PA: termination for excessive absenteeism: suit under ADA and FMLA unfounded.

CASE FACTS: Aurea Fogleman was employed as a pharmacy technician at Hazleton Saint Joseph Medical Center in June of 1999. She was terminated on June 20, 2000, on the grounds of excessive absenteeism and for failure to contact the hospital for three consecutive workdays. She had also been disciplined

and counseled on several occasions for violation of the hospital's dress code, repetitive tardiness, and excessive use of work telephones to make long-distance calls. On September 15, 2000, Fogleman filed a workers' compensation claim seeking payment for lost wages from May 19 to June 2, 2000, and for full disability after June 3, 2000. Fogleman's claims were granted. Subsequently, she filed a suit against the Greater Hazleton Health Alliance, Hazleton Saint Joseph Medical Center, her supervisor, the director of pharmacy, and the hospital's vice president of Human Resources. She alleged retaliatory termination in violation of Title VII of the Civil Rights Act, discrimination and failure to accommodate in violation of the Americans with Disability Act (ADA), as well as violation of the Family Medical Leave Act (FMLA). After two days of testimony before a jury, the United States District Court for the Middle District of Pennsylvania granted the defendants' motion for judgment as a matter of law. The plaintiff appealed.

COURT'S OPINION: The United States Court of Appeals, Third Circuit, affirmed the judgment of the District Court. The court held, inter alia, that the plaintiff failed to establish that she engaged in a protected activity. To advance a prima facie case of retaliation under Title VII, a plaintiff must show that (1) the employee engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action. The court rejected the plaintiff's contention that she had been subjected to sexual harassment or had been subjected to discrimination under the ADA. The court agreed that the plaintiff failed to demonstrate that she requested accommodation or assistance for any disability. The court found that a request for time off from work does not constitute a reasonable accommodation. The court concluded by finding that there was no violation of the FMLA. The court also concluded that there is no requirement under the FMLA that an employer provide accommodation to an employee to facilitate her return to work. Fogleman v. Greater Hazleton Health Alliance, 2004 WL 2965392 F.3d -PA

Meet the Editor & Publisher: A. David Tammelleo, JD. is a nationally recognized authority on health care law Practicing law for over 40 years, he concentrates in health care law with law Providence, R.I., firm of A. David Tammelleo & Associates tie has presented seminars on medical nursing and hospital law throughout the United States. In addition Ill his writings and hospital of

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