Yvette M. Tillman Henley v. BRANDYWINE HOSPITAL, LLC; LISA MACMULLEN, Individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-1829
_______________________
YVETTE M. TILLMAN HENLEY,
Appellant
v.
BRANDYWINE HOSPITAL, LLC; LISA MACMULLEN, Individually
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-18-cv-04520
Chief District Judge: The Honorable Juan R. Sanchez
__________________________
Submitted Under Third Circuit L.A.R. 34.1 (a)
June 16, 2022
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
(Filed: July 6, 2022)
__________________________
OPINION*
__________________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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SMITH, Circuit Judge.
Yvette M. Tillman Henley, an African-American, filed this civil action against
both her employer, Brandywine Hospital, and her supervisor, Lisa MacMullen. She
alleged, inter alia, that Brandywine Hospital and MacMullen subjected her to a racially
hostile environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 1981, and the Pennsylvania Human Relations Act (PHRA), and that they interfered
with her rights under the Family and Medical Leave Act (FMLA). The District Court
denied Brandywine Hospital’s initial motion to dismiss the hostile environment and
FMLA claims. After discovery closed, Brandywine Hospital successfully moved for
summary judgment.1 This timely appeal followed.2 We will affirm the judgment of the
District Court.
Henley began her employment as an emergency room registrar in 2011, working
the 3:00 to 11:30 PM shift. Because of diabetes mellitus and hypokalemia she required
bathroom breaks to check her blood pressure and sugar as needed. Some co-workers and
managers complained about these breaks. In turn, Henley complained to her immediate
supervisor, Christal Nowlin, an African-American woman, about comments some co-
1 The District Court granted summary judgment on the basis that Brandywine Hospital,
which became the owner and operator of the facility on October 1, 2017, had “no
successor liability” for Henley’s claims. A2. In the alternative, the District Court
addressed the merits of Henley’s claims. We address the merits because it is not clear to
us, given the nature of this acquisition and the lack of information about the transfer in
the record, whether successor liability should attach. See Rego v. ARC Water Treatment
Co. of Pa., 181 F.3d 396, 401–02 (3d Cir. 1999).
2 The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
final order jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant
of summary judgment. E.E.O.C. v. GEO Grp., Inc., 616 F.3d 265, 270 (3d Cir. 2010).

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workers were making about her frequent bathroom breaks. On at least one occasion, “HR
intervention” was deemed necessary. A433. According to Henley, co-workers
complained that she spoke too much with Nowlin. And Henley asserted that two of her
co-workers disparaged African-American patients and often asked her to handle those
patients rather than do so themselves. One of these co-workers made an inappropriate
racially-charged remark about sex and Henley’s husband. Nowlin overheard that remark,
immediately called that co-worker into her office, and admonished the co-worker that the
remark was unacceptable. The co-worker apologized to Henley.
The District Court granted Brandywine Hospital’s motion for summary judgment.
The Court determined that “Henley’s hostile work environment claims fail because there
is insufficient evidence to find any discrimination that she faced was severe or
pervasive.” A13. We agree. Henley objected to her work environment, but her written
statements referenced inter-personal conflicts and were devoid of any reference to
racially objectionable conduct. The evidence that related to race revealed sporadic
complaints that we conclude were neither severe nor pervasive enough to alter the terms
and conditions of her employment. See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d
Cir. 2017). Accordingly, we conclude that the District Court did not err by granting
summary judgment to Brandywine Hospital on Henley’s racially hostile environment
claims.3
3 It follows from this conclusion that the District Court did not err in deciding that
Henley’s claim under the PHRA, 43 Pa. Stat. § 955(e), against MacMullen for aiding and
abetting the racially hostile environment also failed. See Dici v. Pennsylvania, 91 F.3d
542, 553 (3d Cir. 1996).

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Henley also challenges the District Court’s grant of summary judgment in favor of
Brandywine Hospital on her FMLA claim. The District Court concluded that she was
unable to “establish prejudice because there [was] no evidence that the actions of
Brandywine Hospital, Goble, [the human resources director,] MacMullen or anyone else
‘rendered [her] unable to exercise [her FMLA rights] in a meaningful way.’” A18
(citation omitted).
On appeal, Henley seeks to salvage her FMLA claim by asserting in a single page
of argument—and citing only the District Court’s earlier denial of Brandywine Hospital’s
12(b)(6) motion—that she established an FMLA interference claim based on actions
taken by co-workers and supervisors discouraging her use of FMLA intermittent time.
See Fraternal Order of Police v. City of Camden, 842 F.3d 231, 245 (3d Cir. 2016)
(acknowledging FMLA claim based on discouraging an employee from exercising his
FMLA rights (citing 29 C.F.R. § 825.220(b))). This mere, “passing reference” to an
FMLA claim, however, constitutes the abandonment of it. See Laborers’ Int’l Union v.
Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (internal citation omitted).
Even if it was not abandoned, we note that Henley fails to recognize that this
appeal concerns the District Court’s adjudication of a summary judgment motion which
required her to adduce proof of every element of her claim. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89
(2002), the Supreme Court instructed that an employee who asserts an FMLA
interference claim under 29 U.S.C. § 2617 is not entitled to any “relief unless the
employee has been prejudiced by the violation.” Here, Henley has failed to adduce

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evidence of lost compensation or benefits, or any actual monetary losses. Nor has she
established a basis for equitable relief such as reinstatement, promotion, or backpay. See
29 U.S.C. § 2617(a)(1)(B). And she has failed to provide authority that would entitle her
to relief on any other basis. See Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996,
1008 (6th Cir. 2005) (holding, after citing cases from five of its sister courts of appeals,
that “damages for emotional distress are not allowed under the FMLA”). Accordingly, in
the absence of evidence that Henley sustained any compensable damages, we conclude
that the District Court did not err in granting summary judgment on her FMLA claim.
We will affirm the judgment of the District Court.

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