Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—3rd Cir.: Bus driver with sickle cell anemia fired over absenteeism gets FMLA claims revived, (Jul 10, 2025)

By Marjorie Johnson, J.D.

Though the dispatcher noted that his last absence was due to not having a babysitter, resulting in attendance points being assessed against him, he submitted for FMLA leave hours later, which the employer granted.

The Third Circuit reinstated FMLA interference and retaliation claims brought by a bus driver who suffered from sickle cell anemia and was fired from his job with the Southeastern Pennsylvania Transportation Authority (SEPTA) after his accumulation of too many attendance points, the last of which were assessed against him after he reported to the dispatcher both that he needed to be hospitalized and did not have a babysitter. In a nonprecedential opinion reversing dismissal of his claims on summary judgment, the appeals court found that triable issues existed as to whether he gave sufficient notice to invoke his FMLA rights on the date of the absence in question (Walker v. Southeastern Pennsylvania Transportation Authority, No. 24-2275 (3rd Cir. July 7, 2025, nonprecedential)).

Sickle cell anemia. The bus driver suffered from sickle cell anemia, which, among other things, caused him to experience exhaustion and bone and joint pain. He disclosed his condition when he was hired by SEPTA in March 2018, but stated that he did not require any work accommodations and that he does not often feel tired, fatigued, or sleepy during daytime. He also discussed the disease with multiple supervisors.

Last-chance agreement. The driver struggled with attendance throughout his employment and was suspended twice for absenteeism. After a series of absences that otherwise would have resulted in his discharge, he and SEPTA entered a last-chance agreement under which he agreed that he would be terminated if he again accumulated twenty “attendance points.” Employees were assessed two points for each sick day, but with his seniority the driver was entitled to three “Emergency at Home” (EAH) days each year for which he would not be assessed points.

He often used his three EAH days when dealing with his health problems to avoid accumulating attendance points. He also avoided points by requesting and receiving FMLA leave. In particular, he was granted FMLA leave in December 2019 for complications related to his sickle cell anemia; from March through June 2020 due to the COVID-19 pandemic and to being “at risk”; and (3) in June 2021 for the sickle cell episode at issue here. Nevertheless, by the end of May 2021, he had accumulated 18 points.

June 2021 absence. On June 7, 2021, he experienced pain associated with his sickle cell anemia that required his hospitalization and called SEPTA early that morning. He asked the dispatcher to mark him for an EAH day to avoid accruing points, mistakenly believing that his EAH day count had reset and that he had an available day to use.

Attendance points. While he told the dispatcher he had to go to the hospital, he also informed her that he did not have a babysitter, and SEPTA records showed that the dispatcher noted the reason for his absence as “NO_BABYSITTER.” Later that same day, he submitted an FMLA leave application to SEPTA. However, because the dispatcher recorded his absence before he had submitted the FMLA application, his June 7 absence resulted in SEPTA assessing him two attendance points, bringing him to a total of twenty points.

FMLA approved. He had another flare-up on June 8, returned to the hospital, and called in sick, which was recorded as sick leave for “SICKLE_CELL” rather than an EAH day. SEPTA approved his FMLA leave request for a period commencing with his first absence on June 7, and he returned to work on June 22. However, he was subsequently advised that he was subject to discipline due to his absences.

Grievance rejected. The union filed a grievance on his behalf, but despite knowing that SEPTA had approved his FMLA leave, the hearing officer denied his grievance, writing that while SEPTA was “sympathetic to [his] medical condition … the attendance policy is a no-fault system and allows the employee the opportunity to reduce his points each 30 days. [The driver] failed to reduce his attendance points; therefore, the next step of discipline is Discharge.” Accordingly, he was terminated.

Summary judgment. He filed this lawsuit alleging, among other claims, FMLA interference and retaliation, but failed to survive summary judgment on all claims. He appealed dismissal of his FMLA claims, both of which the district court determined failed because he did not provide adequate notice to SEPTA of his need to take FMLA leave on June 7, 2021.

Sufficient notice. Showing that notice was provided under the FMLA “is not particularly onerous,” explained the Third Circuit. While simply calling in “sick” without providing additional information is insufficient, an employee who (1) gives “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request,” 29 C.F.R. § 825.303(b), and (2) does so “as soon as practicable under the facts and circumstances of the particular case,” § 825.303(a), has provided sufficient notice to invoke his FMLA rights.

Here, a reasonable jury could conclude that the bus driver provided adequate notice of his intent to invoke his FMLA rights on June 7. While he admittedly informed the dispatcher when he called in that morning that that he did not have a babysitter, which the dispatcher later noted as the reason for his absence, he also testified that he informed the dispatcher of his need to go to the hospital and filed his FMLA application within hours of the call. Moreover, SEPTA granted his FMLA leave for a period covering his absence on July 7, and “could not legally penalize [the driver] for an absence that became FMLA leave before his firing.” Accordingly, the case was remanded for the district court’s further analysis of the remaining elements of his FMLA claims.

The case is No. 24-2275.

Judge: Shwartz, P.

Attorneys: Nisha Krishnan (The Lacy Employment Law Firm) for Isaiah Walker. Elizabeth M. Catalano (Montgomery McCracken Walker & Rhoads) for Southeastern Pennsylvania Transportation Authority.

Companies: Southeastern Pennsylvania Transportation Authority

Cases: EmployeeLeave Discharge Retaliation DelawareNews NewJerseyNews PennsylvaniaNews