In September, 2007, Lichtenstein was transferred to UPMC’s medical center in Braddock, PA, and was fired 4 months later. Because this was a new position for her, Lichtenstein was subject to a six-month probationary period in which the medical center’s progressive disciplinary policy did not apply. Lichtenstein worked as a psychiatric technician, and although Lichtenstein received a merit-based raise to her salary in October 2007, one month after moving to Braddock, she had attendance problems and scheduling difficulties. From October through December, 2007, she was tardy six times, absent twice, and requested changes to her schedule on multiple occasions after the deadline for requesting such changes had passed. 

On December 1, 2007, Lichtenstein was scheduled to work a 16-hour shift, but co-workers reported to her supervisor, Lidey, that she planned to call-off if she could not find a replacement. One co-worker said Lichtenstein needed the day off to do school work and/or attend a concert. Lidey asked for an explanation, and Lichtenstein replied that she needed that day off to work on a school project. Lidey denied the request. On December 1, Lichtenstein called off (called in sick). Lidey considered firing her at that point, but did not, and did not issue a written warning. In late December, Lidey thanked Lichtenstein for volunteering to fill people’s shifts on both Christmas Eve and Christmas Day. But three weeks later, Lidey fired Lichtenstein. According to the medical center, the final straw occurred on December 30, when Lichtenstein arrived at work several hours late and departed several hours early, according to timesheets. But this incident was not recorded on Lichtenstein’s staff log, and Lidey could not recall when she first learned about it. Further, the medical center maintains that the 11-day delay between the incident and Lichtenstein’s termination was explained by the fact that Lidey wet on vacation from December 31 to January 7, and Lidey’s plan to fire Lichtenstein on January 8th was thwarted by Lichtenstein’s request for leave that morning. 

Lichtenstein’s first scheduled shift after Lidey went on leave was January 3, 2008, but Lichtenstein did not come to work because early that morning, her mother was rushed to a hospital in an ambulance after collapsing from a sudden excruciating pain in her leg. Lichtenstein called the nursing supervisor prior to noon to say that she could not make her shift. Lichtenstein told the supervisor that she was currently in the emergency room, that her mother had been taken to the hospital by ambulance, and that she would not be able to work that day. The medical center was unable to find someone to take Lichtenstein’s shift, so the temporary supervisor emailed Lidey to inform her that Lichtenstein had called off, but did not tell her what Lichtenstein had said, and the absence was marked in Lichtenstein’s staff log as “sick mom.” 

But the mother’s condition was serious, and she remained in the hospital until January 8, with Lichtenstein and her brother in attendance. Lichtenstein did work her shifts on January 4th and 5th, but while at work, made no further mention of her mother’s condition. On January 7, Lidey returned, forwarded the email she received from the temporary supervisor to her own supervisor, Harris, with the notation “Please pull up Jamie’s [Lichtenstein] call offs for me.” Harris also gave Lidey a copy of the staff log with the notation “sick mom” for Lichtenstein’s January 3rd absence. But Lidey claims she did not see this notation when she reviewed the log. Lidey testified that she planned to terminate Lichtenstein on January 8, but was foiled when Lichtenstein contacted the hospital early that morning to request leave to care for her mother. Lichtenstein emailed Lidey, saying:

“I am not sure if you are aware, but my mother has been in the hospital since Thursday [January 3rd]…Once she is released she might require some assistance Under these circumstances and at this point in time, I would like to, as well as need to, take a leave of absence. Who do I speak with to aid me in this process?” 

Lidey, who receives hundreds of emails every day, claims she did not read this email. Lidey insists that she terminated Lichtenstein “before I knew anything about her mom being ill or needing to ask for leave.” But this contention is at odds with other evidence, including the fact that Lidey responded to Lichtenstein’s email. Also Brown testified that Lidey told her Lichtenstein’s mother was sick, that Lichtenstein needed time off to care for her, and that Lidey told Brown this before Lichtenstein’s termination.
 

1. What were the legal issues in this case? What did the appeals court decide?

2. Why does the appeals court majority conclude that the plaintiff may have provided adequate notice of her need for FMLA leave? Why does the dissenting judge disagree? Which side has the more persuasive argument? Why?

3. Why can’t the medical center simply terminate this probationary employee for her attendance problems? What is the evidence that the taking of FMLA leave was used as a “negative factor” in the termination decision?

4. What is the difference between an FMLA “interference” and an FMLA discrimination “ (retaliation) claim?

5. What are the practical implications of this case? What should the medical center have done differently? Would the FMLA permit extension of her probationary period?