NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 18-2124 _______________

WANDA ARANA, Appellant

v.

TEMPLE UNIVERSITY HEALTH SYSTEM _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No: 2-17-cv-00525) District Judge: Honorable Harvey Bartle, III _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on January 25, 2019

Before: SMITH, Chief Judge, CHAGARES and BIBAS, Circuit Judges

(Filed: June 5, 2019) _______________

OPINION* ______________

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. BIBAS, Circuit Judge.

Wanda Arana was not fired because she is disabled. She was fired because she repeat-

edly came back late from breaks and slept on the job. And Temple University Health Sys-

tem never refused to accommodate her disability—because she never asked for an accom-

modation. In any event, there was nothing more that it could have done to accommodate

her. So we will affirm the District Court’s grant of summary judgment for Temple Health.

I. BACKGROUND

A. Facts

Arana worked at Temple Health’s call center answering phone calls from patients and

staff at two hospitals, including emergency calls from staff. Throughout her time there,

Temple Health disciplined her for making many mistakes: misinforming patients, mishan-

dling emergency calls, misscheduling appointments, and being late too often. By March

11, 2015, she had gone through every step of Temple Health’s gradual disciplinary policy.

So under the policy, Temple Health could fire her if she made even one more mistake.

Arana has diabetes, which causes flare-ups of gastroparesis and diabetic ketoacidosis.

She began experiencing these flare-ups in March 2015. Starting on March 20, she took

continuous and then intermittent leave under the Family and Medical Leave Act (FMLA).

When she returned from her continuous leave in April, Arana felt like her supervisors be-

gan “nitpicking” her performance. App. 659.

Arana testified that she never asked Temple Health to do anything “that would have

made it easier for [her] at work with respect to [her] medical conditions.” App. 656. She

2 asked for help only once: when she went to Temple Health’s emergency room for treat-

ment, she asked to be seen sooner. And according to both her testimony and her FMLA

application, there was nothing that Temple Health could have done that would have al-

lowed her to work when she had a flare-up anyway.

Four months after Arana returned from leave, the director of the call center, Joseph

Alfonsi, got a complaint that calls were not being answered. He investigated and found that

Arana had been coming back late from her breaks for several days. And just a few days

later, one of Arana’s supervisors, Anita Mitchell, found her sleeping after she should have

returned from her break. Mitchell said that she found Arana in the break room under a

blanket with the lights off. Arana disputed that she was sleeping and said she “believe[d]”

she was on her break when Mitchell found her. App. 712. But she admitted that she had

been hunched over in the break room with the lights out.

After Mitchell told him that Arana had been caught sleeping on duty, Alfonsi decided

to fire her. Sleeping was a serious offense. Although Temple Health’s disciplinary policy

typically requires a gradual disciplinary process before firing an employee, it provides that

“unauthorized sleeping on duty” is grounds for “immediate discharge.” App. 1366. And

Temple Health fired at least one other employee when it caught her sleeping on the job.

B. Procedural history

Arana then sued Temple Health, alleging that it had violated the Americans with Disa-

bilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). The District Court

granted summary judgment for Temple Health. Arana raises three arguments on appeal:

First, she says that Temple Health fired her because she was disabled. Second, she claims

3 that Temple Health did not reasonably accommodate her disability. And third, she argues

that the District Court improperly resolved factual and credibility disputes in favor of Tem-

ple Health. We need not address the third argument because we will affirm after reviewing

the facts (and law) de novo, viewing the facts in the light most favorable to Arana. Sulima

v. Tobyhanna Army Depot,

(3d Cir. 2010). We analyze the PHRA using

the same legal standard as the ADA. Taylor v. Phoenixville Sch. Dist.,

(3d Cir. 1999).

II. TEMPLE HEALTH FIRED ARANA FOR ABANDONING HER POST AND SLEEPING ON DUTY, NOT FOR BEING DISABLED

We apply a burden-shifting framework to summary-judgment motions in employment-

discrimination cases. McDonnell Douglas Corp. v. Green,

(1973)

(Title VII); Raytheon Co. v. Hernandez,

, 49 n.3 (2003) (ADA). In a case al-

leging pretext, the plaintiff must first make out a prima facie case of discrimination. Krouse

v. Am. Sterilizer Co.,

(3d Cir. 1997). The defendant can then respond

that it fired the plaintiff for a legitimate reason.

If it makes that showing, the plaintiff

can reply that the defendant’s reason was merely a pretext for discrimination.

.

We need not address whether Arana made out a prima facie case. Even if she did, Tem-

ple Health had legitimate reasons to fire her: she came back late from breaks and slept on

the job. And these reasons were not a pretext for discrimination.

4 A. Temple Health fired Arana for abandoning her post and sleeping on duty

Temple Health fired Arana because it thought that Arana was returning late from breaks

and sleeping when she was supposed to be working. Given the importance of her job, sleep-

ing on duty was grounds for immediate firing. At her deposition, Arana said that she was

not sleeping and had not exceeded her break. But an employer may act on a legitimate,

nondiscriminatory reason even if it is “wrong or mistaken.” Fuentes v. Perskie,

(3d Cir. 1994). We focus not on what actually happened, but on what the employer

honestly believed. See Capps v. Mondelez Glob., LLC,

(3d Cir.

2017).

The key facts are not in dispute. Alfonsi reasonably believed that Arana had been com-

ing back late from her breaks. And Mitchell reasonably believed that Arana was sleeping

while on duty, even if she was not. Arana admitted that she was in the break room with the

lights out, hunched over in a chair. She never contradicted Temple Health’s evidence that

she was under a blanket, that she had been returning late from breaks for several days right

before this incident, and that Mitchell had checked to see when her break was over before

Mitchell found her in the break room.

B. Temple Health’s reasons were not pretexts for discrimination

Arana claims that Temple Health’s references to her breaks and sleeping were mere

pretexts for discrimination. But neither of her arguments holds water.

First, she says that her supervisors nitpicked her performance after she returned from

her FMLA leave. But she offers no facts to support her theory that they nitpicked her be-

cause of her disability. On the contrary, she acknowledges that they had been criticizing

5 her work long before she began taking FMLA leave. She had gone through every step of

the disciplinary policy short of termination before then. And Temple Health treated Arana

no worse than the non-disabled employee it fired for sleeping on duty.

Second, Arana notes that in discovery, Temple Health did not produce a report with her

login/logout information on the day that she allegedly slept on the job. She claims that the

District Court should have presumed that this missing report contained evidence of pretext.

We do not typically apply evidentiary presumptions at summary judgment. But if Arana

was entitled to an adverse inference at trial, she suggests, a reasonable jury might find in

her favor. If so, the District Court should not have granted summary judgment.

Whether Arana seeks a presumption at summary judgment or an adverse inference at

trial, her argument fails. When evidence is missing, a district court may presume that the

evidence was unfavorable or instruct the jury to draw an adverse inference only if it finds

that a “party acted with the intent to deprive another party of the information’s use in the

litigation.” Fed. R. Civ. P. 37(e)(2)(A) & (B); accord Brewer v. Quaker State Oil Ref.

Corp.,

(3d Cir. 1995).

Arana finds it suspicious that Temple Health cannot produce the login/logout report

even though it produced the same report for a different day. She says this discrepancy is

not explained by Alfonsi’s testimony about the reports. But the date on the other report

shows that it was pulled before it would have been routinely deleted. So we see no issue

with Alfonsi’s testimony. Even if there were one, Arana gives no reason to believe that

Temple Health intentionally destroyed the report because of this litigation. So there is no

6 basis for presuming that the report was unfavorable or instructing a jury to draw an adverse

inference.

III. TEMPLE HEALTH DID NOT FAIL TO ACCOMMODATE ARANA

Temple Health did not have to accommodate Arana’s disability because Arana did not

notify it that she needed an accommodation. And even if Arana had done so, Temple Health

could not have done anything else to accommodate her disability. To show that her em-

ployer did not provide a reasonable accommodation, a plaintiff must prove four elements:

(1) the employer knew about the employee’s disability;

(2) the employee asked for an accommodation or assistance;

(3) the employer did not make a good-faith effort to accommodate the employee; and

(4) the employee could have been accommodated.

Taylor,

(3d Cir. 1999). No reasonable jury could find for Arana on the

second and fourth elements.

A. Arana did not ask for an accommodation or assistance

An employee must say or do something to put her employer on notice that she would

like to be accommodated at work. Conneen v. MBNA Am. Bank, N.A.,

(3d Cir. 2003). Nothing Arana did gave Temple Health notice. She testified that she never

asked Temple Health for any workplace accommodation or assistance. And the one time

she asked Mitchell to help her avoid a long emergency-room wait does not count. That was

personal, not related to her work.

Nor did Arana ask for help by asking for FMLA leave. While an FMLA leave request

can sometimes count as an ADA accommodation request, an employer ordinarily satisfies

7 its duties under the ADA by granting the FMLA request. See Capps,

.

Temple Health did just that. And nothing in Arana’s request notified Temple Health that

she wanted a workplace accommodation beyond FMLA leave.

B. Temple Health could not have done anything else to accommodate Arana

Even if Arana had asked for a workplace accommodation, Temple Health could not

have done anything more to help her. A plaintiff need not identify the precise accommo-

dation she should have received. See Taylor,

. But she must “show[ ]

that a reasonable accommodation was possible.” Williams v. Philadelphia Hous. Auth. Po-

lice Dep’t,

(3d Cir. 2004) (quoting Donahue v. Consol. Rail Corp.,

(3d Cir. 2000)). Arana’s repeated testimony and her FMLA application both

insist that there was no way she could work during her flare-ups. So the only way Temple

Health could have accommodated her was by giving her time off when she had a flare-up.

And it did just that by granting her request for intermittent FMLA leave. So there are no

facts to suggest that other reasonable accommodations were possible.

* * * * *

Temple Health did not fail to accommodate Arana’s disability. And Temple Health did

not discriminate against Arana when it fired her for abandoning her post and sleeping on

duty. So we will affirm.

8