Yvette Katekovich v. TEAM RENT ACAR OF PITTSBURGH, INC., dba BUDGET RENT ACAR

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 00-2389
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YVETTE KATEKOVICH,
Appellant
v.
TEAM RENT A CAR OF PITTSBURGH, INC., dba BUDGET RENT A CAR;
ASHOK KHAMBHLA; MICHAEL MCDONOUGH; SANFORD MILLER
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 97-cv-00283
District Judge: The Honorable Gary L. Lancaster
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Argued: September 5, 2001
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Before: SCIRICA, ALITO, and BARRY, Circuit Judges
(Opinion Filed: April 19, 2002)
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John R. Linkosky, Esq. (Argued)
John Linkosky & Associates
715 Washington Avenue
Carnegie, PA 15106
Attorneys for Appellant
Richard J. Antonelli, Esq. (Argued)
Robert W. Cameron, Esq.
Theodore A. Schroeder, Esq.
Littler Mendelson
625 Liberty Avenue
Dominion Tower, 26th Floor
Pittsburgh, PA 15222
Attorneys for Appellees
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OPINION OF THE COURT
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BARRY, Circuit Judge
Yvette Katekovich appeals the District Court’s grant of summary judgment to
defendants on all counts of her complaint alleging violations of the Americans with
Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), Title VII, and the
Pennsylvania Human Relations Act (PHRA). The District Court had jurisdiction pursuant
to 28 U.S.C. 1331, and appellate jurisdiction is proper in this Court under 28 U.S.C.

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1291. We will affirm.
I.
Katekovich was an employee of Team Rent-a-Car of Pittsburgh, Inc. (hereinafter,
"Team"), or one of its predecessors, from 1990 until February 15, 1995. At some point in
1992, Katekovich was diagnosed with two different sleep disorders. These disorders
prevented her from getting any restful sleep at night and caused her to be unusually
sleepy during the day. Upon receiving this diagnosis, Katekovich informed her
supervisors of her condition. In 1993, Katekovich was also diagnosed as suffering from
depression. Although her supervisors denied her requests to be permitted to work from
home, they did agree that she would no longer have to drive cars, and she was also given
time off for a weekly visit to her psychiatrist.
Katekovich’s condition allegedly worsened between 1992 and 1994. On January
16, 1995, her psychiatrist recommended that she be hospitalized. She informed her
supervisors that she was going to the hospital for personal reasons, although they were
not made aware of the exact nature of her hospitalization. On January 24, 1995, she was
hospitalized in the psychiatric ward of Allegheny General Hospital. While she was
hospitalized, Katekovich spoke with one of her supervisors several times on the
telephone. Katekovich and one of her physicians informed a supervisor that she was
being hospitalized for testing related to her sleep disorders.
Katekovich was released from the hospital on February 8, 1995. On February 10,
1995, someone in the Allegheny General psychiatry department indicated on an
evaluation form that Katekovich could return to work. On February 15, 1995, Katekovich
telephoned a supervisor to inform him that she would report to work that day. The
supervisor told her that she was being terminated.
On February 2, 1997, Katekovich filed a complaint in the District Court, naming as
defendants Team and several individuals who were her supervisors. As noted earlier, the
complaint alleged that the defendants had violated the ADA, PHRA, FMLA, and Title
VII. Following discovery, the defendants filed a motion for summary judgment, and the
motion was referred to Magistrate Judge Kenneth J. Benson. On June 8, 2000, the
Magistrate Judge recommended that the motion be granted as to all defendants and all
counts. On July 13, 2000, the District Court accepted this recommendation.
On appeal, Katekovich challenges the entry of summary judgment for Team on her
ADA and PHRA claims, and the entry of summary judgment for all defendants on her
FMLA claim. Katekovich does not appeal from the grant of summary judgment to the
individual defendants on her ADA claim. She also does not challenge the Court’s
decision to grant summary judgment to all defendants on her Title VII claim.
II.
Katekovich’s appeal is unavailing. First, the District Court was correct that
Katekovich did not present sufficient evidence to support a finding that she was disabled
and that she thus failed to make out a prima facie ADA claim.
In order to prove that she had a disability, Katekovich had to demonstrate that she
had or was perceived to have a "physical or mental impairment that substantially limits
one or more of [her] major life activities . . ." 42 U.S.C. 12102(2)(A). See also Olson v.
Gen. Elec. Aerospace, 101 F.3d 947, 952 (3d Cir. 1996). The Magistrate Judge
thoroughly reviewed the evidence from Katekovich’s physicians as to her ability to
perform such "major life activities," all of which indicated that she had no such
substantial limitations. Further, Katekovich’s own testimony did not demonstrate that she
was substantially impaired. Katekovich did claim that, because of her sleep disorder, she
had difficulty in staying awake during the day. By itself, however, this cannot be
considered a major life activity. Rather, the difficulty or inability to stay awake during
the day can only amount to a disability if it causes an impairment of some other life
activity, and she testified that she can perform her normal duties. Because there was
insufficient evidence that would demonstrate that Katekovich was substantially limited in
any way, much less in any major life activity, her difficulty in staying awake cannot be a
disability.
It, therefore, is of little moment whether or not defendants knew (or should have
known) of Katekovich’s depression and sleep disorder. It also is of little moment, if they
did know, whether her conditions could, should, or would have been reasonably

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accommodated. Because the Magistrate Judge and the District Court correctly held that
Katekovich had not presented sufficient evidence to prove that she was disabled, the grant
of summary judgment to Team on the ADA claim will be affirmed. Because this finding
is dispositive of the ADA claim, we need not consider the alternative grounds on which
the Magistrate Judge relied, i.e. that Katekovich did not show that she was a "qualified"
individual or that her termination was "because of" her alleged disability. Further,
because the PHRA is concededly coextensive with the ADA, the grant of summary
judgment on that claim will also be affirmed.
Second, Katekovich argues that the defendants violated the Family and Medical
Leave Act when they terminated her. In brief, the FMLA provides that employees of
certain employers must be given up to twelve weeks of unpaid leave per year because of a
serious medical condition rendering an employee unable to work. An employer may not
terminate an employee because he or she has taken the leave permitted by the statute. If
the employee is not able to return to work after twelve weeks, however, the employer
may terminate the employee. Further, if an employer terminates an employee during the
twelve weeks but the employee would not have been able to return to work at the end of
the twelve weeks in any event, the employer has not violated the FMLA. See Cehrs v.
Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784-85 (6th Cir. 1998)
(finding no cause of action where the employee "was clearly unable to return to work
within the period provided by the FMLA"). Katekovich was terminated approximately
three weeks after the beginning of her hospitalization. Defendants contend that she could
not have returned to work within the twelve-week FMLA leave period.
Katekovich’s success on her FMLA depends, in the first instance, on the validity
of regulations, promulgated by the Department of Labor (DOL), placing the burden on an
employer to designate an employee’s leave as FMLA-qualifying or not, and to notify the
employee as to that designation. 29 C.F.R. 825.208(a) ("[i]n all circumstances, it is the
employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to
give notice of the designation to the employee as provided in this section"); 29 C.F.R.
825.700(a) ("If an employee takes paid or unpaid leave and the employer does not
designate the leave as FMLA leave, the leave taken does not count against an employee’s
FMLA entitlement."). It is undisputed that Team never informed Katekovich that her
leave was being designated as FMLA leave. If this regulation is valid, then, the twelve
weeks never started to run and it is irrelevant whether Katekovich could have returned to
work within twelve weeks of the beginning of her hospitalization.
The United States Supreme Court has recently decided the precise issue before us,
and we are bound by that decision. Ragsdale v. Wolverine World Wide, Inc., U.S. ,
122 S. Ct. 1155 (2002). The Court held that 825.700(a) was beyond the DOL’s
authority and contrary to the FMLA and, thus, that Tracy Ragsdale was not entitled to an
additional twelve weeks’ leave, even though her employer had not specifically notified
her whether the thirty weeks she had taken were FMLA-qualifying. Id. at 1159. Ragsdale
could not be more clear, and we, therefore, conclude that Katekovich was not entitled to
more leave than she received. We also conclude that the Magistrate Judge correctly
determined that Katekovich did not present sufficient evidence to support a finding that
she could have returned to work within twelve weeks. Accordingly, the grant of
summary judgment on the FMLA claim will also be affirmed.
III.
The July 13, 2000 order of the District Court will be affirmed.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge

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