Tammy Conklin v. ABEC Inc

• Court: Court of Appeals for the Third Circuit
• Decided: May 1, 2026
• Docket: 25-1905
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 25-1905 ____________

TAMMY CONKLIN, Appellant

v.

ABEC INC ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 5:24-cv-00857) District Judge: Honorable Gail A. Weilheimer ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 13, 2026

Before: KRAUSE, MASCOTT, and FISHER, Circuit Judges.

(Filed: May 1, 2026) ____________

OPINION* ____________

FISHER, Circuit Judge.

Fired from her job, Tammy Conklin sued ABEC, Inc., alleging retaliation and

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. interference claims under the Family and Medical Leave Act of 1993 (FMLA).1 The

District Court granted ABEC summary judgment. Conklin appeals. We will affirm.2

First, on the retaliation claim, Conklin argues that the District Court erred because

there is a genuine factual dispute as to the existence of a causal connection between her

request for FMLA leave and the termination of her employment. Summary judgment is

warranted if no material fact is genuinely disputed and the movant is entitled to judgment

as a matter of law.3 To establish a prima facie case of retaliation under the FMLA,

Conklin must prove that (1) she invoked her right to FMLA leave, (2) she suffered an

adverse employment action, and (3) the two are causally related.4 Here, Conklin invoked

her right to FMLA leave when she properly submitted FMLA paperwork to ABEC

human resources personnel, and she suffered an adverse employment action when she

was terminated. But we agree with the District Court that Conklin failed to adduce

evidence from which a reasonable jury could find a causal connection between the two.

We can infer causation when the “temporal proximity” between the FMLA-

protected activity and the adverse action is “unduly suggestive.”5 But when the employee

1 29 U.S.C. §§ 2601–54. 2 The District Court exercised jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction under 28 U.S.C. § 1291. We review summary judgment orders de novo. Leonard v. Stemtech Int’l, Inc., 834 F.3d 376, 395 n.17 (3d Cir. 2016). 3 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 4 Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014). 5 Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)).

2 “relies upon the brevity of the time periods between the protected activity and alleged

retaliatory actions to prove causation,” she must also show “that the decision maker had

knowledge of the protected activity.”6 Conklin cannot overcome this latter hurdle.

Although ABEC terminated Conklin either eighteen or twenty-nine days7 after she

invoked her right to FMLA leave—possibly an unduly suggestive temporal proximity8—

nothing in the record demonstrates that ABEC’s chief operating officer, who made the

unilateral decision to terminate Conklin’s employment, knew about Conklin’s FMLA-

protected activity. Conklin did not depose any of the ABEC employees involved in her

termination and, perhaps for that reason, asks us to impute constructive knowledge to the

decision maker. That does not suffice.9

Second, Conklin argues that the District Court erred in granting ABEC summary

judgment on the interference claim. However, she forfeited this argument under our

6 Moore v. City of Phila., 461 F.3d 331, 351 (3d Cir. 2006). 7 ABEC fired Conklin twenty-nine days after she received from HR a letter outlining the process for submitting the required FMLA paperwork and eighteen days after Conklin submitted that paperwork. 8 “[T]here is no bright line rule as to what constitutes unduly suggestive temporal proximity . . . .” LeBoon, 503 F.3d at 233. Such a determination “is essentially fact- based” and “depend[s] . . . on how proximate the events actually were, and the context in which the issue came before us.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). 9 We have required actual knowledge rather than constructive knowledge. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (holding that the plaintiff “demonstrated the causal link” by showing “that the discharge followed rapidly . . . upon [defendant’s] receipt of notice of” plaintiff’s protected activity); Moore, 461 F.3d at 351 (requiring “that the decision maker ha[ve] knowledge of the protected activity” (citing Jalil, 873 F.2d at 708)).

3 precedent and practice. A party’s failure to “make [an] argument at summary judgment

below” forfeits that argument.10 Forfeiture can occur at summary judgment “even if the

party raised [the argument] earlier in the litigation.”11 In her response to ABEC’s motion

for summary judgment, Conklin failed to challenge ABEC’s arguments on the FMLA

interference claim. Conklin “cannot renew the [argument] before us,” since this Court is

not bound to “consider on appeal issues which were not presented to the district court.”12

Therefore, Conklin forfeited her argument on the FMLA interference claim.

Because Conklin failed to show that the decision maker in her termination knew

about her FMLA-protected activity, she cannot establish a prima facie case of retaliation.

Additionally, she forfeited her interference argument. Accordingly, we will affirm.

10 Bruni v. City of Pittsburgh, 941 F.3d 73, 84 n.11 (3d Cir. 2019). 11 DLJ Mortg. Cap., Inc. v. Stevens, 167 F.4th 632, 635 (3d Cir. 2026). 12 Id. (quoting Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998)).