as a reasonable accommodation under the ADA where [the leave] would enable the employee to perform his essential functions in the near future.” While the court did not define precisely how “near” the future must be, the court found that “there is no evidence that permits any conclusion other than that the requested leave was for an indefinite and open-ended period of time. This does not constitute a reasonable accommodation.” CLAIM REQUIRES PREJUDICE Finally, Fogleman claimed that the medical center had violated the FMLA by failing to provide her with the requisite “individualized notice to employees regarding their FMLA rights and obligations.” Again, the Conoshenti case was guidance for the court. Specifically, the court found that under Conoshenti, “an employer’s failure to advise [an employee of her FMLA rights] could constitute a violation [of the act], but only if the employee could show resulting prejudice.” Fogleman could have shown prejudice had she shown that her return to work was possible had she been advised of her 12-week FMLA period. She was unable to do so. Furthermore, the court noted that “the FMLA does not require that the employer provide accommodation to facilitate her return. Rather, the employee must be able to perform the essential functions of the job without accommodation.” Fogleman testified that the only way that she could have returned to her employment after 12 weeks of leave would have been “if someone was willing to work with me.” While commentators discussing the Fogleman case have focused principally upon the denial of indefinite leave under the ADA, the more striking part of the opinion is the court’s focus on the “objectively reasonable” basis for having engaged in protected activity. While employees will generally easily pass this portion of the standard, by finding that clearly inappropriate — albeit non-discriminatory — behavior did not support a claim for retaliation, the court may be looking to raise the bar as to “protected activity” under the anti-discrimination laws. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA. If you are interested in submitting an article to Law.com, please click here for our submission guidelines.

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