author: RESTREPO, Circuit Judge.

text:
    Fredrick CAPPS, Appellant v. MONDELEZ GLOBAL, LLC
    No. 15-3839
    United States Court of Appeals, Third Circuit.
    Argued July 12, 2016
    (Filed: January 30, 2017)

      Christine E. Burke [ARGUED], Ari R. Karpf, Karpf Karpf & Cerutti, 3331 Street Road, Suite 128, Two Greenwood Square, Bensalem, PA 19020, Counsel for Appellant.
    Leslie M. Greenspan [ARGUED], Joe H. Tucker, Jr., Tucker Law Group, 1617 John F. Kennedy Boulevard, Suite 1700, Philadelphia, PA 19103, Counsel for Appel-lee.
    Jeremy D. Horowitz [ARGUED], Equal Employment Opportunity Commission, 131 M Street, N.E., 5th Floor, Washington, D.C. 20507, Counsel for Amicus Curiae.
    Before: FUENTES , SHWARTZ and RESTREPO, Circuit Judges

       Honorable Julio M. Fuentes assumed senior status on July 18, 2016.

   OPINION

RESTREPO, Circuit Judge.

Frederick Capps challenges the District Court’s Order granting summary judgment in favor of Capps’ former employer, Mondelez Global, LLC (“Mondelez”), one of the largest manufacturers of snack food and beverage productions in the United States. Specifically, Capps argues that the District Court erred in granting Monde-lez’s summary judgment motion on Capps’ claims that Mondelez: (1) interfered with his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §' 2601 et seq.; (2) acted in retaliation to Capps’ proper use of FMLA leave; and (3) violated the Americans with Disabilities Act, as amended (“ADA”), 42 U.S.C. § 12101 et seq.

For the reasons that follow, we affirm the District Court’s Order granting summary judgment in favor of Mondelez. In so doing, we hold that an employer’s honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim. We also confirm that, under certain circumstances, a request for intermittent FMLA leave may also constitute a request for a reasonable accommodation under the ADA, but under the circumstances in this particular case, even assuming, arguendo, such a request was made, there is a lack of evidence that Mondelez failed to provide any requested accommodation.

I. Background

Mondelez’s predecessor, Nabisco, hired Capps in November 1989. At all relevant times to this action, Capps held the position of mixer, which required him to operate a mixing machine that makes dough.

Mondelez has maintained a policy that an employee is entitled to FMLA leave for a “serious health condition of the employee that makes the employee unable to perform one or more of the essential functions of his/her position.” (JA 451.) An employee may use intermittent FMLA leave when it is a “medical necessity,” and the employee must provide notice of the leave “as soon as practicable.” (JA 451-52.)

Any employee who wishes to take FMLA leave due to his own serious health condition must provide the company with a certification from his health care provider. Company policy also provides: “As with all communications with the Company, the submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination.” (JA 452.)

Mondelez also has a policy entitled “Dishonest Acts on the Part of Employees” (“Dishonest Acts Policy”), which is considered a “Major Rule.” (JA 449, 457.) Violations of “Major Rules” are considered inexcusable offenses that “will result in immediate suspension pending investigation, which could lead to termination.” (JA 449, 457.) Mondelez’s Dishonest Acts Policy includes the warning that “THE COMPANY WILL NOT TOLERATE DISHONESTY ON THE PART OF ITS EMPLOYEES, WHETHER IT BE COMMITTED AGAINST THE COMPANY, ANOTHER EMPLOYEE, ITS CUSTOMERS, OR OTHERS EITHER DURING OR AFTER WORKING HOURS” and that “ANY EMPLOYEE FOUND GUILTY OF A DISHONEST ACT WOULD BE SUBJECT TO DISMISSAL.” (JA 449 (emphasis in original).)

Capps suffers with Avascular Necrosis (“AVN”), which was described by Aron Guttin, D.O., Capps’ treating physician, as “a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells.” (JA 312.) As a result of the AVN, Capps developed arthritis in both hips which necessitated bilateral hip replacement in or about 2003.

He has experienced severe pain at times in the pelvic region, thighs and hips, sometimes lasting for days or weeks at a time. Therefore, he requested intermittent time off from work when flare-ups occurred. Capps was certified for intermittent FMLA leave following his hip replacements, and thereafter throughout his tenure at Mondelez, he was continuously re-certified approximately every six months for intermittent FMLA leave for his condition until his employment was terminated in 2014.

The certification supporting Capps’ approved FMLA leave covering January 24, 2013 through July 28, 2013 was completed by Dr. Guttin who certified that Capps was unable to perform certain job functions as a result of his condition. Where the certification form required Dr. Guttin to “identify the job functions the employee is unable to perform,” Dr. Guttin responded that Capps “requires full bedrest during exac-erbations.” (JA 334.)

Dr. Guttin further stated that “[t]his year [the episodes] have been more severe [and] more frequent than years prior” and that Capps “experiences temporary periods of inflammation that are debilitating and require anti-inflammatory medication and rest.” (JA 334, 335.) Mondelez’s third-party FMLA administrator, WorkCare, approved this request under the FMLA, and the approval noted that Capps “may need to be off work 1-2 times every month for a duration of up to 14 days per episode for incapacity and treatment appointments.” (JA 342.)

On Monday, February 11 and Tuesday, February 12, 2013, Capps took FMLA leave due to leg pain, and he returned to work for a full shift on Wednesday, February 13, 2013. Capps was scheduled to work on Thursday, February 14, 2013, but he called Mondelez’s phone system and the FMLA message line on February 14th stating he would be late to work because of leg pain. Later that day, he again called the FMLA message line and Mondelez’s phone system stating that he would be taking a full day of FMLA leave since the pain had not subsided. Dr. Guttin also signed Capps’ FMLA certification form dated February 14th.

Capps testified at his deposition that his wife was out of the country that week on a business trip and that because he didn’t “know how to cook,” he had to “call out or go out” for his meals. (JA 279.) Capps further testified that at approximately 6:30 p.m. on the 14⅛ he drove to a local pub, which was not more than one and a half miles from' his home, to “get something to eat” (JA 279). According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half (2½) to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home.

Capps testified that after leaving the pub, at or around 9:00 p.m. he was stopped by police. The Bensalem Township police drove Capps to the hospital for a blood test, which resulted in a reading of a blood alcohol concentration level of 0.339%— more than four times the legal limit in Pennsylvania. Capps testified that he was released from jail early the next morning on Friday, February 15, 2013. He further testified that he woke up on the 15th “probably about 10, 11 o’clock” and his “legs were bothering [him] again.” (JA 46.) He stated that he “just hung around the house, just wasn’t feeling good” and “took some Aleve again.” (JA 46.)

Capps was scheduled to begin his shift that Friday afternoon at 1 p.m. on February 15th. However, on the 15th, he called Mondelez’s phone system and the FMLA message line indicating that he would.be using FMLA leave due to leg pain.

Capps returned to work on Monday, February 18, 2013. Upon returning to work, he performed the same work and received the same salary and benefits as before taking FMLA leave. He did not report his arrest to anyone at Mondelez; nor was he required to under Mondelez’s policies. Upon recertification, Capps was approved for FMLA leave from July 31, 2013 through January 30, 2014.

On August 7, 2013, Capps pled guilty to the charge of Driving Under the Influence of Alcohol (“DUI”), and he served 72 hours in jail immediately following the guilty plea hearing. His sentence also included probation, costs and fines, and suspension of his driver’s license.

In early 2014, William Oxenford, a Human Resources (“HR”) Manager at Mondelez, became aware of Capps’ DUI conviction and sentence by finding in Ox-enford’s company mailbox a newspaper article reporting the same. . Oxenford asked Barbara McAvoy, an employee in the HR department, and Nancy Pace, administrative assistant to the plant manager, to investigate Capps’ attendance record to determine if Capps had any absences during the time frame of Capps’ arrest and conviction.

Although neither Oxenford nor McAvoy were attorneys, and they did not understand the meaning of all the docket entries, upon reviewing the criminal court docket related to Capps’ conviction, Oxen-ford and McAvoy noticed that Capps’ arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. For instance, Capps’ arrest date, February 14, 2013, was a day on which Capps had called out on FMLA leave. He also called out on FMLA leave the next day. In addition, he called out of work using FMLA leave on other dates that appeared on the court docket: June 4, 2013 (“Appearance and Waiver of Arraignment”) and October 15, 2013 (“ARD Court”).

Oxenford and McAvoy confronted Capps and his union representative with this information at a meeting on February 26, 2014. In response, Capps promised to provide documentation to support his FMLA leave on the days in question, and Capps was suspended pending further investigation.

Upon being suspended, Capps submitted to Mondelez an undated letter from Dr. Guttin confirming the aforementioned dates Capps had taken FMLA leave during the week of February 11, 2013 due to his “hip pathology” (JA 407). The undated letter further stated that Capps had taken FMLA leave on June 3 and 4, 2013 due to his hip pathology, and also that he had a court date on June 7, 2013 but “waived his right for that appearance.” (JA 407.) Oxen-ford was suspicious of the undated letter which included legal information from Dr. Guttin regarding scheduled court dates and certain legal rights that Capps had waived. Mondelez subsequently received a nearly identical letter dated February 27, 2014 from Dr. Guttin.

Capps also submitted to Mondelez an unsigned first page only of a letter dated May 31, 2013 addressed to Capps from his attorney in the DUI matter confirming some of the dates related to his DUI action. On April 21, 2014, nearly two months after he was suspended and promised to provide documentation (and one month after receiving notice of his termination), Capps provided a complete copy of that 2-page letter. After Capps had been terminated, he presented a second letter from his DUI attorney dated March 26, 2014 confirming that Capps attended court proceedings on May 9, 2013 and August 7, 2013 and that Capps was incarcerated from August 7, 2013 to August 10, 2013.

Capps was notified of his termination of employment by letter dated March 21, 2014, effective February 26, 2014. That decision was made by Oxenford and .the plant manager, Rusty Moore, in conjunction with Mondelez’s legal department. The letter confirmed that Capps’ termination was based on his violation of the Dishonest Acts Policy. The termination letter further stated: ‘You claimed to be out due to [ ] FMLA related issues on multiple dates. The documentation you produced does not support your claim of [ ] FMLA related absences.” (JA 404.)

Following Capps’ termination, Mondelez retained the services of an investigator. The investigator reported on April 25, 2014 that a detective from the police department indicated that Capps had been released from custody from his DUI arrest at 6:00 a.m. on the morning following the arrest.

Capps completed a Grievance Form on March 27, 2014 claiming he was “unlawfully terminated.” (JA 405.) Mondelez offered Capps reinstatement without back pay on April 28, 2014, and Capps rejected the offer of reinstatement on May 13, 2014.

Capps initiated this lawsuit on July 18, 2014. He filed his Second Amended Complaint on October 16, 2014 alleging claims of interference and retaliation in violation of the FMLA, violations of the ADA, and violations of the Pennsylvania Human Relations Act (“PHRA”). Following discovery, Mondelez filed a motion for summary judgment on July 27, 2015, and on that same date Capps filed a cross-motion for partial summary judgment on his FMLA interference claim.

By Memorandum and Order filed November 24, 2015, the District Court granted Mondelez’s summary judgment motion and denied Capps’ cross-motion. See Capps v. Mondelez Global LLC, 147 F.Supp.3d 327, 330 (E.D. Pa. 2015). The District Court granted summary judgment on Capps’ FMLA interference claim due to Capps’ inability to show that he was denied a benefit to which he was entitled under the FMLA. Id. at 335. The District Court granted summary judgment on Capps’ FMLA retaliation claim because the record evidence showed that Mondelez based its decision to terminate Capps’ employment on an honest belief that Capps misused that leave. Id. at 330, 339-40. Finally, the District Court granted summary judgment on Capps’ ADA claim because, although Capps requested and received intermittent leave under the FMLA, he never made a request for an accommodation under the ADA. Id. at 340.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291.

Our review of the District Court’s grant of summary judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853, 859 (3d Cir. 2014). A moving party is entitled to summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a material fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable inferences must be drawn in favor of the nonmoving party. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir. 2009).

III. FMLA Claims

The FMLA provides, in relevant part, that “eligible employees are entitled to 12 workweeks of leave during any 12-month period due to an employee’s own serious health condition.” Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014) (citing 29 U.S.C. § 2612(a)(1)). Under the FMLA, when an employee returns from such leave, the employer must restore the employee to the same or equivalent position held by the employee when the leave commenced, as well as restore the employee with equivalent benefits and conditions of employment. Id. (citing § 2614(a)).

We have previously explained:

[W]hen employees invoke rights granted under the FMLA, employers may not “interfere with, restrain, or deny the exercise of or attempt to exercise” these rights. Nor may employers “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful.”

Id. (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012) (citations omitted)) (footnotes added). In addition, 29 C.F.R. § 825.220(c) prohibits employers “from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.” Here, Capps has alleged claims of FMLA interference and retaliation.

(A) FMLA Retaliation Claim

Capps claims that Mondelez discriminated against him in violation of the FMLA by terminating his employment in retaliation for his use of FMLA leave. Since “FMLA retaliation claims require proof of the employer’s retaliatory intent, courts have assessed these claims through the lens of employment discrimination law.” Lichtenstein, 691 F.3d at 302. Accordingly, a claim such as Capps’ FMLA retaliation claim is assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Ross, 755 F.3d at 193 (citing Lichtenstein, 691 F.3d at 302). Under the McDonnell Douglas framework,

a plaintiff must first establish a prima facie case of discrimination. If the plaintiff succeeds, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. The burden then shifts back to the plaintiff to prove, by a preponderance of the evidence, that the articulated reason was a mere pretext for discrimination.

Ross, 755 F.3d at 193 (citations omitted).

Here, the District Court found that, “when viewing the facts in a light most favorable to Capps, he is unable to .sustain an FMLA retaliation claim.” See Capps, 147 F.Supp.3d at 336. First, the District Court found that Capps cannot establish a prima facie case because “[h]e cannot demonstrate that the proper use of his FMLA leave — a protected activity — is causally connected to his termination.” Id. The Court further found that “[e]ven if Capps could establish a prima facie case, he has not adduced any meaningful evidence that would allow a reasonable fact-finder to find pretext.” Id.

As the District Court found, even assuming, arguendo, that Capps could establish a prima facie case of FMLA retaliation, Mondelez met its burden of demonstrating a legitimate, nondiscriminatory justification for Capps’ discharge with evidence that Capps was terminated for his misuse of FMLA leave and dishonesty surrounding the leave in violation of Monde-lez’s policies. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). “FMLA retaliation claims require proof of the employer’s retaliatory intent.” Lichtenstein, 691 F.3d at 302 (emphasis added). Where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge. See, e.g., Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (quoting Gustovich v. AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)) (holding, where the employer provided evidence that it fired the employee because of an honest belief that the employee committed disability fraud, that “arguing about the accuracy of the employer’s assessment is a distraction because the question is not whether the employer’s reasons for a decision are ‘right but whether the employer’s description of its reasons is honest’ ”) (citation omitted).

In Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012), where the evidence demonstrated that the employer held an honest suspicion that the employee was misusing his FMLA leave at the time it made the decision to terminate the employee, the Seventh Circuit found that the evidence could not support a conclusion that the employer intentionally discriminated against the employee for taking FMLA leave. Id. at 827. In affirming the District Court’s Order granting summary judgment in favor of the employer, the Seventh Circuit in Scruggs pointed out that the employee requested and was granted leave, took his approved leave, and returned to work the following day, and it was not until after the employer had received evidence of misconduct that the employee was terminated. Id.; see also Arrigo v. Link, 836 F.3d 787, 796 (7th Cir. 2016) (“[T]he question is not whether [the employer] was correct to believe that [the employee] performed poorly, but rather whether he honestly believed that she did.”).

Similarly, in Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012), the Eighth Circuit affirmed the District Court’s Order granting summary judgment in favor of an employer on an employee’s FMLA discrimination claim on the basis of evidence of the employer’s honest belief that the employee violated company policy and the lack of evidence showing that the employer’s explanation was pretextual. Id. at 1007. The Eighth Circuit pointed out that this honest belief was a legitimate, nondiscriminatory reason for the action and that “[t]o prove that, the employer’s explanation was false, the employee must show the employer did not truly believe that the employee violated company rules.” Id. at 1003. In explaining the so-called “honest belief rule,” the appellate court in Pulczinski stated that the “critical inquiry in discrimination cases like this one is not whether the employee actually engaged in the conduct for which he was terminated, but whether the employer in good faith believed that the employee was guilty of the conduct justifying discharge.” Id. at 1002. The Eighth Circuit further explained: “[The employee] must present sufficient evidence that the employer acted with an intent to discriminate, not merely that the reason stated by the employer was incorrect. Taken alone, that the employer’s belief turns out to be wrong is not enough to prove discrimination.” Id. at 1003.

In Medley v. Polk Co., 260 F.3d 1202 (10th Cir. 2001), an employee claimed that her employer fired her for taking FMLA leave. In addressing an issue of first impression, id. at 1204, the Tenth Circuit held that the trial judge erred in failing to give a requested “Honest Belief Defense Charge” to the jury, since an employer’s honest, albeit possibly mistaken, belief that an employee had committed fraud, defeats an employee’s FMLA retaliation claim, id. at 1207-08. In support of its holding, the Tenth Circuit pointed to the Seventh Circuit’s reasoning in Kariotis: “Discrimination statutes allow employers to discharge employees for almost any reason whatsoever (even a mistaken but honest belief) as long as the reason is not illegal discrimination. Thus when an employee is discharged because of an employer’s honest mistake, federal anti-discrimination laws offer no protection.” Id. at 1208 (quoting Kariotis, 131 F.3d at 680).

Here, as described above, Mondelez provided evidence clearly supporting its legitimate, non-discriminatory explanation for why Capps was discharged — its honest belief that Capps misused his FMLA leave and was otherwise dishonest in violation of Mondelez’s policies. Following Capps’ AVN diagnosis in 2002 and his bilateral hip replacements in 2004, Capps was continuously recertified for FMLA leave during his tenure at Mondelez approximately every six months through early 2014. There is no indication that any of Capps’ requests for FMLA leave were denied or that he was prohibited from returning to work after taking his approved FMLA leave. Indeed, Capps returned to the same position with the same benefits each time he returned from taking his leave, and he continued to take intermittent FMLA leave without issue through the remainder of 2013. Moreover, there is no indication of any animus on the part of Mondelez related to Capps taking FMLA leave prior to receiving notice of Capps’ arrest and conviction.

It was not until Oxenford received the newspaper article in 2014 alerting him to Capps’ DUI arrest and conviction, that Oxenford began to investigate Capps’ attendance record to determine if any of his FMLA leave coincided with the dates related to his arrest and conviction. Further, the undisputed evidence indicates that when Oxenford and McAvoy reviewed the criminal court docket related to Capps’ DUI case, the docket reflected that the arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. Although Capps argues that Mondelez was mistaken in its belief that Capps misused his leave or was otherwise dishonest with regard to the leave taken, there is a lack of evidence indicating that Mondelez did not honestly hold that belief. Accordingly, in light of insufficient evidence for a reasonable fact-finder to conclude that Mondelez’s legitimate, nondiscriminatory explanation for terminating Capps’ employment was a pretext, the District Court properly granted summary judgment on Capps’ FMLA retaliation claim. See McCoy, 957 F.2d at 373 (“[T]he issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons it offers.”).

(B) FMLA Interference Claim

To make a claim of interference under the FMLA, a plaintiff must establish:

(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.

Ross, 755 F.3d at 191-92 (citation omitted); see also Sommer v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006) (observing that an interference claim requires an employee to show that he was not only entitled to FMLA benefits but also that he was denied those benefits). Unlike an FMLA retaliation claim, “[a]n interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir. 2005); see Scruggs, 688 F.3d at 825 (quoting Shaffer v. Am. Med. Ass’n, 662 F.3d 439, 443 (7th Cir. 2011)) (“An [FMLA] interference claim does not require an employee to prove discriminatory intent on the part of the employer; rather, such a claim ‘requires only proof that the employer denied the employee his or her entitlements under the Act.’”). Accordingly, “[b]ecause [an FMLA interference action] is not about discrimination, a McDonnell Douglas burden-shifting analysis is not required.” Sommer, 461 F.3d at 399.

Here, the District Court found that Capps’ FMLA interference claim failed because Capps was unable to satisfy the fifth requirement — that he was denied a benefit to which he was entitled under the FMLA. See Capps, 147 F.Supp.3d at 335. In support of its decision, the District Court cited Ross, where we found that “[b]eeause [the employee] received all of the benefits to which he was entitled by taking leave and then being reinstated to the same position from which he left, and thus cannot satisfy the fifth prong of the interference analysis, he fails to make a prima facie showing of interference.” See Ross, 755 F.3d at 192. Capps returned from his FMLA leave, including the February 14 and 15, 2013 FMLA leave, to the same position and same benefits. (JA 13, 48-49.)

Capps argues that his termination amounted to a deprivation of benefits and therefore interference under the FMLA. “[W]e have made it plain that, for an interference claim to be viable, the plaintiff must show that FMLA benefits were actually -withheld.” See Ross, 755 F.3d at 192 (citing Callison, 430 F.3d at 119). Here, Capps is unable to show that. Under the specific circumstances in this case, since he is unable to point to evidence in the record indicating that he was denied a benefit to which he was entitled under the FMLA, Mondelez was entitled to summary judgment on the FMLA interference claim.-

IV. ADA Claim

Finally, Capps claimed in the District Court that Mondelez failed to accommodate his disability as required under the ADA. See Capps, 147 F.Supp.3d at 340. The District Court found that this claim “fails as a matter of law because Capps never made a request for an accommodation.” Id.

On appeal,. Capps devotes only one paragraph to his ADA failure-to-aeeommodate claim. Specifically, he argues that “[r]e-quests for intermittent leave may be protected by the ADA” and that a request for FMLA leave does not bar an ADA retaliation claim. See Appellant Br. 29-30 (emphasis added).

Mondelez responds that “Capps’ one-paragraph placeholder [in his brief] should be construed as a waiver of any argument related to the ADA.” See Appellee Br. 27. Furthermore, Mondelez contends that the District Court properly concluded that Capps’ request for FMLA leave, standing alone, could not serve as an accommodation under the ADA. It is unnecessary to address whether Capps waived his ADA claim on appeal, since, even assuming the claim was not waived, it is clearly without merit.

We recognize that a request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable accommodation under the ADA, see 29 C.F.R. § 825.702(c)(2), and to the extent that the District Court held otherwise, that was error: However, in this case, even assuming that Capps had a disability as defined by the ADA, that Capps was a qualified individual under the ADA, and that Capps’ request for intermittent FMLA leave also constituted a request for a reasonable accommodation under the ADA, the record does not support a view that Mondelez discriminated against Capps under the ADA or refused to accommodate any such request.

A plaintiff bringing an ADA failure-to-accommodate claim must establish: “(1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated.” Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006); see Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (citing Williams v. Phila. Housing Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004)). Here, even assuming, arguendo, that Capps’ requests for intermittent FMLA leave constituted requests for a reasonable accommodation under the ADA as well, Mondelez continued to approve Capps’ requested leave, and indeed, Capps took the requested leave. Thus, Mondelez provided and Capps received the accommodation he asked for. There is clearly a lack of evidence to show that Mondelez did not make a good faith effort in accommodating Capps’ request for intermittent leave. Since the record here does not support any failure to accommodate Capps, we affirm the District Court’s grant of summary judgment on Capps’ failure-to-accommodate claim under the ADA. See Oss Nokalva, Inc. v. European Space Agency, 617 F.3d 756, 761 (3d Cir. 2010) (observing that we may affirm a judgment on any ground apparent from the record, even if the District Court did not reach it).

IV. Conclusion

For the foregoing reasons, we affirm the District Court’s Order granting summary judgment in favor of Mondelez.

      . Because the PHRA is coextensive with the applicable federal law, the conclusions herein are equally applicable to Capps' claims under the PHRA. See, e.g., Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (noting that "courts ... generally interpret the PHRA in accord with its federal counterparts”).

      . In support of its holding that Mondelez’s honest belief defeated Capps' FMLA claim, the District Court cited two non-precedential opinions, Warwas v. City of Plainfield, 489 Fed.Appx. 585, 588 (3d Cir. 2012) (citing Crouch v. Whirlpool Corp., 447 F.3d 984, 986 (7th Cir. 2006)) ("[A]n employer may defeat an FMLA claim if the discharge was based upon the employer's honest belief that the plaintiff either misused or failed to use her medical leave for the intended purpose.”), and Parker v. Verizon Pa., Inc., 309 Fed.Appx. 551, 563 (3d Cir. 2009) (finding no FMLA violation where termination of employment was due to employer’s honest belief that employee misrepresented his health condition in violation of the employer’s Business Code of Conduct). Both Parker and Warwas rely on Seventh Circuit case law in support of application of the honest belief defense. See, e.g., Crouch, 447 F.3d at 986 ("[A]n employer's honest suspicion that the employee was not using his medical leave for its intended purpose is enough to defeat the employee’s substantive rights FMLA claim.”).

      . See 29 U.S.C. § 2615(a)(1).

      . See 29 U.S.C. § 2615(a)(2).

      . Capps briefly asserts in conclusory fashion that this case should be analyzed under the framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (Title VII mixed-motive gender discrimination case). In particular, Capps’ appellate brief includes a paragraph stating generally that the mixed-motive framework set forth in Price Waterhouse applies "when a plaintiff alleging unlawful termination presents direct evidence” of discrimination, see Appellant Br. 25 (emphasis omitted). Even assuming there is a direct evidence requirement after Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), other than stating this general proposition, Capps fails to explain how the Price Waterhouse framework applies to the specific circumstances in this case. In any event, to the extent that Capps is arguing that this case should be analyzed under the Price Water-house framework, as opposed to the McDonnell Douglas framework, based on allegedly direct evidence of discrimination, the record is bereft of evidence of discriminatory intent, much less evidence that "is so revealing of retaliatory animus that it is-unnecessary to rely on the McDonnell Douglas ... burden-shifting framework,” see Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997); cf. Lichtenstein, 691 F.3d at 302 ("leav[ing] for another day our resolution of whether the FMLA continues to allow mixed-motive claims in the wake of Gross [v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)].”).

      . To succeed on an FMLA retaliation claim, Capps must show that (1) he invoked his right to FMLA-qualifying leave, (2) he suffered an adverse employment decision, and (3) the adverse action was causally related to his invocation of rights. See Ross, 755 F.3d at 193 (citing Lichtenstein, 691 F.3d at 302). In support of the finding of a lack of evidence demonstrating the required causal connection, the District Court pointed to the absence of an unusually suggestive temporal proximity between the protected activity and the termination, as well as the lack of evidence supporting a finding of a pattern of antagonism towards Capps for taking FMLA leave. See Capps, 147 F.Supp.3d at 336-37; see also Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001) ("[0]ur case law has focused on two main factors in finding the causal link necessary for retaliation: timing and evidence of ongoing antagonism.”).

      . The Sixth Circuit has adopted a modified version of the honest belief rule requiring employers to show that the employer’s nondiscriminatory reason not only is honest but also is “reasonably based on particularized facts.” See Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998); see also Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006). We join the Seventh and Eighth Circuits in explicitly declining to follow that modified approach to the honest belief rule. See Pulczinski, 691 F.3d at 1003; Little v. Ill. Dep't of Revenue, 369 F.3d 1007, 1012 n.3 (7th Cir. 2004) (citing Flores v. Preferred Tech. Grp., 182 F.3d 512, 516 (7th Cir. 1999)). “Where the employment action is grounded in an honest and permissible reason, there can be no intent to discriminate unlawfully— even if that reason is not reasonably based on particularized facts.” Id.; see Pulczinski, 691 F.3d at 1003 (rejecting the Sixth Circuit’s modified version of the honest belief rule as inconsistent with the statute).

      . Kariotis, which the Tenth Circuit has described as the "germinal case applying [the honest belief] principle in an FMLA setting,” see Medley, 260 F.3d at 1208, affirmed summary judgment in favor of the employer on claims alleging that employment termination violated the ADA, Age Discrimination in Employment Act ("ADEA”), Employee Retirement Income Security Act ("ERISA”), and the FMLA. The Seventh Circuit held that the employer’s honest belief that the employee had fraudulently accepted disability benefits following knee surgery defeated the aforementioned claims, whether or not the employer was mistaken in concluding that the employee actually had committed fraud. Kariotis, 131 F.3d at 674.

      . The authorities applying the "honest belief” rule are consistent with our precedent in comparable contexts. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995) (quoting McCoy v. WGN Continental Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) (noting, in the context of an ADEA case, that we “do not sit as a super-personnel department that reexamines an entity’s business decisions ... [Ojur inquiry is limited to whether the employer gave an honest explanation of its behavior”); see also Fuentes, 32 F.3d at 765 (holding, in a Title VII case, that a plaintiff cannot discredit an employer’s proffered legitimate, nondiscriminatory reason for termination by "simply show[ing] that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent,” and explaining that a plaintiff must instead produce sufficient evidence to permit a reasonable factfinder to infer that the employer did not actually act for the' asserted non-discriminatory reason).

      . Capps’ brief acknowledges this requirement. See Appellant Br. 18 (citing Callison, 430 F.3d at 119) ("In order to state a claim for interference under the FMLA, a plaintiff must show that the plaintiff was denied benefits to which he or she was entitled under the Act.”).

      .Capps points to Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009), in support of the contention that the facts in this case constitute both FMLA retaliation and interference claims. Id. at 509 (holding that firing an employee for a valid FMLA leave request may constitute interference with the employee’s FMLA rights as well as retaliation against the employee). However, Erdman is distinguishable from this case. In Erdman, the employee "requested FMLA leave but was fired before the leave was scheduled to begin,” i.e., before the employee actually took the leave. Id. Unlike Capps' case, the issue in Erdman was whether an employee must take FMLA leave to prove a retaliation claim where the employee requested, FMLA leave but was fired before actually using the leave. Id. at 508. It is not surprising that such facts may constitute an interference claim and a retaliation claim since the employee was fired before receiving the benefit of actually taking the leave or being reinstated to the same position following the leave. Here, of course, Capps requested the FMLA leave in question, that request was approved, Capps took the leave in question, and Capps was reinstated to the same or equivalent position after taking the approved leave.

      . Capps also included in his Second Amended Complaint claims for retaliation and discrimination under the ADA, but he does not specifically pursue those claims in his appellate brief. In any event, as with Capps’ FMLA retaliation claim, the McDonnell Douglas framework applies, and his ADA retaliation and discrimination claims fail for the same reason — a lack of evidence that Mondelez's legitimate, nondiscriminatory reason for firing Capps was a pretext. See, e.g., Pulczinski, 691 F.3d at 1003-04, 1007 (applying the honest belief rule to an ADA claim).

      . While the Equal Employment Opportunity Commission ("EEOC”), as amicus curiae, takes no position on the ultimate disposition of this case, see EEOC Br. 2 n.l, the EEOC requests that this Court hold that a request for leave under both the FMLA and the ADA is not inherently contradictory, id. at 21-22.

      . Although Armstrong involved a claim under the NJ. Law Against Discrimination ("LAD”), "[t]he requirements for failure to accommodate claims under New Jersey’s LAD have been' interpreted in accordance with the [ADA].” Armstrong, 438 F.3d at 246 n.12.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: GRAND JURY MATTER #3 John Doe, Appellant
    No. 15-2475
    United States Court of Appeals, Third Circuit.
    Argued: January 12, 2016
    (Opinion filed: January 27, 2017)

      Scott A. Resnik, Esquire (Argued), Michael M. Rosensaft, Esquire, Katten Mu-chin Rosenman LLP, 575 Madison Avenue, 11th Floor, New York, New York 10022
    Karl S. Myers, Esquire, Andrew K. Stutzman, Esquire, Stradley Ronon Stevens & Young, 2005 Market Street, Suite 2600, Philadelphia, PA 19103, Courisel for Appellant
    Zane David Memeger, Esquire, Robert A. Zauzmer, Esquire, Joel M. Sweet, Esquire, Mark B. Dubnoff, Esquire (Argued), Office of the United States Attorney, 615 Chestnut St., Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

      Before: McKEE, Chief Judge , AMBRO and SCIRICA, Circuit Judges

       Judge Theodore McKee concluded his term as Chief of the United States Court of Appeals for the Third Circuit on September 30, 2016. Judge D. Brooks Smith became Chief Judge on October 1, 2016.

   PER CURIAM.

This appeal presents an unusual question of appellate jurisdiction: May we continue' to exercise jurisdiction over an appeal of an evidentiary ruling in a grand jury proceeding even after the grand jury has returned both an indictment and a superseding indictment? We conclude that, so long as the grand jury investigation continues, we retain jurisdiction and thus can resolve the controversy.

With jurisdiction, we turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney’s work product of confidentiality based on evidence suggesting only that the client had thought about using that product to facilitate a fraud, not that the client had actually done so. Because an actual act to further the fraud is required before attorney work product loses its confidentiality and we know of none here, we reverse.

I.

Company A, John Doe, his lawyer, and Doe’s business associate are the subjects of an ongoing grand jury investigation into an allegedly fraudulent business scheme. After the Government obtained access to an email Doe claims was privileged, it asked the District Court for permission to present it to the grand jury. The Court granted permission, finding that, although the email was protected by the work-product privilege, the crime-fraud exception to that privilege applied. Doe then filed an interlocutory appeal, requesting that our Court reverse the District Court’s order.

While the appeal was pending, the grand jury viewed the email in question. It then indicted Doe, his lawyer, and Doe’s business associate for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), conspiracy to commit fraud, mail fraud, wire fraud, and money laundering. Thereafter the grand jury was discharged and a new grand jury was empaneled. It too saw the disputed email, and in December 2016 returned a superseding indictment that did not contain new charges but revisions to the previous ones. The grand jury investigation, however, continues still. What follows fleshes out this factual and procedural backdrop.

Doe was the sole owner of Company A and its president. Nonetheless a November 2008 document purports to memorialize Doe’s sale of 100% of the shares of Company A to Company B for $10,000. Doe’s business associate is the sole owner of Company B. Following this purchase agreement, Doe claims that the business associate engaged Doe to be responsible for Company A’s day-to-day operations. However, numerous filings and tax documents suggested that Doe maintained control and ownership of Company A even after Doe’s stock in it was purportedly transferred.

Over the last decade and a half multiple individuals have sued Doe and his businesses in state courts around the country based on Doe’s business practices. One such lawsuit was a class action filed against Company A in Indiana state court. In it the plaintiffs alleged that Company A’s business practices violated various Indiana state laws. They sought to hold Doe accountable for these violations. However, during this litigation Doe stated in a deposition in 2014 that he had transferred ownership of Company A to Company B. Doe’s business associate then represented that Company A was no longer in business and had limited assets. Shortly after Doe’s deposition, the Indiana plaintiffs settled their claims for approximately $260,000, about 10% of the value attorneys for the plaintiffs had put on them.

Thereafter the Government empaneled a grand jury to investigate Doe and his business associate. Its theory is that Doe owned Company A but tricked the plaintiffs into thinking that he had sold it to his business associate to encourage the plaintiffs to settle for a lower value. This relies on the premise that Doe has deep pockets but his business associate does not.

In the course of its investigation, the grand jury subpoenaed Doe’s accountant requesting that he provide the Government with Doe’s personal and corporate tax returns. Among other things, these tax documents revealed that Doe had claimed 100% ownership of Company A every tax year from 2008 through 2012. The accountant also told an IRS agent that, at some time in 2013, Doe’s lawyer informed him that Doe had sold Company A in 2008. He also informed investigators that he might have taken notes on this conversation. The Government requested them, and the accountant’s attorney sent the Government three documents.

One of the documents was an email Doe had sent to the accountant on July 16, 2013, forwarding an email that Doe’s lawyer had sent to Doe four days earlier that referenced an ongoing litigation. The attorney email advises Doe of the steps he needed to take to correct his records so that they reflect that the business associate, not Doe, owned Company A since 2008. When Doe forwarded this email to his accountant, he simply wrote: “Please see the seventh paragraph down re; my tax returns. Then we can discuss this.” There is no evidence that Doe ever amended his returns or did anything else, apart from forwarding the email, to follow up on his attorney’s advice. Indeed, the accountant’s recollection is that Doe’s attorney later said not to go through with the amendments by telling the accountant to “stand by” for further guidance. It never came.

The day after the accountant provided this email to the Government, the accountant’s attorney sought to recall it on the ground that it was privileged and had been inadvertently included in his client’s production. The accountant’s counsel, however, also told the Government that his client believed the email was asking the accountant to perform an accounting service, not a legal service. The Government argued that under these circumstances Doe waived any privilege that might have otherwise attached to his lawyer’s email. It did, however, temporarily refrain from presenting it to the grand jury and asked the District Court in January 2015 for permission to do so, which Doe opposed.

The Court ruled in the Government’s favor. Its rationale was that Doe did not forward the email to his accountant to seek legal advice. Lacking that precondition, no attorney-client privilege attached to the document. However, the Court did find that the attorney work-product privilege attached to the email because the accountant could not be considered an adversary. It then concluded that the crime-fraud exception to the work-product privilege applied. On this basis, the Government could present the email to the grand jury.

Immediately after the District Court made its decision, Doe filed an interlocutory appeal requesting that we reverse its order. As noted above, while the appeal to our Court was pending the grand jury saw the email and later returned a 17-count indictment charging Doe, his lawyer, and Doe’s business associate with RICO conspiracy, conspiracy to commit fraud, mail fraud, wire fraud, and money laundering.

We requested supplemental briefing from the parties on whether Doe’s appeal was moot in light of the indictment. We also asked the Government to inform us whether the grand jury had been discharged. In response, it explained that the grand jury had been discharged shortly after it returned the indictment. The Government also informed us that a new grand jury had been empaneled, was investigating new charges against Doe and others, and it was considering a superseding indictment. Accordingly, both Doe and the Government asserted that the appeal was not moot due to the continuing investigation (though the Government still challenged our jurisdiction). We issued an opinion holding that we lacked jurisdiction, and Doe sought rehearing.

Following the rehearing petition, the Government changed its mind and contends that Doe’s appeal is now moot. It has informed us that it showed the disputed email to the new grand jury in September 2016 (before the initial opinion of our panel issued), and the grand jury returned a superseding indictment in December 2016 (after our initial opinion). However, that grand jury is still investigating other charges relating to ownership of Company A, though the Government represents that it currently has no plans to seek additional charges based on the email.

II.

This appeal thus presents a novel procedural fact pattern that complicates the issue of our appellate jurisdiction. Generally, courts of appeals have jurisdiction over “final decisions” of the district courts. 28 U.S.C. § 1291. But “[w]hen a district court orders a witness — whether a party to an underlying litigation, a subject or target of a grand jury investigation, or a complete stranger to the proceedings — to testify or produce documents, its order generally is not considered an immediately appealable final decision under § 1291.” See In re Grand Jury (ABC Corp.), 705 F.3d 133, 142 (3d Cir. 2012) (internal alterations, citations, and quotation marks omitted). Thus disclosure orders are not final and cannot typically be challenged by an immediate — that is, interlocutory — appeal.

To obtain immediate appellate review of a disclosure order, the order’s target must ordinarily comply with what is known as the “contempt rule”: he “must refuse compliance, be held in contempt, and then appeal the contempt order.” Id. at 142-43 (citations and quotation marks omitted). The party may immediately appeal a district court’s contempt order because it is a final judgment imposing penalties on the willfully disobedient party in what is effectively a separate proceeding. Id. at 143.

However, in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), the Supreme Court carved out an exception to the contempt rule. It applies when a “disinterested” third party controls a privilege holder’s documents and is ordered to produce them. See ABC Corp., 705 F.3d at 138. Because the third party is unlikely to risk contempt to obtain an immediate appeal, and because the privilege holder may not refuse to obey a court order to which he is not subject, Perlman allows the privilege holder to take an immediate appeal. Id.

In this context, Perlman provided appellate jurisdiction at the beginning of our case. The email before us was produced in response to a subpoena addressed exclusively to Doe’s accountant, who “lack[s] a sufficient stake in the proceeding to risk contempt.” Id. at 145. Indeed, the accountant gave the email to the Government without telling Doe, so Doe was “powerless to avert the mischief.” Id. at 144 (quoting Perlman, 247 U.S. at 13, 38 S.Ct. 417). The Government contends, however, that we should no longer exercise jurisdiction because the first grand jury returned an indictment and the succeeding grand jury returned a superseding indictment.

The grand jury proceedings have yet to conclude, however. On at least two occasions we have continued to exercise jurisdiction even after grand juries returned indictments. In the first case, the Government appealed an adverse ruling on a grand jury subpoena. At the outset of the appeal, our jurisdiction was clear because Congress had specifically given the Government the right to seek immediate review. See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1040 (3d Cir. 1980) (citing 18 U.S.C. § 3731). As the appeal was pending, however, the grand jury returned an indictment. We nonetheless concluded that, as long as the indictment did not render the appeal moot, we had jurisdiction to reach the merits. Because in that case the indictment “did not bring the grand jury’s proceedings to [their] conclusion,” a live controversy remained and our jurisdiction was intact. Id.

The second decision, which involved Congressman Chaka Fattah and was issued less than two years ago, is even more compelling because it, like our case, arose because of Perlman. At the time Fattah filed his Perlman appeal, he was, like Doe, being investigated by a grand jury. Just as in our case, his status changed when the grand jury, after oral arguments in our Court but before we reached a decision, returned an indictment. See In re Search of Elec. Commc’ns in the Account of chakafattah@gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516, 521 n.2 (3d Cir. 2015) (“Fattah”). However, because his appeal related to the still-ongoing review of his emails (thus giving us a live controversy), we continued to exercise jurisdiction per Perlman even after the indictment. Id. at 529-30.

Sound judicial efficiency concerns underlie our Johanson and Fattah decisions and weigh in favor of continuing to exercise jurisdiction even post-indictment. When we are able to dismiss an appeal for lack of jurisdiction as soon as it is filed, the process continues uninterrupted in the trial court, and we'are able to wait until all the appellate issues are wrapped up after a final judgment. But because in limited circumstances we take pre-indictment appeals and begin to decide them, we should not reflexively dismiss those appeals— wasting the parties’ effort as well as ours — simply because an indictment is filed. Instead, if grand jury proceedings continue, we may still exercise jurisdiction in order to remedy future harm.

Consider our case, which has been on our docket since June 2015. By the time Doe was indicted nearly ten months had passed, and the parties had fully briefed the case and presented oral arguments to us. If we then send the case back to the District Court on the rationale that our jurisdiction was pulled by the indictment, we would do so with it likely that the issue would return if there is a conviction. And if Doe is convicted and files an appeal, the parties will need to re-brief and re-argue the same issue that we could have resolved already. Thus in cases where we accept an appeal when it is filed, efficiency favors finishing what we started.

To be sure, an intervening indictment can (and often will) moot an interlocutory appeal. For instance, through this appeal Doe asks us. to prevent the grand jury from relying on an email that he argues is confidential. If after the indictment the grand jury investigation had ended, any harm from exposure to the email already would have occurred. It would make sense in those circumstances to hold off until after the criminal proceedings are over before determining whether the grand jury proceeding were tainted.

But those are not our facts. The grand jury investigation continues, even after the new grand jury saw the email and issued a superseding indictment. Although the Government contends that. the “grand jury easily can continue investigating questions relating to the ownership of [Doe’s company] without reexamining the email or considering any charges related to the email,” it may yet return another indictment based on the issue of the company’s ownership — the very subject of that email. Gov’t 28(j) Letter (Dec. 29, 2016). The grand jury cannot erase from its memory an email about Company A’s ownership while evaluating new charges relating to that issue. And though the Government contends it currently “has no plans” to put this email to further use during the continuing investigation, there is no guarantee that its pláns will not change. Pet. Reh’g Opp’n at 4. Therefore, in our case, as in Johanson, these two indictments “did not bring the grand jury’s proceedings to [their] conclusion,” so there is still potential harm we can prevent. Johanson, 632 F.2d at 1040. The purpose of this appeal thus remains the same as when it was first filed: deciding whether an email that was inadvertently disclosed may be used as part of an ongoing grand jury investigation when that disclosure plausibly violates the attorney work-product privilege.

As long as we had jurisdiction at the outset, Doe’s case is guided by our analysis of the Government’s appeal in Jo-hanson and by our decision in Fattah. As in those cases, the indictment and superseding indictment did not destroy jurisdiction that properly existed beforehand. If the controversy is live enough that the case is not moot, we should decide it.

III.

Having concluded that our appellate jurisdiction continues, we now address the merits and hold that the crime-fraud exception to the attorney work-product doctrine does not apply to the email at issue. One of the exception’s two requirements — the use of the communication in furtherance of a fraud — is lacking. The use-in-furtherance requirement provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.

Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe’s lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure “promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.” Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1428 (3d Cir. 1991). Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe’s case against those suing him. See id.

Yet work-product protection, though fundamental to the proper functioning of the legal system, is not absolute. As relevant here, the crime-fraud exception operates to prevent the perversion of the attorney-client relationship. It does so by allowing disclosure of certain communications that would otherwise be confidential. “[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the [lawyer or client] was committing or intending to commit a crime or fraud, and (2) that the ... attorney work product was used in furtherance of that alleged crime or fraud.” ABC Corp., 705 F.3d at 155.

The Government can readily satisfy the first requirement. Though ultimately it will be up to a jury to determine whether Doe committed fraud, there is at least a reasonable basis to believe he did. Even setting aside the email, the Government has a recording where Doe allegedly brags about defrauding the class action plaintiffs in the Indiana suit. He purportedly admits in that recording to telling his associate — the same one who was supposed to have already purchased Company A — “I’ll pay you ten grand a month if you will step up to the plate and say that you [own the company] and upon the successful completion of the lawsuit [I’ll] give you fifty grand.”

This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that “evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.” In re Chevron Corp., 633 F.3d 153, 166 (3d Cir. 2011). Rather, the second requirement — use in furtherance — exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan “has passed beyond words and is [actually] on foot.” Hyde v. United States, 225 U.S. 347, 388, 32 S.Ct. 793, 56 L.Ed. 1114 (1912) (Holmes, J., dissenting).

To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer’s services have been “misused.” In re Grand Jury Investigation, 445 F.3d 266, 279 (3d Cir. 2006). Only in that limited circumstance— misuse of work product in furtherance of a fraud — does the scale tip in favor of breaking confidentiality.

Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government “does not have to show that the intended crime or fraud was accomplished, only that the lawyer’s advice or other services were misused.” Id. (quoting In re Public Defender Serv., 831 A.2d 890, 910 (D.C. 2003)).

But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to “discuss” it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer’s work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer’s suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.

The District Court gave two reasons for its conclusion that Doe used his lawyer’s work product in furtherance of a fraud. First, it suggested that Doe, in forwarding the email to his accountant, “took [his lawyer’s] advice” about amending the tax returns. J.A. 16. It is not clear what the Court meant by this because, as it acknowledged, Doe “never followed through with amending” the returns. Id. Second, the Court said that the failure to follow through “is of no consequence” as long as Doe intended, as of the time he forwarded the email, to amend the returns. Id. This is no doubt an accurate statement of the law. See ABC Corp., 705 F.3d at 155. The problem is that there is simply no record evidence suggesting that Doe had ever made up his mind.

None of this should suggest that, in the event Doe is convicted (based on the superseding indictment) and appeals, he should automatically get a new trial because the Government used the protected work product. That is because the Government could avoid a retrial by showing the error was harmless. Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). We express no opinion on that question.

Many appeals involving grand jury proceedings will become moot after the return of an indictment. But the presence of a new grand jury that is continuing to investigate even after issuing a superseding indictment makes this case out-of-lane. As a live controversy remains, an indictment does not automatically preclude us from deciding it. When we do so, we conclude that the crime-fraud exception to the attorney work-product privilege does not apply to the email at issue. We therefore reverse the decision allowing the breach of that privilege.

      . In response to Appellant John Doe’s Petition for En Banc Rehearing (which also requests panel rehearing, a presumption in any event under Third Circuit Internal Operating Procedure 9.5.1), the panel grants panel rehearing, vacates its earlier opinion, and issues this opinion.

      . We use pseudonyms to refer to the grand jury subjects to protect the secrecy of the grand jury investigation and the anonymity of the subjects.

      . It argued that the collateral order doctrine does not supply a basis for appellate jurisdiction. We agree. The doctrine allows us to hear an appeal of an interlocutory order that "(1) conclusively determine[s] the disputed question; (2) resolvéis] an important issue completely separable from the merits of the action; and (3) [is] effectively unreviewable on appeal from a final judgment.” Bines v. Kulaylat, 215 F.3d 381, 384 (3d Cir. 2000) (internal quotation marks omitted). The third requirement cannot be met here because "flawed grand jury proceedings can be effectively reviewed by [our] court and remedied after a conviction has been entered and all criminal proceedings have been terminated in the district court.” See In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1039 (3d Cir. 1980). As we discuss below, however, a different doctrine confers appellate jurisdiction.

      . The Government, in opposing rehearing, now argues that Perlman does not apply because it already had possession of the document from the accountant and the District Court merely permitted the grand jury to read it. Thus "[n]obody ever faced a threat of contempt.” Pet. Réh’r. Opp. at 6. True enough, there was no threat of contempt because Doe never had the opportunity to challenge or prevent the accountant’s production to the Government in the first place. But if Perlman permits a privilege holder to sue immediately without the threat of contempt in play because that holder cannot himself disobey a disclosure order not directed at him, the lack of a contempt threat here does not take this principle out of play.

      . The Government also contends this appeal is moot for an unrelated reason. It argues that Doe has waived attorney-client protections because his pretrial memorandum indicates that he might rely on the advice-of-counsel defense. See Travelers Cas. & Sur. Co. v. Ins. Co. of N. Am., 609 F.3d 143, 164 (3d Cir. 2010) (recognizing that attorney-client confidentiality protections may be waived if the client asserts a defense based on his reasonable reliance on the attorney’s advice) (citation omitted). We disagree. That Doe’s trial strategy has changed given the development of this case does not mean he has waived the issues he continues to challenge on appeal.


author: PER CURIAM:

text:
    CLAIMANT ID 100250022, Requesting Party-Appellant v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP America Production Company; BP, P.L.C., Objecting Parties-Appellees
    No. 16-30258
    United States Court of Appeals, Fifth Circuit.
    Filed January 25, 2017
    Steven L. Nicholas, Esq., Robert T. Cunningham, Stephen C. Olen, Esq., Allison White Smalley, Cunningham Bounds, L.L.C., Mobile, AL, for Requesting Party-Appellant.

      Richard Cartier Godfrey, Esq., James Andrew Langan, Esq., Chicago, IL, Jeffrey Bossert Clark, Sr., Esq., Washington, DC, Kirkland & Ellis, L.L.P., Don Keller Haycraft, Liskow & Lewis, P.L.C., New Orleans, LA, for Objecting Parties-Appel-lees.
    Before JOLLY, HIGGINBOTHAM and PRADO, Circuit Judges.
   PER CURIAM:

Alabama Coastal Radiology, P.C. (“ACR”), filed a claim under the Business Economic Loss (“BEL”) Framework of the Deepwater Horizon Economic Loss and Property Damage Settlement Agreement. The Court Supervised Settlement Program (“CSSP”) denied the claim, and an Appeal Panel affirmed the CSSP’s denial. ACR requested that the district court grant review of the CSSP’s decision, but ACR’s request was denied. ACR now appeals the district court’s denial of discretionary review. We AFFIRM.

I.

This case relates to the Deepwater Horizon Economic Loss and Property Damage Settlement Agreement (“Settlement Agreement”), which was reached in the wake of the 2010 Deepwater Horizon oil spill incident. As a result of its obligations under the Settlement Agreement, BP has distributed millions of dollars in damages to affected entities. In re Deepwater Horizon, 910 F.Supp.2d 891, 903-04 (E.D. La. 2012), aff'd, 739 F.3d 790 (5th Cir. 2014).

ACR attempted to obtain compensation as a Multi-Facility Business under the BEL Framework of the Settlement Agreement. ACR is a group of sixteen radiologists. Infirmary Health Services (“IHS”), a separate entity from ACR, owns several hospitals where ACR provides radiology services. In each hospital, the ACR radiologists interpret imaging scans taken by the hospital; the scans are reviewed in a designated location referred to as a “reading room.” According to ACR’s certified public accountant, ACR does not have a physical office and outsources all of its administrative tasks. IHS contracted with ACR to provide the radiology services; IHS owns the “reading room” space and all of the equipment ACR uses to carry out its imaging scan review services.

ACR submitted a BEL claim under the Multi-Facility Business Framework for a reading room located inside Infirmary 65, a hospital situated in Mobile, Alabama. The Settlement Agreement allows for business claims that “include separate specialized frameworks addressing Business Economic Loss Claims by MULTI-FA-CILITY BUSINESSES.” Exhibit 5 of the Agreement defines “multi-facility business” as “[a] business entity that, during the period April 1, 2010 through December 31, 2010, maintained Facilities in more than one location and had at least one Facility within the Gulf Coast Areas.” A “Facility” is then defined as “[a] separate and distinct physical location of a Multi-Facility Business at which it performs or manages its operations.” Policy 467, enacted by the CSSP, expands upon the definition of “Facility” and provides that an entity must satisfy three elements to be classified as a “Facility” under the Agreement: It must be (1) “[a] separate and distinct physical structure or premises”; (2) “[ojwned, leased or operated by the Business Entity”; and (3) “[a]t which the Business Entity performs and/or manages its operations.” Under the “Overall Criterion” section of Policy 467, the CSSP explains that “[a]n Entity does not ‘perform’ or ‘manage’ operations at a location unless it can identify the expenses and revenues, if any, associated with the operations at that location separately from the expenses and revenues of other locations owned, leased or operated by the Entity.”

The CSSP denied ACR’s claim. It explained in its denial notice that ACR had failed to meet all three elements of the definition of “Facility.” ACR then requested a denial summary from the CSSP for additional explanation. It received the following summary:

[ACR] only has a contract to provide radiology services at the facilities. The Claimant’s Attorney also explained that the Claimant does not have an office space at the facilities for which they pay rent or lease expenses.... According to Policy 467, this Claimant does not have the option of filing a separate claim for operations performed at one of the hospitals. The claim should be closed, as the Claimant has filed a separate claim for a location that is not a facility.

ACR requested re-review of the denial after submitting a statement from its CPA and photographs of the reading room. The CSSP denied the claim again after re-review, and again after ACR requested reconsideration of the post-re-review denial notice. ACR appealed to an Appeal Panel. The Appeal Panel affirmed the denial of ACR’s claim, explaining that “Claimant does not pay rent or lease expenses on the reading room ... [and] [t]here is not evidence that Claimant pays for janitorial services, electricity, or other items a tenant normally has.” The Panel also announced that its decision “[would] stand as the Settlement Program’s final determination on this claim.”

Pursuant to the procedure for appeals to federal court arising out of the application of the Settlement Agreement, ACR appealed to Judge Barbier of the Eastern District of Louisiana. See In re Deepwater Horizon, 785 F.3d 1008, 1007 (5th Cir. 2015) (“A party may then appeal the Appeal Panel’s determination to the district court of Judge Barbier in the Eastern District of Louisiana, which has discretion to hear such appeals.”). The district court denied discretionary review of the decision by the Appeal Panel. ACR timely appealed.

II.

The standard of review that we apply to the district court’s denial of discretionary review is abuse of discretion. Holmes Motors, Inc. v. BP Exploration & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016) (citing In re Deepwater Horizon, 785 F.3d at 1011). Our unpublished decisions addressing actions pursuant to the Settlement Agreement have expounded upon our abuse of discretion inquiry, “askfing] ‘whether the decision not reviewed by the district court actually contradicted or misapplied the Settlement Agreement, or had the clear potential to contradict or misapply the Settlement Agreement.’ ” Id. (citing series of cases). In the event that we find a contradiction or misapplication of the Settlement Agreement, we will agree that the district court abused its discretion. Id.

III.

ACR argues that the Infirmary 65 reading room constitutes a “Facility” of ACR because ACR has a contract with IHS to use the location as a “separate and distinct office space under ACR’s exclusive use and control.” BP counters that the reading room is a “Facility” of IHS, and thus that it cannot also be a “Facility” of ACR. The focus of the Settlement Agreement BEL Framework, BP explains, is upon remedying actual economic loss caused by the oil spill. Further, BP argues that the costs of maintaining the equipment and reading room space are those of IHS, not ACR. Thus, BP contends, “Infirmary 65 is an IHS ‘facility.’ ”

In reaching our decision that the district court did not abuse its discretion in denying discretionary review of the Appeal Panel decision in the instant case, we need not examine whether the CSSP was actually correct in refusing to classify Infirmary 65’s reading room as a “Facility” of ACR. Rather, we look to whether the Appeal Panel decision contradicts or misapplies the Settlement Agreement, and we find that it does not. The Appeal Panel explains in its decision that not only does ACR “not pay rent or lease expenses on the reading room,” there is also “no evidence that [ACR] pays for janitorial services, electricity, or other items” that normally accompany a lease-like relationship. The Appeal Panel further observed that the “only service provided” in the reading room “is the contracted for radiology service.” It concluded that the provision of the radiology service is not sufficient to meet the three-part definition of a “Facility.”

The Appeal Panel’s conclusion hardly contradicts or misapplies the Settlement Agreement. The Agreement’s Multi-Facility Business Framework functions as a sub-part of the larger BEL Framework, which operates to compensate for business economic losses. Furthermore, the definition of “Facility” as it is found in Policy 467 contains language with which the Appeal Panel’s decision is consistent. In particular, the “Overall Criterion” provision explains that a business must be able to identify the “expenses and revenues, if any, associated with the operations at that location” in order to establish that it “performs” or “manages” operations there. ACR argues that the “if any” language contemplates situations in which a location may constitute a “Facility” within the meaning of the Agreement notwithstanding a lack of rental and lease expenses associated with the location.

Even if we were to agree with ACR’s interpretation of the “Overall Criterion” provision and Policy 467 as a whole, the CSSP’s finding is not incongruent with the language of the Settlement Agreement and the Multi-Facility Business Framework’s function within the BEL Framework. Thus, the CSSP and the Appeal Panel did not contradict or misapply the Settlement Agreement.

IV.

In sum, because the district court’s denial of discretionary review does not result in a contradiction or misapplication of the Settlement Agreement, we hold that it is not an abuse of discretion and AFFIRM.

      . See In re Deepwater Horizon, 910 F.Supp.2d 891 (E.D. La. 2012), aff'd, 739 F.3d 790 (5th Cir. 2014) (describing the oil spill and development of the Settlement Agreement).