Frederick Capps v. Mondelez Global, LLC

Frederick Capps challenges the District Court’s Order

granting summary judgment in favor of Capps’ former

employer, Mondelez Global, LLC (“Mondelez”), one of the

largest manufacturers of snack food and beverage productions

in the United States. Specifically, Capps argues that the

District Court erred in granting Mondelez’s summary

judgment motion on Capps’ claims that Mondelez: (1)

interfered with his rights under the Family and Medical Leave

Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) acted in

retaliation to Capps’ proper use of FMLA leave; and (3)

violated the Americans with Disabilities Act, as amended

(“ADA”), 42 U.S.C. § 12101 et seq.

For the reasons that follow, we affirm the District

Court’s Order granting summary judgment in favor of

Mondelez. In so doing, we hold that an employer’s honest

belief that its employee was misusing FMLA leave can defeat

an FMLA retaliation claim. We also confirm that, under

certain circumstances, a request for intermittent FMLA leave

may also constitute a request for a reasonable accommodation

under the ADA, but under the circumstances in this particular

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case, even assuming, arguendo, such a request was made,

there is a lack of evidence that Mondelez failed to provide

any requested accommodation.

I. BACKGROUND

Mondelez’s predecessor, Nabisco, hired Capps in

November 1989. At all relevant times to this action, Capps

held the position of mixer, which required him to operate a

mixing machine that makes dough.

Mondelez has maintained a policy that an employee is

entitled to FMLA leave for a “serious health condition of the

employee that makes the employee unable to perform one or

more of the essential functions of his/her position.” (JA 451.)

An employee may use intermittent FMLA leave when it is a

“medical necessity,” and the employee must provide notice of

the leave “as soon as practicable.” (JA 451-52.)

Any employee who wishes to take FMLA leave due to

his own serious health condition must provide the company

with a certification from his health care provider. Company

policy also provides: “As with all communications with the

Company, the submission of false information to the

Company regarding the need for FMLA leave, or the

fraudulent use of FMLA leave, may result in discipline, up to

and including termination.” (JA 452.)

Mondelez also has a policy entitled “Dishonest Acts

on the Part of Employees” (“Dishonest Acts Policy”), which

is considered a “Major Rule.” (JA 449, 457.) Violations of

“Major Rules” are considered inexcusable offenses that “will

result in immediate suspension pending investigation, which

could lead to termination.” (JA 449, 457.) Mondelez’s

Dishonest Acts Policy includes the warning that “THE

COMPANY WILL NOT TOLERATE DISHONESTY

ON THE PART OF ITS EMPLOYEES, WHETHER IT

BE COMMITTED AGAINST THE COMPANY,

ANOTHER EMPLOYEE, ITS CUSTOMERS, OR

OTHERS EITHER DURING OR AFTER WORKING

HOURS” and that “ANY EMPLOYEE FOUND GUILTY

OF A DISHONEST ACT WOULD BE SUBJECT TO

DISMISSAL.” (JA 449 (emphasis in original).)

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Capps suffers with Avascular Necrosis (“AVN”),

which was described by Aron Guttin, D.O., Capps’ treating

physician, as “a condition in which there is a loss of blood

flow, severely limiting oxygen and nutrient delivery to the

bone and tissues, essentially suffocating and causing death of

those cells.” (JA 312.) As a result of the AVN, Capps

developed arthritis in both hips which necessitated bilateral

hip replacement in or about 2003.

He has experienced severe pain at times in the pelvic

region, thighs and hips, sometimes lasting for days or weeks

at a time. Therefore, he requested intermittent time off from

work when flare-ups occurred. Capps was certified for

intermittent FMLA leave following his hip replacements, and

thereafter throughout his tenure at Mondelez, he was

continuously recertified approximately every six months for

intermittent FMLA leave for his condition until his

employment was terminated in 2014.

The certification supporting Capps’ approved FMLA

leave covering January 24, 2013 through July 23, 2013 was

completed by Dr. Guttin who certified that Capps was unable

to perform certain job functions as a result of his condition.

Where the certification form required Dr. Guttin to “identify

the job functions the employee is unable to perform,” Dr.

Guttin responded that Capps “requires full bedrest during

exacerbations.” (JA 334.)

Dr. Guttin further stated that “[t]his year [the episodes]

have been more severe [and] more frequent than years prior”

and that Capps “experiences temporary periods of

inflammation that are debilitating and require antiinflammatory

medication and rest.” (JA 334, 335.)

Mondelez’s third-party FMLA administrator, WorkCare,

approved this request under the FMLA, and the approval

noted that Capps “may need to be off work 1-2 times every

month for a duration of up to 14 days per episode for

incapacity and treatment appointments.” (JA 342.)

On Monday, February 11 and Tuesday, February 12,

2013, Capps took FMLA leave due to leg pain, and he

returned to work for a full shift on Wednesday, February 13,

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2013. Capps was scheduled to work on Thursday, February

14, 2013, but he called Mondelez’s phone system and the

FMLA message line on February 14th stating he would be late

to work because of leg pain. Later that day, he again called

the FMLA message line and Mondelez’s phone system

stating that he would be taking a full day of FMLA leave

since the pain had not subsided. Dr. Guttin also signed

Capps’ FMLA certification form dated February 14th.

Capps testified at his deposition that his wife was out

of the country that week on a business trip and that because

he didn’t “know how to cook,” he had to “call out or go out”

for his meals. (JA 279.) Capps further testified that at

approximately 6:30 p.m. on the 14th he drove to a local pub,

which was not more than one and a half miles from his home,

to “get something to eat” (JA 279). According to Capps, at

the pub he also drank three beers and three shots of alcohol

with his friends, and he spent approximately two and a half (2

½) to three hours at the pub. Afterwards, despite feeling too

intoxicated to drive, Capps attempted to drive home.

Capps testified that after leaving the pub, at or around

9:00 p.m. he was stopped by police. The Bensalem Township

police drove Capps to the hospital for a blood test, which

resulted in a reading of a blood alcohol concentration level of

0.339% - more than four times the legal limit in

Pennsylvania. Capps testified that he was released from jail

early the next morning on Friday, February 15, 2013. He

further testified that he woke up on the 15th “probably about

10, 11 o’clock” and his “legs were bothering [him] again.”

(JA 46.) He stated that he “just hung around the house, just

wasn’t feeling good” and “took some Aleve again.” (JA 46.)

Capps was scheduled to begin his shift that Friday

afternoon at 1 p.m. on February 15th. However, on the 15th,

he called Mondelez’s phone system and the FMLA message

line indicating that he would be using FMLA leave due to leg

pain.

Capps returned to work on Monday, February 18,

2013. Upon returning to work, he performed the same work

and received the same salary and benefits as before taking

FMLA leave. He did not report his arrest to anyone at

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Mondelez; nor was he required to under Mondelez’s policies.

Upon recertification, Capps was approved for FMLA leave

from July 31, 2013 through January 30, 2014.

On August 7, 2013, Capps pled guilty to the charge of

Driving Under the Influence of Alcohol (“DUI”), and he

served 72 hours in jail immediately following the guilty plea

hearing. His sentence also included probation, costs and

fines, and suspension of his driver’s license.

In early 2014, William Oxenford, a Human Resources

(“HR”) Manager at Mondelez, became aware of Capps’ DUI

conviction and sentence by finding in Oxenford’s company

mailbox a newspaper article reporting the same. Oxenford

asked Barbara McAvoy, an employee in the HR department,

and Nancy Pace, administrative assistant to the plant

manager, to investigate Capps’ attendance record to

determine if Capps had any absences during the time frame of

Capps’ arrest and conviction.

Although neither Oxenford nor McAvoy were

attorneys, and they did not understand the meaning of all the

docket entries, upon reviewing the criminal court docket

related to Capps’ conviction, Oxenford and McAvoy noticed

that Capps’ arrest date and “court dates” appeared to coincide

with days on which Capps had taken FMLA leave. For

instance, Capps’ arrest date, February 14, 2013, was a day on

which Capps had called out on FMLA leave. He also called

out on FMLA leave the next day. In addition, he called out of

work using FMLA leave on other dates that appeared on the

court docket: June 4, 2013 (“Appearance and Waiver of

Arraignment”) and October 15, 2013 (“ARD Court”).

Oxenford and McAvoy confronted Capps and his

union representative with this information at a meeting on

February 26, 2014. In response, Capps promised to provide

documentation to support his FMLA leave on the days in

question, and Capps was suspended pending further

investigation.

Upon being suspended, Capps submitted to Mondelez

an undated letter from Dr. Guttin confirming the

aforementioned dates Capps had taken FMLA leave during

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the week of February 11, 2013 due to his “hip pathology” (JA

407). The undated letter further stated that Capps had taken

FMLA leave on June 3 and 4, 2013 due to his hip pathology,

and also that he had a court date on June 7, 2013 but “waived

his right for that appearance.” (JA 407.) Oxenford was

suspicious of the undated letter which included legal

information from Dr. Guttin regarding scheduled court dates

and certain legal rights that Capps had waived. Mondelez

subsequently received a nearly identical letter dated February

27, 2014 from Dr. Guttin.

Capps also submitted to Mondelez an unsigned first

page only of a letter dated May 31, 2013 addressed to Capps

from his attorney in the DUI matter confirming some of the

dates related to his DUI action. On April 21, 2014, nearly

two months after he was suspended and promised to provide

documentation (and one month after receiving notice of his

termination), Capps provided a complete copy of that 2-page

letter. After Capps had been terminated, he presented a

second letter from his DUI attorney dated March 26, 2014

confirming that Capps attended court proceedings on May 9,

2013 and August 7, 2013 and that Capps was incarcerated

from August 7, 2013 to August 10, 2013.

Capps was notified of his termination of employment

by letter dated March 21, 2014, effective February 26, 2014.

That decision was made by Oxenford and the plant manager,

Rusty Moore, in conjunction with Mondelez’s legal

department. The letter confirmed that Capps’ termination

was based on his violation of the Dishonest Acts Policy. The

termination letter further stated: “You claimed to be out due

to [ ] FMLA related issues on multiple dates. The

documentation you produced does not support your claim of

[ ] FMLA related absences.” (JA 404.)

Following Capps’ termination, Mondelez retained the

services of an investigator. The investigator reported on April

25, 2014 that a detective from the police department indicated

that Capps had been released from custody from his DUI

arrest at 6:00 a.m. on the morning following the arrest.

Capps completed a Grievance Form on March 27,

2014 claiming he was “unlawfully terminated.” (JA 405.)

8

Mondelez offered Capps reinstatement without back pay on

April 28, 2014, and Capps rejected the offer of reinstatement

on May 13, 2014.

Capps initiated this lawsuit on July 18, 2014. He filed

his Second Amended Complaint on October 16, 2014 alleging

claims of interference and retaliation in violation of the

FMLA, violations of the ADA, and violations of the

Pennsylvania Human Relations Act (“PHRA”).1 Following

discovery, Mondelez filed a motion for summary judgment on

July 27, 2015, and on that same date Capps filed a crossmotion

for partial summary judgment on his FMLA

interference claim.

By Memorandum and Order filed November 24, 2015,

the District Court granted Mondelez’s summary judgment

motion and denied Capps’ cross-motion. See Capps v.

Mondelez Global LLC, 147 F. Supp.3d 327, 330 (E.D. Pa.

2015). The District Court granted summary judgment on

Capps’ FMLA interference claim due to Capps’ inability to

show that he was denied a benefit to which he was entitled

under the FMLA. Id. at 335. The District Court granted

summary judgment on Capps’ FMLA retaliation claim

because the record evidence showed that Mondelez based its

decision to terminate Capps’ employment on an honest belief

that Capps misused that leave.2 Id. at 330, 339-40. Finally,



1 Because the PHRA is coextensive with the applicable

federal law, the conclusions herein are equally applicable to

Capps’ claims under the PHRA. See, e.g., Kelly v. Drexel

Univ., 94 F.3d 102, 105 (3d Cir. 1996) (noting that “courts . .

. generally interpret the PHRA in accord with its federal

counterparts”).



2 In support of its holding that Mondelez’s honest belief

defeated Capps’ FMLA claim, the District Court cited two

non-precedential opinions, Warwas v. City of Plainfield, 489

F. App’x 585, 588 (3d Cir. 2012) (citing Crouch v. Whirlpool

Corp., 447 F.3d 984, 986 (7th Cir. 2006)) (“[A]n employer

may defeat an FMLA claim if the discharge was based upon

the employer’s honest belief that the plaintiff either misused

or failed to use her medical leave for the intended purpose.”),

and Parker v. Verizon Pa., Inc., 309 F. App’x 551, 563 (3d

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the District Court granted summary judgment on Capps’

ADA claim because, although Capps requested and received

intermittent leave under the FMLA, he never made a request

for an accommodation under the ADA. Id. at 340.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §§

1331 and 1367. We have jurisdiction under 28 U.S.C. §

1291.

Our review of the District Court’s grant of summary

judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853,

859 (3d Cir. 2014). A moving party is entitled to summary

judgment if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is

“genuine” only “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable

inferences must be drawn in favor of the nonmoving party.

Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.

2009).

III. FMLA CLAIMS



The FMLA provides, in relevant part, that “eligible

employees are entitled to 12 workweeks of leave during any

12-month period due to an employee’s own serious health

condition.” Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014)

(citing 29 U.S.C. § 2612(a)(1)). Under the FMLA, when an

Cir. 2009) (finding no FMLA violation where termination of

employment was due to employer’s honest belief that

employee misrepresented his health condition in violation of

the employer’s Business Code of Conduct). Both Parker and

Warwas rely on Seventh Circuit case law in support of

application of the honest belief defense. See, e.g., Crouch,

447 F.3d at 986 (“[A]n employer’s honest suspicion that the

employee was not using his medical leave for its intended

purpose is enough to defeat the employee’s substantive rights

FMLA claim.”).

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employee returns from such leave, the employer must restore

the employee to the same or equivalent position held by the

employee when the leave commenced, as well as restore the

employee with equivalent benefits and conditions of

employment. Id. (citing § 2614(a)).

We have previously explained:

[W]hen employees invoke rights

granted under the FMLA,

employers may not “interfere

with, restrain, or deny the exercise

of or attempt to exercise” these

rights.3 Nor may employers

“discharge or in any other manner

discriminate against any

individual for opposing any

practice made unlawful.”4

Id. (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691

F.3d 294, 301 (3d Cir. 2012) (citations omitted)) (footnotes

added). In addition, 29 C.F.R. § 825.220(c) prohibits

employers “from discriminating or retaliating against an

employee or prospective employee for having exercised or

attempted to exercise FMLA rights.” Here, Capps has alleged

claims of FMLA interference and retaliation.

(A) FMLA Retaliation Claim

Capps claims that Mondelez discriminated against him

in violation of the FMLA by terminating his employment in

retaliation for his use of FMLA leave. Since “FMLA

retaliation claims require proof of the employer’s retaliatory

intent, courts have assessed these claims through the lens of

employment discrimination law.” Lichtenstein, 691 F.3d at

302. Accordingly, a claim such as Capps’ FMLA retaliation

claim is assessed under the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S.

3 See 29 U.S.C. § 2615(a)(1).

4 See 29 U.S.C. § 2615(a)(2).

11

792 (1973).5 See Ross, 755 F.3d at 193 (citing Lichtenstein,

691 F.3d at 302). Under the McDonnell Douglas framework,

a plaintiff must first establish a

prima facie case of

discrimination. If the plaintiff

succeeds, the defendant must

articulate a legitimate, nondiscriminatory

reason for the

adverse employment action. The

burden then shifts back to the

plaintiff to prove, by a

preponderance of the evidence,

that the articulated reason was a

mere pretext for discrimination.

5 Capps briefly asserts in conclusory fashion that this case

should be analyzed under the framework set forth in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Title VII

mixed-motive gender discrimination case). In particular,

Capps’ appellate brief includes a paragraph stating generally

that the mixed-motive framework set forth in Price

Waterhouse applies “when a plaintiff alleging unlawful

termination presents direct evidence” of discrimination, see

Appellant Br. 25 (emphasis omitted). Even assuming there is

a direct evidence requirement after Desert Palace, Inc. v.

Costa, 539 U.S. 90 (2003), other than stating this general

proposition, Capps fails to explain how the Price Waterhouse

framework applies to the specific circumstances in this case.

In any event, to the extent that Capps is arguing that this case

should be analyzed under the Price Waterhouse framework,

as opposed to the McDonnell Douglas framework, based on

allegedly direct evidence of discrimination, the record is

bereft of evidence of discriminatory intent, much less

evidence that “is so revealing of retaliatory animus that it is

unnecessary to rely on the McDonnell Douglas . . . burdenshifting

framework,” see Walden v. Georgia-Pacific Corp.,

126 F.3d 506, 512 (3d Cir. 1997); cf. Lichtenstein, 691 F.3d at

302 (“leav[ing] for another day our resolution of whether the

FMLA continues to allow mixed-motive claims in the wake

of Gross [v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)].”).

12

Ross, 755 F.3d at 193 (citations omitted).

Here, the District Court found that, “when viewing the

facts in a light most favorable to Capps, he is unable to

sustain an FMLA retaliation claim.” See Capps, 147 F.

Supp.3d at 336. First, the District Court found that Capps

cannot establish a prima facie case because “[h]e cannot

demonstrate that the proper use of his FMLA leave – a

protected activity – is causally connected to his termination.”6

Id. The Court further found that “[e]ven if Capps could

establish a prima facie case, he has not adduced any

meaningful evidence that would allow a reasonable factfinder

to find pretext.” Id.

As the District Court found, even assuming, arguendo,

that Capps could establish a prima facie case of FMLA

retaliation, Mondelez met its burden of demonstrating a

legitimate, nondiscriminatory justification for Capps’

discharge with evidence that Capps was terminated for his

misuse of FMLA leave and dishonesty surrounding the leave

in violation of Mondelez’s policies. See McDonnell Douglas,

411 U.S. at 802; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.

1994). “FMLA retaliation claims require proof of the

employer’s retaliatory intent.” Lichtenstein, 691 F.3d at 302

(emphasis added). Where an employer provides evidence that

the reason for the adverse employment action taken by the

6 To succeed on an FMLA retaliation claim, Capps must show

that (1) he invoked his right to FMLA-qualifying leave, (2) he

suffered an adverse employment decision, and (3) the adverse

action was causally related to his invocation of rights. See

Ross, 755 F.3d at 193 (citing Lichtenstein, 691 F.3d at 302).

In support of the finding of a lack of evidence demonstrating

the required causal connection, the District Court pointed to

the absence of an unusually suggestive temporal proximity

between the protected activity and the termination, as well as

the lack of evidence supporting a finding of a pattern of

antagonism towards Capps for taking FMLA leave. See

Capps, 147 F. Supp.3d at 336-37; see also Abramson v.

William Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir.

2001) (“[O]ur case law has focused on two main factors in

finding the causal link necessary for retaliation: timing and

evidence of ongoing antagonism.”).

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employer was an honest belief that the employee was

misusing FMLA leave, that is a legitimate, nondiscriminatory

justification for the discharge. See, e.g., Kariotis v. Navistar

Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997)

(quoting Gustovich v. AT&T Communications, Inc., 972 F.2d

845, 848 (7th Cir. 1992)) (holding, where the employer

provided evidence that it fired the employee because of an

honest belief that the employee committed disability fraud,

that “arguing about the accuracy of the employer’s

assessment is a distraction because the question is not

whether the employer’s reasons for a decision are ‘right but

whether the employer’s description of its reasons is honest’”)

(citation omitted).

In Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir.

2012), where the evidence demonstrated that the employer

held an honest suspicion that the employee was misusing his

FMLA leave at the time it made the decision to terminate the

employee, the Seventh Circuit found that the evidence could

not support a conclusion that the employer intentionally

discriminated against the employee for taking FMLA leave.

Id. at 827. In affirming the District Court’s Order granting

summary judgment in favor of the employer, the Seventh

Circuit in Scruggs pointed out that the employee requested

and was granted leave, took his approved leave, and returned

to work the following day, and it was not until after the

employer had received evidence of misconduct that the

employee was terminated. Id.; see also Arrigo v. Link, 836

F.3d 787, 796 (7th Cir. 2016) (“[T]he question is not whether

[the employer] was correct to believe that [the employee]

performed poorly, but rather whether he honestly believed

that she did.”).

Similarly, in Pulczinski v. Trinity Structural Towers,

Inc., 691 F.3d 996 (8th Cir. 2012), the Eighth Circuit affirmed

the District Court’s Order granting summary judgment in

favor of an employer on an employee’s FMLA discrimination

claim on the basis of evidence of the employer’s honest belief

that the employee violated company policy and the lack of

evidence showing that the employer’s explanation was

pretextual. Id. at 1007. The Eighth Circuit pointed out that

this honest belief was a legitimate, nondiscriminatory reason

for the action and that “[t]o prove that the employer’s

14

explanation was false, the employee must show the employer

did not truly believe that the employee violated company

rules.” Id. at 1003. In explaining the so-called “honest belief

rule,” the appellate court in Pulczinski stated that the “critical

inquiry in discrimination cases like this one is not whether the

employee actually engaged in the conduct for which he was

terminated, but whether the employer in good faith believed

that the employee was guilty of the conduct justifying

discharge.” Id. at 1002. The Eighth Circuit further

explained: “[The employee] must present sufficient evidence

that the employer acted with an intent to discriminate, not

merely that the reason stated by the employer was incorrect.

Taken alone, that the employer’s belief turns out to be wrong

is not enough to prove discrimination.”7 Id. at 1003.

In Medley v. Polk Co., 260 F.3d 1202 (10th Cir. 2001),

an employee claimed that her employer fired her for taking

FMLA leave. In addressing an issue of first impression, id. at

1204, the Tenth Circuit held that the trial judge erred in

failing to give a requested “Honest Belief Defense Charge” to

the jury, since an employer’s honest, albeit possibly mistaken,

belief that an employee had committed fraud, defeats an

employee’s FMLA retaliation claim, id. at 1207-08. In

support of its holding, the Tenth Circuit pointed to the

7 The Sixth Circuit has adopted a modified version of the

honest belief rule requiring employers to show that the

employer’s nondiscriminatory reason not only is honest but

also is “reasonably based on particularized facts.” See Smith

v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998); see also

Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.

2006). We join the Seventh and Eighth Circuits in explicitly

declining to follow that modified approach to the honest

belief rule. See Pulczinski, 691 F.3d at 1003; Little v. Ill.

Dep’t of Revenue, 369 F.3d 1007, 1012 n.3 (7th Cir. 2004)

(citing Flores v. Preferred Tech. Grp., 182 F.3d 512, 516 (7th

Cir. 1999)). “Where the employment action is grounded in an

honest and permissible reason, there can be no intent to

discriminate unlawfully - even if that reason is not reasonably

based on particularized facts.” Id.; see Pulczinski, 691 F.3d at

1003 (rejecting the Sixth Circuit’s modified version of the

honest belief rule as inconsistent with the statute).

15

Seventh Circuit’s reasoning in Kariotis:8 “Discrimination

statutes allow employers to discharge employees for almost

any reason whatsoever (even a mistaken but honest belief) as

long as the reason is not illegal discrimination. Thus when an

employee is discharged because of an employer’s honest

mistake, federal anti-discrimination laws offer no protection.”

Id. at 1208 (quoting Kariotis, 131 F.3d at 680).9

Here, as described above, Mondelez provided evidence

clearly supporting its legitimate, non-discriminatory

8 Kariotis, which the Tenth Circuit has described as the

“germinal case applying [the honest belief] principle in an

FMLA setting,” see Medley, 260 F.3d at 1208, affirmed

summary judgment in favor of the employer on claims

alleging that employment termination violated the ADA, Age

Discrimination in Employment Act (“ADEA”), Employee

Retirement Income Security Act (“ERISA”), and the FMLA.

The Seventh Circuit held that the employer’s honest belief

that the employee had fraudulently accepted disability

benefits following knee surgery defeated the aforementioned

claims, whether or not the employer was mistaken in

concluding that the employee actually had committed fraud.

Kariotis, 131 F.3d at 674.

9 The authorities applying the “honest belief” rule are

consistent with our precedent in comparable contexts. See

Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d

Cir. 1995) (quoting McCoy v. WGN Continental Broad. Co.,

957 F.2d 368, 373 (7th Cir. 1992)) (noting, in the context of

an ADEA case, that we “do not sit as a super-personnel

department that reexamines an entity’s business decisions . . .

[O]ur inquiry is limited to whether the employer gave an

honest explanation of its behavior”); see also Fuentes, 32

F.3d at 765 (holding, in a Title VII case, that a plaintiff

cannot discredit an employer’s proffered legitimate, nondiscriminatory

reason for termination by “simply show[ing]

that the employer’s decision was wrong or mistaken, since the

factual dispute at issue is whether discriminatory animus

motivated the employer, not whether the employer is wise,

shrewd, prudent, or competent,” and explaining that a

plaintiff must instead produce sufficient evidence to permit a

reasonable factfinder to infer that the employer did not

actually act for the asserted non-discriminatory reason).

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explanation for why Capps was discharged – its honest belief

that Capps misused his FMLA leave and was otherwise

dishonest in violation of Mondelez’s policies. Following

Capps’ AVN diagnosis in 2002 and his bilateral hip

replacements in 2004, Capps was continuously recertified for

FMLA leave during his tenure at Mondelez approximately

every six months through early 2014. There is no indication

that any of Capps’ requests for FMLA leave were denied or

that he was prohibited from returning to work after taking his

approved FMLA leave. Indeed, Capps returned to the same

position with the same benefits each time he returned from

taking his leave, and he continued to take intermittent FMLA

leave without issue through the remainder of 2013.

Moreover, there is no indication of any animus on the part of

Mondelez related to Capps taking FMLA leave prior to

receiving notice of Capps’ arrest and conviction.

It was not until Oxenford received the newspaper

article in 2014 alerting him to Capps’ DUI arrest and

conviction, that Oxenford began to investigate Capps’

attendance record to determine if any of his FMLA leave

coincided with the dates related to his arrest and conviction.

Further, the undisputed evidence indicates that when

Oxenford and McAvoy reviewed the criminal court docket

related to Capps’ DUI case, the docket reflected that the arrest

date and “court dates” appeared to coincide with days on

which Capps had taken FMLA leave. Although Capps argues

that Mondelez was mistaken in its belief that Capps misused

his leave or was otherwise dishonest with regard to the leave

taken, there is a lack of evidence indicating that Mondelez did

not honestly hold that belief. Accordingly, in light of

insufficient evidence for a reasonable factfinder to conclude

that Mondelez’s legitimate, nondiscriminatory explanation for

terminating Capps’ employment was a pretext, the District

Court properly granted summary judgment on Capps’ FMLA

retaliation claim. See McCoy, 957 F.2d at 373 (“[T]he issue

of pretext does not address the correctness or desirability of

reasons offered for employment decisions. Rather, it

addresses the issue of whether the employer honestly believes

in the reasons it offers.”).

17

(B) FMLA Interference Claim

To make a claim of interference under the FMLA, a

plaintiff must establish:

(1) he or she was an eligible

employee under the FMLA; (2)

the defendant was an employer

subject to the FMLA’s

requirements; (3) the plaintiff was

entitled to FMLA leave; (4) the

plaintiff gave notice to the

defendant of his or her intention

to take FMLA leave; and (5) the

plaintiff was denied benefits to

which he or she was entitled

under the FMLA.

Ross, 755 F.3d at 191-92 (citation omitted); see also Sommer

v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)

(observing that an interference claim requires an employee to

show that he was not only entitled to FMLA benefits but also

that he was denied those benefits). Unlike an FMLA

retaliation claim, “[a]n interference action is not about

discrimination, it is only about whether the employer

provided the employee with the entitlements guaranteed by

the FMLA.” Callison v. City of Phila., 430 F.3d 117, 120 (3d

Cir. 2005); see Scruggs, 688 F.3d at 825 (quoting Shaffer v.

Am. Med. Ass’n, 662 F.3d 439, 443 (7th Cir. 2011)) (“An

[FMLA] interference claim does not require an employee to

prove discriminatory intent on the part of the employer;

rather, such a claim ‘requires only proof that the employer

denied the employee his or her entitlements under the

Act.’”).10 Accordingly, “[b]ecause [an FMLA interference

action] is not about discrimination, a McDonnell-Douglas

10 Capps’ brief acknowledges this requirement. See Appellant

Br. 18 (citing Callison, 430 F.3d at 119) (“In order to state a

claim for interference under the FMLA, a plaintiff must show

that the plaintiff was denied benefits to which he or she was

entitled under the Act.”).

18

burden-shifting analysis is not required.” Sommer, 461 F.3d

at 399.

Here, the District Court found that Capps’ FMLA

interference claim failed because Capps was unable to satisfy

the fifth requirement – that he was denied a benefit to which

he was entitled under the FMLA. See Capps, 147 F. Supp.3d

at 335. In support of its decision, the District Court cited

Ross, where we found that “[b]ecause [the employee]

received all of the benefits to which he was entitled by taking

leave and then being reinstated to the same position from

which he left, and thus cannot satisfy the fifth prong of the

interference analysis, he fails to make a prima facie showing

of interference.” See Ross, 755 F.3d at 192. Capps returned

from his FMLA leave, including the February 14 and 15,

2013 FMLA leave, to the same position and same benefits.

(JA 13, 48-49.)

Capps argues that his termination amounted to a

deprivation of benefits and therefore interference under the

FMLA. “[W]e have made it plain that, for an interference

claim to be viable, the plaintiff must show that FMLA

benefits were actually withheld.” See Ross, 755 F.3d at 192

(citing Callison, 430 F.3d at 119). Here, Capps is unable to

show that. Under the specific circumstances in this case,

since he is unable to point to evidence in the record indicating

that he was denied a benefit to which he was entitled under

the FMLA, Mondelez was entitled to summary judgment on

the FMLA interference claim.11

11 Capps points to Erdman v. Nationwide Ins. Co., 582 F.3d

500 (3d Cir. 2009), in support of the contention that the facts

in this case constitute both FMLA retaliation and interference

claims. Id. at 509 (holding that firing an employee for a valid

FMLA leave request may constitute interference with the

employee’s FMLA rights as well as retaliation against the

employee). However, Erdman is distinguishable from this

case. In Erdman, the employee “requested FMLA leave but

was fired before the leave was scheduled to begin,” i.e.,

before the employee actually took the leave. Id. Unlike

Capps’ case, the issue in Erdman was whether an employee

must take FMLA leave to prove a retaliation claim where the

employee requested FMLA leave but was fired before

19

IV. ADA CLAIM

Finally, Capps claimed in the District Court that

Mondelez failed to accommodate his disability as required

under the ADA.12 See Capps, 147 F. Supp.3d at 340. The

District Court found that this claim “fails as a matter of law

because Capps never made a request for an accommodation.”

Id.

On appeal, Capps devotes only one paragraph to his

ADA failure-to-accommodate claim. Specifically, he argues

that “[r]equests for intermittent leave may be protected by the

ADA” and that a request for FMLA leave does not bar an

ADA retaliation claim. See Appellant Br. 29-30 (emphasis

added).13

actually using the leave. Id. at 508. It is not surprising that

such facts may constitute an interference claim and a

retaliation claim since the employee was fired before

receiving the benefit of actually taking the leave or being

reinstated to the same position following the leave. Here, of

course, Capps requested the FMLA leave in question, that

request was approved, Capps took the leave in question, and

Capps was reinstated to the same or equivalent position after

taking the approved leave.

12 Capps also included in his Second Amended Complaint

claims for retaliation and discrimination under the ADA, but

he does not specifically pursue those claims in his appellate

brief. In any event, as with Capps’ FMLA retaliation claim,

the McDonnell Douglas framework applies, and his ADA

retaliation and discrimination claims fail for the same reason

– a lack of evidence that Mondelez’s legitimate, nondiscriminatory

reason for firing Capps was a pretext. See,

e.g., Pulczinski, 691 F.3d at 1003-04, 1007 (applying the

honest belief rule to an ADA claim).

13 While the Equal Employment Opportunity Commission

(“EEOC”), as amicus curiae, takes no position on the ultimate

disposition of this case, see EEOC Br. 2 n.1, the EEOC

requests that this Court hold that a request for leave under

20

Mondelez responds that “Capps’ one-paragraph

placeholder [in his brief] should be construed as a waiver of

any argument related to the ADA.” See Appellee Br. 27.

Furthermore, Mondelez contends that the District Court

properly concluded that Capps’ request for FMLA leave,

standing alone, could not serve as an accommodation under

the ADA. It is unnecessary to address whether Capps waived

his ADA claim on appeal, since, even assuming the claim was

not waived, it is clearly without merit.

We recognize that a request for FMLA leave may

qualify, under certain circumstances, as a request for a

reasonable accommodation under the ADA, see 29 C.F.R. §

825.702(c)(2), and to the extent that the District Court held

otherwise, that was error. However, in this case, even

assuming that Capps had a disability as defined by the ADA,

that Capps was a qualified individual under the ADA, and

that Capps’ request for intermittent FMLA leave also

constituted a request for a reasonable accommodation under

the ADA, the record does not support a view that Mondelez

discriminated against Capps under the ADA or refused to

accommodate any such request.

A plaintiff bringing an ADA failure-to-accommodate

claim must establish: “(1) he was disabled and his employer

knew it; (2) he requested an accommodation or assistance; (3)

his employer did not make a good faith effort to assist; and

(4) he could have been reasonably accommodated.”

Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240,

246 (3d Cir. 2006);14 see Colwell v. Rite Aid Corp., 602 F.3d

495, 504 (3d Cir. 2010) (citing Williams v. Phila. Housing

Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004)). Here,

even assuming, arguendo, that Capps’ requests for

both the FMLA and the ADA is not inherently contradictory,

id. at 21-22.

14 Although Armstrong involved a claim under the N.J. Law

Against Discrimination (“LAD”), “[t]he requirements for

failure to accommodate claims under New Jersey’s LAD have

been interpreted in accordance with the [ADA].” Armstrong,

438 F.3d at 246 n.12.

21

intermittent FMLA leave constituted requests for a reasonable

accommodation under the ADA as well, Mondelez continued

to approve Capps’ requested leave, and indeed, Capps took

the requested leave. Thus, Mondelez provided and Capps

received the accommodation he asked for. There is clearly a

lack of evidence to show that Mondelez did not make a good

faith effort in accommodating Capps’ request for intermittent

leave. Since the record here does not support any failure to

accommodate Capps, we affirm the District Court’s grant of

summary judgment on Capps’ failure-to-accommodate claim

under the ADA. See Oss Nokalva, Inc. v. European Space

Agency, 617 F.3d 756, 761 (3d Cir. 2010) (observing that we

may affirm a judgment on any ground apparent from the

record, even if the District Court did not reach it).

For the foregoing reasons, we affirm the District

Court’s Order granting summary judgment in favor of

Mondelez.