Brenda L. Erdman v. Nationwide Insurance Company

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3796
BRENDA L. ERDMAN,
Appellant,
v.
NATIONWIDE INSURANCE COMPANY,
Appellee.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 05-cv-00944)
District Judge: Honorable Christopher C. Conner
Argued November 17, 2008
Before: SCIRICA, Chief Judge, FUENTES and
HARDIMAN, Circuit Judges.
(Filed: September 23, 2009 )

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Patricia C. Zucker [Argued]
Daley Zucker Meilton Miner & Gingrich
1035 Mumma Road
Suite 101
Wormleysburg, PA 17043-0000
Attorneys for Appellant
Donald R. Keller [Argued]
Vladimir P. Belo
Bricker & Eckler
100 South Third Street
Columbus, OH 43215-0000
Attorneys for Appellee
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Brenda Erdman challenges the District Court’s summary
judgment in favor of her former employer, Nationwide
Insurance Company. The principal issue on appeal — whether
Erdman accumulated sufficient hours to qualify for leave under
the Family and Medical Leave Act (FMLA) — raises questions
of first impression in this Court.

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I.
Our review of the District Court’s grant of summary
judgment is plenary, viewing the facts in the light most
favorable to the nonmoving party. Summary judgment is
appropriate only if there are no genuine issues of material fact
such that the movant is entitled to judgment as a matter of law.
See McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009).
A.
Nationwide hired Erdman in 1980 and she held various
full-time positions until 1998, when she asked to work part-time
so she could care for her daughter Amber, who was born with
Down Syndrome. Nationwide granted this request, as well as
Erdman’s request four years later to switch to a four-day work
week, which rendered Erdman a non-exempt employee under
federal law. According to Patty Sarno, Erdman’s supervisor at
the time, Erdman was a reliable employee who regularly worked
extra hours outside the office. Indeed, Sarno consistently
authorized payment for these hours or allowed Erdman to use
them as “comp” time.
In early 2002, soon after Erdman switched to a four-day
work week, Sarno informed her that she should “put in the hours
that . . . you’re supposed to put in and nothing more than that.”
In September 2002, Erdman e-mailed Stella Getgen, who had
replaced Sarno as Erdman’s supervisor some five months
earlier, to request clarification whether she was still allowed to
work extra hours for use as “comp” time. There is no record of
any response by Getgen, who, despite this e-mail, claims that

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she first heard the phrase “comp” time in a January 2003
meeting with Erdman regarding a discrepancy in Erdman’s
accrued vacation time. After Erdman explained that she had
used “comp” time, Getgen conceded that Erdman’s vacation
time calculation was correct, and made no objection to her use
of “comp” time.
A week later, on January 28, 2003, Getgen e-mailed
Erdman to admonish her for three reasons: (1) Erdman’s
overtime was unapproved; (2) Erdman failed to consult Getgen
before visiting a policyholder’s residence; and (3) employees in
Erdman’s position were not authorized to conduct fieldwork.
Getgen concluded: “As much as we are tempted to do a
‘simple’ field investigation, there are legal and logistical reasons
that prohibit us from doing so.” Two weeks later, on February
10, 2003, Getgen for the first time advised Erdman that she
could no longer use extra hours for “comp” time.
Soon after Getgen admonished her, Nationwide informed
Erdman that her part-time position would be eliminated, but she
could work full-time instead. Erdman accepted the full-time
position, but Nationwide claims that Erdman became angry and
erratic because she was unhappy with her return to full-time
status. Over the next several weeks, Nationwide contends that
Erdman inappropriately questioned other employees about
confidential salary information, encouraged others to work
slowly to avoid driving up production standards, made malicious
accusations against Getgen, and committed various other acts of
insubordination. Erdman disputes these claims.

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At the time Erdman accepted the full-time position, she
sought clarification that Nationwide would honor her
previously-approved request for vacation during the entire
month of August, which Erdman had typically taken to prepare
Amber for school. Nationwide informed Erdman that it was
unlikely she would be allowed to take vacation in August
because of the pressing need for full-time employees in light of
the unusually large number of employees requesting vacation
that month. Erdman announced that if she could not use
vacation time in August, she would request FMLA leave
instead.
On April 14, 2003, Erdman began working full-time and
a week later she submitted paperwork requesting FMLA leave
from July 7 to August 29. A human resources employee
responded to this request by telling Erdman that “as far as the
FMLA, I probably don’t see any problems with this.”
Nationwide fired Erdman on May 9, 2003, citing her
purported behavioral problems which culminated on May 8
when Erdman used profanity during a phone conversation that
was monitored for quality control purposes. Company policy
states that personal calls are not monitored, and Erdman
prefaced a personal call with a profane disclaimer: “This is a
personal call and should not be reviewed for quality purposes,
assholes.”
B.
Alleging that Nationwide’s stated motives were
pretextual and that she was actually fired for requesting FMLA

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Erdman also brought claims under the Pennsylvania1
Human Relations Act (PHRA) and for breach of contract. The
District Court granted summary judgment to Nationwide on the
breach of contract claim and declined to exercise supplemental
jurisdiction over the PHRA claim. Neither of these claims is at
issue on appeal.
6
leave, Erdman brought federal claims under the FMLA and the
Americans With Disabilities Act (ADA). Initially, the District1
Court granted summary judgment on the FMLA claim, finding
that Erdman could not establish a cause of action — either for
interference or retaliation — because she had not accumulated
the 1,250 hours necessary to qualify as an eligible employee
under the statute. The District Court also granted summary
judgment on the ADA claim, but only to the extent that it was
based on a failure to accommodate theory. Nationwide was
denied summary judgment on Erdman’s ADA “association”
claim.
Nationwide filed a motion for reconsideration. After
briefing and oral argument, the District Court reversed itself and
granted Nationwide summary judgment on the ADA claim in its
entirety, concluding that the ADA’s “association” provision
prohibits only employment decisions based on “unfounded
stereotypes and assumptions against employees who associate
with disabled people.” Erdman v. Nationwide Ins. Co., No.
1:05-CV-0944, 2007 U.S. Dist. LEXIS 61611 at *9-10 (M.D.
Pa. Aug. 22, 2007)(quoting Den Hartog v. Wasatch Acad., 909
F. Supp. 1393, 1400 (D. Utah 1995)). Finding that
Nationwide’s actions were motivated by Erdman’s prior

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modifications to her work schedule instead of stereotypes or
unfounded assumptions, the District Court held Erdman could
not establish an ADA “association” claim.
Erdman filed this timely appeal, arguing that the District
Court erred in granting summary judgment on the FMLA and
ADA claims. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
III.
An employee is eligible for FMLA leave if she has
worked “at least 1,250 hours of service with [her] employer
during the previous 12 month period.” 29 U.S.C. § 2611(2)(A).
According to Erdman’s records, she worked 1,298.25 hours in
the relevant period, including 118.5 hours from home. In its
calculation, the District Court excluded 57 hours worked from
home prior to Erdman’s September 2002 e-mail to Getgen
asking whether she was allowed to work extra hours for use as
“comp” time, and 20 hours worked from home after Getgen’s
January 2003 e-mail to Erdman admonishing her for doing
fieldwork. The District Court found that Nationwide could not
have had constructive notice of any hours Erdman worked from
home prior to the September 2002 e-mail because Erdman had
previously been told to “put in the hours that . . . you’re
supposed to put in and nothing more than that.” The District
Court also found that constructive notice was dispelled by the
January 2003 e-mail. Consequently, the District Court counted
only 41.50 of the 118.50 hours Erdman worked from home in
calculating the total number of hours she worked in the previous

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year, which left Erdman 28.75 hours short of FMLA’s threshold
requirement.
A.
The first question is whether a reasonable jury could have
concluded that Nationwide had actual or constructive notice that
Erdman worked at least 1,250 hours, making her eligible under
the FMLA. For FMLA purposes, all work that “the employer
knows or has reason to believe . . . is being performed” counts
toward the threshold requirement. 29 C.F.R. § 785.12. The
parties agree that hours worked off-site or beyond an
employee’s regular schedule count if “[the employer] knows or
has reason to believe that an employee is continuing to work
extra hours.” 29 C.F.R. § 785.11. “[A]n employer need not
have actual knowledge of such off-site work; constructive
knowledge will suffice.” Holzapfel v. Town of Newburgh, 145
F.3d 516, 524 (2d Cir. 1998).
Nationwide does not dispute that Erdman regularly
worked outside of the office for many years, and that Sarno
consistently authorized payment for these hours or allowed
Erdman to use them as “comp” time. Nevertheless, Nationwide
cites three reasons why it had no actual or constructive
knowledge that Erdman continued to do so during the relevant
time period. First, Sarno testified that when Erdman’s position
changed from exempt to non-exempt status in 2002, she told
Erdman to “put in the hours that . . . you’re supposed to put in
and nothing more than that.” Second, Sarno was the only one
with personal knowledge that Erdman worked outside the office,
and Sarno was replaced by Getgen in 2002. Finally, Getgen told

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Erdman in January 2003 that she was “not authorized to work
outside [her] standard work hours.”
Despite the superficial appeal of Nationwide’s
arguments, they fail to persuade because they do not account for
Erdman’s use of “comp” time. To be sure, Nationwide was on
record that Erdman could not be paid for any additional hours.
But this begs the question whether she could continue — as she
had done for so many years in the past — to work outside the
office to accrue “comp” time. After Erdman became a non-
exempt employee in 2002, Sarno expressed concern about the
number of hours that Erdman “put in.” This could reasonably
be interpreted to mean that Erdman was prohibited from
“putting in” any hours for Nationwide outside of the office. Or,
it could reasonably be interpreted to mean that Erdman would no
longer be paid for more hours than she was scheduled to work
on a weekly basis. Allowing Erdman to “put in” extra hours for
later use in lieu of vacation would be entirely consistent with a
desire to eliminate overtime pay, or to ensure salary uniformity.
“Comp” time did not allow Erdman to earn overtime pay or
increase her net salary; it merely allowed her to accumulate
hours while working at home. Absent any clear indication to
the contrary from Nationwide, a reasonable jury could conclude
that the purpose of Sarno’s communication was to prohibit
Erdman from being paid for more hours than she was scheduled
to work each week, without regard to whether Erdman could
continue to accrue “comp” time.
Getgen’s January 2003 e-mail to Erdman illustrates this
point. Read in its entirety, the message has nothing to do with
Erdman working from home or accumulating “comp” time.

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Getgen enumerated three specific concerns: unapproved
overtime pay; unapproved visits to private residences; and
employees in Erdman’s position conducting fieldwork. This e-
mail does not preclude a reasonable jury from finding that
Nationwide had actual or constructive knowledge of Erdman
working from home to accrue “comp” time. There is no
mention of “comp” time anywhere in the e-mail, and the
message may be interpreted as entirely consistent with the
company’s continued acquiescence to Erdman’s accrual of
“comp” time.
Erdman’s September 2002 e-mail to Getgen casts further
doubt on Nationwide’s claim that the company prohibited
Erdman from accruing and using “comp” time. Therein,
Erdman specifically asked about “comp” time in light of
ambiguous communications regarding her hours. Nationwide
never responded to this pointed inquiry, which raises an
inference adverse to Nationwide’s position. A similar negative
inference may be drawn from the January 2003 meeting between
Erdman and Getgen, in which Erdman claims that Getgen tacitly
acquiesced to her continued accrual and use of “comp” time.
Erdman’s version of what transpired at this meeting could lead
a reasonable jury to conclude that Nationwide had actual or
constructive knowledge of Erdman’s continued use of “comp”
time.
Nationwide correctly notes that Erdman’s subjective
beliefs about company policy are irrelevant. The issue is not
what Erdman thought, but what Nationwide communicated to
her, and whether the company “acquiesced in [] the off-the-
clock work.” The record is equivocal on this point, however.

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A reasonable jury could find that Nationwide intended to
categorically prohibit all work outside of the office, in which
case Nationwide could not be charged with constructive
knowledge that Erdman continued to work outside the office.
See Davis v. Food Lion, 792 F.2d 1274, 1277 (4th Cir. 1986)
(holding that employer did not have constructive knowledge of
“secret” off-the-clock hours worked after repeated instructions
not to do so). Nevertheless, a reasonable jury could also find
that Nationwide intended to preclude Erdman from earning
overtime, while allowing her to continue to accrue “comp” time.
Nor does the fact that Getgen replaced Sarno as Erdman’s
supervisor carry the day for Nationwide. First, the January 2003
meeting could show that Getgen had personal knowledge of
Erdman’s “comp” time practices after that point. Second, as
previously discussed, Getgen’s stated concerns about Erdman’s
hours are susceptible to an interpretation that is entirely
consistent with the approval of “comp” time. Finally, even
though Getgen may have lacked personal knowledge of
Erdman’s previous use of “comp” time under Sarno, that has no
bearing on the knowledge imputed to Nationwide. It is
undisputed that Sarno allowed Erdman to accrue and use
“comp” time for many years. It is equally clear that in early
2002, Nationwide prohibited Erdman from working overtime for
pay. What remains unclear, when we consider the record in the
light most favorable to Erdman, is whether Nationwide required
her to cease and desist her longstanding practice of accruing and
using “comp” time.
Finally, we must address a policy concern raised by
Nationwide. Erdman argues that her above-average

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productivity, coupled with the company’s aggressive
performance goals, evidence Nationwide’s constructive
knowledge of her extra hours. Nationwide objects that drawing
such an inference would effectively impute constructive
knowledge of undocumented hours whenever an employer
“established aggressive productivity standards or encountered a
particularly good employee.”
It is conceivable that stellar productivity may be
probative of an employer’s constructive knowledge of extra
work hours in rare cases, but in this case the argument is
foreclosed by Erdman’s reliance on “comp” time. Because
every hour of “comp” time is effectively exchanged for an hour
of paid vacation at some point in the future, Erdman could work
no more than her scheduled hours in the long run. Therefore,
Erdman’s productivity cannot reflect constructive notice of extra
hours on Nationwide’s part.
In sum, when read in the light most favorable to Erdman,
the record indicates that a reasonable jury could conclude that
Nationwide had constructive notice of hours that Erdman
worked from home until February 10, 2003, when Erdman
concedes that Getgen finally addressed the issue and prohibited
her from accruing and using “comp” time. Counting all of the
hours that Erdman worked at home prior to that date, the record
indicates that Erdman accumulated 1,282.25 total hours in the
year before her requested leave was scheduled to begin.
Therefore, Erdman was eligible for FMLA leave for purposes of
summary judgment.

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B.
Having determined that Erdman is an eligible employee
for purposes of summary judgment, we shall address two
alternative arguments because they will affect the District
Court’s instructions to the jury.
1. Can Erdman Claim “Remedial Eligibility”?
Erdman argues that 29 C.F.R. § 825.110(d) renders her
eligible for FMLA leave
regardless of how many hours she worked because Nationwide
failed to notify her of her eligibility. The version of
§ 825.110(d) in effect at the time of Erdman’s dismissal stated:
“[i]f the employer fails to advise the employee whether the
employee is eligible prior to the date the requested leave is to
commence, the employee will be deemed eligible.”
In spite of the plain language of § 825.110(d), the District
Court rejected Erdman’s argument, citing decisions from courts
of appeals that have invalidated the regulation as expanding
FMLA eligibility beyond the statutory language. See, e.g.,
Brungart v. Bell South Telecomms., Inc., 231 F.3d 791 (11th Cir.
2000); Dormeyer v. Commerica Bank, 223 F.3d 579 (7th Cir.
2000). Erdman cites no authority to support a contrary
conclusion, but she urges us to disagree with our sister circuits
and uphold the regulation.
We find persuasive the Seventh Circuit’s analysis of this
question in Dormeyer:

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Although the Department of Labor has, like other
administrative agencies, the authority to issue
regulations to carry out the duties that Congress
has assigned to it in [the FMLA], it has no
authority to change the Act. But that is what the
regulation tries to do. It does not address an
interpretive issue that the statute leaves open, and
so the principle of the Chevron case is not in play.
The statutory text is perfectly clear and covers the
issue. The right of family leave is conferred only
on employees who have worked at least 1,250
hours in the previous 12 months. Yet under the
regulation a worker who had worked 8 hours
before seeking family leave would be entitled to
family leave if the employer neglected to inform
the employee promptly that he or she was
ineligible. And this regardless of whether the
employee had incurred any detriment as a result
of the employer’s silence.
223 F.3d at 796 (internal citations omitted).
For the reasons stated in Dormeyer, we hold that the
version of § 825.110 in effect at the time of Erdman’s dismissal
was invalid. By requiring one to work at least 1,250 hours in the
previous twelve months, Congress has defined those who are
entitled to FMLA leave. The remedial eligibility provision of
§ 825.110(d) purported to give otherwise non-eligible
employees a cause of action for an employer’s failure to respond
to an application for FMLA leave in contravention of the statute.
Our conclusion is consistent with the recent amendment
to § 825.110, which removed the remedial eligibility provision
in light of the Supreme Court’s pronouncement that a remedial
eligibility provision in 29 C.F.R. § 825.700 was invalid for

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Erdman also argues that eligibility is not required for2
FMLA retaliation claims. She takes this position “based upon
the expansiveness of the law against retaliation set forth in
Burlington Northern and Santa Fe R.R. v. White, 548 U.S. 53
(2006),” a Title VII case that made no mention of the FMLA.
But Erdman conceded that eligibility is required for both
interference and retaliation claims while opposing summary
judgment. She claims the right to raise the issue now not
because of procedural inequity in the proceedings below or
because of a change in the law, but rather because of “further
reading” while preparing this appeal. We need not address this
issue because Erdman has waived it. See Delaware Nation v.
Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006).
.
15
similar reasons. See Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81, 96 (2002) (“[Section] 825.700(a) effects an
impermissible alteration of the statutory framework and cannot
be within the Secretary’s power to issue regulations ‘necessary
to carry out’ the Act.”); 73 Fed. Reg. 67,394, 67,942 (Nov. 17,
2008) (“The final rule [] adopts the proposed changes in
paragraphs (c) and (d), deleting the ‘deeming’ provisions. In
light of the Supreme Court’s decision in Ragsdale, the
Department believes that it does not have regulatory authority to
deem employees eligible for FMLA leave who do not meet the
12-month/1,250-hour requirements, even where the employer
fails to provide the required eligibility notices.”). Accordingly,
Erdman cannot assert FMLA eligibility under § 825.110(d); she
can only be deemed eligible if the jury finds that she worked the
requisite number of hours. 2

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2. Must An Employee Take FMLA Leave To Prove A
Retaliation Claim?
Nationwide argues that if Erdman is eligible for FMLA
leave, she cannot recover on a retaliation theory because she did
not actually take leave.
We begin by noting that it would be patently absurd if an
employer who wished to punish an employee for taking FMLA
leave could avoid liability simply by firing the employee before
the leave begins. But the question is not whether an employer
may escape liability altogether; the question is whether such
action constitutes interference with the employee’s FMLA
rights, retaliation against the employee, or both.
Three provisions collectively form the basis of liability
under FMLA. Two subsections of 29 U.S.C. § 2615(a), entitled
“Interference with [FMLA] rights,” state:
(1) Exercise of rights
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge
or in any other manner discriminate against any
individual for opposing any practice made
unlawful by this subchapter.

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In addition, 29 C.F.R. § 825.220(c) prohibits employers from
“discriminating against employees or prospective employees
who have used FMLA leave.” (emphasis added).
The District Court noted that “FMLA interference claims
are derived from 29 U.S.C. § 2615(a)(1),” and that “[t]o succeed
on an interference claim, a plaintiff must demonstrate that he or
she was entitled to and denied some benefit under the FMLA.”
Erdman v. Nationwide Ins. Co., 510 F. Supp. 2d 363, 370 n.4
(M.D. Pa. 2007). Retaliation claims, the District Court stated,
“arise under 29 U.S.C. § 2615(a)(2).” Id. at 370 n.5. “To assert
a retaliation claim, a plaintiff must demonstrate that: (1) he or
she is protected under the FMLA, (2) he or she suffered an
adverse employment action, and (3) the adverse action was
causally related to the plaintiff’s exercise of his or her FMLA
rights.” Id. (citing Conoshenti v. Pub. Serv. Elec. & Gas Co.,
364 F.3d 135, 146 (3d Cir. 2004)). Under the District Court’s
statement of the law, Erdman’s retaliation claim is valid because
commencing leave is not a prerequisite.
Nevertheless, Nationwide astutely observes that the
elements stated by the District Court differ slightly from our
pronouncement in Conoshenti. In that case, we said that the first
requirement of a retaliation claim is that “[an employee] took an
FMLA leave,” Conoshenti, 364 F.3d at 146, not that she “be
protected under the FMLA,” Erdman, 510 F. Supp. 2d at 370
n.4. We noted that “[t]he circuits have taken divergent paths in
analyzing claims that an employee has been discharged in
retaliation for having taken an FMLA leave,” with some circuits
finding that such claims arise under § 2615(a)(2) and others
holding that §§ 2615(a)(1), 2615(a)(2), and 29 C.F.R.
§ 825.220(c) all give rise to retaliation claims. Conoshenti, 364
F.3d at 147 n.9 (emphasis added). We concluded that the Ninth

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Soon after Conoshenti was decided, the First Circuit3
agreed that FMLA retaliation claims must arise under
§ 825.220(c). Colburn v. Parker Hannifin/Nichols Portland
Division, 429 F.3d 325, 331 (1st Cir. 2005) (citing Conoshenti).
The First Circuit has noted that retaliation and4
interference theories might overlap in some circumstances.
Colburn, 429 F.3d at 331 (“[C]ourts have disagreed about
whether ‘interference’ refers to a category of claims separate
and distinct from those involving retaliation, or whether it
describes a group of unlawful actions, of which retaliation is a
part. The term ‘interference’ may, depending on the facts, cover
both retaliation claims and non-retaliation claims. The
distinction would matter if the standards of proof used turned on
which statutory section were pled, rather than on the nature of
the facts and the theory of the case.”) (citing, inter alia,
Conoshenti).
18
Circuit appropriately “predicated liability in such situations on
§ 825.220(c),” instead of §§ 2615(a)(1) or (a)(2). Id.3
Nationwide argues that because the regulation protects
“employees who have used FMLA leave,” § 825.220(c), and
because Conoshenti held that “to be successful on this claim, [an
employee] must show [] that he took an FMLA leave,” 364 F.3d
at 146, an employee cannot establish a retaliation claim unless
she actually commenced leave. Although Conoshenti’s
language supports Nationwide’s argument, it is not clear
whether firing an employee for requesting FMLA leave should
be classified as interference with the employee’s FMLA rights,
retaliation against the employee for exercising those rights, or
both. Significantly, Conoshenti did not involve an employee,4
like Erdman, who requested FMLA leave but was fired before
the leave was scheduled to begin.

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As for her retaliation claim, Erdman argues that the law5
of the case doctrine prohibits Nationwide from disputing the
protected activity element of her FMLA claim because it is
identical to the protected activity element of her PHRA claim,
which the District Court allowed to proceed under a retaliation
theory. Erdman, 510 F. Supp. 2d at 374-75. We express no
opinion on this argument so the District Court may consider the
19
Nationwide has cited only one case to support its broad
reading of Conoshenti. See Reid-Falcone v. Luzerne County
Cmty. Coll., No. 3:CV-02-1818, 2005 U.S. Dist. LEXIS 12713
(M.D. Pa. Jun. 28, 2005). But contrary to Nationwide’s
interpretation, Reid-Falcone does not stand for the proposition
that an employee must actually commence leave to state a
retaliation claim. Rather, Reid-Falcone held that an employee
fired after requesting maternity leave — as opposed to FMLA
leave — could not state an FMLA claim based on retaliation
because she had “fail[ed] to invoke the protections of FMLA.”
Id. at *26. The fact that her leave had not commenced was
irrelevant to the Court’s decision. Indeed, Reid-Falcone
indicates that the critical issue is invocation of FMLA rights,
which contradicts Nationwide’s reading of Conoshenti.
Simply put, this Court has never held that an employee
fired after requesting FMLA leave but before the leave begins
cannot recover for retaliation, and Nationwide cites none of our
precedents other than Conoshenti to support this proposition.
Reading Conoshenti as Nationwide urges would perversely
allow a employer to limit an FMLA plaintiff’s theories of
recovery by preemptively firing her. Accordingly, we interpret
the requirement that an employee “take” FMLA leave to
connote invocation of FMLA rights, not actual commencement
of leave. We therefore hold that firing an employee for a valid
request for FMLA leave may constitute interference with the
employee’s FMLA rights as well as retaliation against the
employee. 5

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issue upon remand.
20
IV.
Finally, we consider the District Court’s summary
judgment for Nationwide on Erdman’s ADA claim. Erdman
concedes that she cannot directly invoke ADA protection
because she is not disabled. Rather, she relies on the ADA’s
association provision, which prohibits
excluding or otherwise denying equal jobs or
benefits to a qualified individual because of the
known disability of an individual with whom the
qualified individual is known to have a
relationship or association.
42 U.S.C. § 12112(b)(4).
We first note that the association provision does not
obligate employers to accommodate the schedule of an
employee with a disabled relative. Although refusal to “mak[e]
reasonable accommodations” may constitute illegal
discrimination against a disabled employee, 42 U.S.C.
§ 12112(b)(5), the plain language of the ADA indicates that the
accommodation requirement does not extend to relatives of the
disabled. See 29 C.F.R. § 1630.8, Appendix (“It should be
noted [] that an employer need not provide the applicant or
employee without a disability with a reasonable accommodation
because that duty only applies to qualified applicants or
employees with disabilities.”). See also Den Hartog v. Wasatch
Academy, 129 F.3d 1076, 1084 (10th Cir. 1997) (“[T]he plain
language of [§§ 12112(b)(5)(A) and (B)] — the only two
provisions requiring ‘reasonable accommodation’ in Title I of
the ADA — suggests that only job applicants or employees, but
not their relatives or associates, need be reasonably
accommodated.”); Larimer v. IBM, 370 F.3d 698, 700 (7th Cir.

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Of course, Nationwide may be liable under FMLA for6
firing Erdman because of her request for time off.
21
2005) (“[T]he right to an accommodation, being limited to
disabled employees, does not extend to a nondisabled associate
of a disabled person.”) (citing Den Hartog).
The question is therefore whether Erdman has adduced
sufficient evidence from which a reasonable jury could infer that
Nationwide terminated her because of her daughter Amber’s
disability. Under the association provision, there is a material
distinction between firing an employee because of a relative’s
disability and firing an employee because of the need to take
time off to care for the relative. The statute clearly refers to
adverse employment actions motivated by “the known disability
of an individual” with whom an employee associates, as
opposed to actions occasioned by the association. Therefore,
Erdman must show that Nationwide was motivated by Amber’s
disability rather than by Erdman’s stated intention to miss work;
in other words, that she would not have been fired if she had
requested time off for a different reason. See Den Hartog, 1296
F.3d at 1085 (requiring association provision plaintiffs to show
that an “adverse employment action occurred under
circumstances raising a reasonable inference that the disability
of the relative or associate was a determining factor in the
employer’s decision”); id. at 1083 (recognizing that dismissal
for absence or tardiness is not actionable “even if the reason for
the absence or tardiness is to care for [a disabled relative]”)
(quoting H.R. Rep. No. 101-485, pt. 2, at 61-62 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 344).
Other courts have surmised that an employee would be
protected by the association provision if she were fired because
her employer feared that she might miss work to care for a
disabled relative even though she had not taken or requested
time off. See Oliveras-Sifre v. Puerto Rico Dep’t of Health, 214

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22
F.3d 23, 26 (1st Cir. 2000) (“[The association provision
prohibits termination] based on ‘unfounded stereotypes and
assumptions’ arising from the employee’s relationships with
particular disabled persons.”) (quoting Barker v. Int’l Paper
Co., 993 F. Supp. 10, 15 (D. Me. 1998)); Tyndall v. Nat’l Educ.
Centers, 31 F.3d 209, 214 (4th Cir. 1994) (noting that
termination “based on any assumption regarding future absences
related to [a relative’s] care” gives rise to liability, but that
termination “result[ing] from [an employee’s] record of past
absences and [her] clear indication that she needed additional
time off” does not). We agree with this view, which comports
with the language of the statute, because a decision motivated by
unfounded stereotypes or assumptions about the need to care for
a disabled person may be fairly construed as “because of the . . .
disability” itself. § 12112(b)(4). See 29 C.F.R. § 1630.8,
Appendix (noting that the association provision prohibits an
employer from, inter alia, refusing to hire a job applicant
because of the employer’s unfounded belief “that the applicant
would have to miss work or frequently leave work early in order
to care for [a disabled] spouse”).
In this case, the record is devoid of evidence indicating
that Nationwide’s decision to fire Erdman was motivated by
Amber’s disability. Indeed, Nationwide was aware of Amber’s
disability for many years before Erdman was fired. The most
Erdman can hope to show is that she was fired for requesting
time off to care for Amber (the basis for her FMLA claim), not
because of unfounded stereotypes or assumptions on
Nationwide’s part about care required by disabled persons.
Erdman argues that Strate v. Midwest Bankcentre, Inc.,
398 F.3d 1011 (8th Cir. 2005) supports her claim, but her
reliance on that decision is misplaced. Strate held that an
exemplary employee who was fired while on maternity leave to
care for her disabled newborn could state an ADA claim on an

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We note that a plaintiff may prevail under the7
association provision in other circumstances not at issue in this
case. For example, the Seventh Circuit requires an association
provision plaintiff to show “that his case falls in one of the three
categories in which an employer has a motive to discriminate
against a nondisabled employee who is merely associated with
a disabled person.” Larimer, 370 F.3d at 702. Larimer
described these categories as: (1) termination based on a
disabled relative’s perceived health care costs to the company;
(2) termination based on fear of an employee contracting or
spreading a relative’s disease; and (3) termination because an
employee is somewhat distracted by a relative’s disability, yet
not so distracted that he requires accommodations to
satisfactorily perform the functions of his job. Id. at 700. See
23
association theory. Erdman’s case differs from Strate in crucial
respects. In the first place, Strate’s employer was overheard
implying that her newborn’s disability was a factor justifying
termination. Id. at 1014. Second, Strate relied heavily on the
“close temporal connection” between the employer’s discovery
of the child’s disability and Strate’s termination, id. at 1019,
whereas Nationwide was aware of Amber’s disability for years
before Erdman’s termination. Third, and most significantly, the
employer’s motivations in Strate amounted to unfounded
assumptions about the need to care for a disabled child because
although the employer knew about the disability, it had no
reason to suspect that Strate would need additional time off
beyond her originally scheduled maternity leave. The same is
not true here, where Erdman was fired only after announcing her
intention to take leave to care for Amber. Accordingly, Strate
does not support Erdman’s argument.
Because no reasonable jury could conclude that Erdman
was fired “because of [Amber’s] known disability,”
§ 12112(b)(4), we will affirm the District Court’s grant of
summary judgment on Erdman’s ADA claim.7

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also 29 C.F.R. § 1630.8, Appendix (noting that the association
provision prohibits an employer from firing an employee
because of a fear that his volunteer work with AIDS sufferers
may cause the employee to contract the disease himself, or from
reducing an employee’s health benefits because of a disabled
relative). Erdman asserts none of these theories.
24
V.
For the foregoing reasons, we will affirm the District
Court’s summary judgment on Erdman’s ADA claim, but will
vacate the summary judgment on Erdman’s FMLA claim, and
remand the case for further proceedings consistent with this
opinion.

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