Conoshenti v. Pub Ser Elec & Gas

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

4-13-2004

Conoshenti v. Pub Ser Elec & Gas

Precedential or Non-Precedential: Precedential

Docket No. 03-2257

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PRECEDENTIAL Attorneys for Appellant

IN THE UNITED STATES COURT Patrick Westerkamp (Argued)

OF APPEALS Public Service Electric &

FOR THE THIRD CIRCUIT Gas Company

80 Park Plaza – T5E

Newark, NJ 07101-0570

NO. 03-2257 Attorney for Appellee

RICHARD CONOSHENTI

Appellant OPINION OF THE COURT

v.

PUBLIC SERVICE ELECTRIC

& GAS COMPANY STAPLETON, Circuit Judge:

Appellant Richard Conoshenti alleges

that his employment with Public Service

On Appeal From the United States

Electric and Gas Company (“PSE&G”)

District Court

was terminated in violation of the Family

For the District of New Jersey

and Medical Leave Act of 1993, 29 U.S.C.

(D.C. Civil Action No. 01-cv-04611)

§ 2601 et seq., (“FMLA”), New Jersey

District Judge: Hon. Joseph A.

public policy under Pierce v. Ortho

Greenaway, Jr.

Pharmaceutical Corp., 84 N.J. 58, 72, 417

A.2d 505, 512 (N.J. 1980), and the New

Jersey Law Against Discrimination, N.J.

Argued January 26, 2004

Stat. Ann. § 10:5-1 et seq., (“NJLAD”).

The District Court granted summary

BEFORE: NYGAARD, FUENTES

judgment in favor of PSE&G on all of

and STAPLETON, Circuit Judges

Conoshenti’s claims. We will reverse the

District Court’s judgment with respect to

(Opinion Filed: April 13, 2004)

Conoshenti’s FMLA claim and remand for

further proceedings. We will affirm,

however, the District Court’s judgment

with respect to Conoshenti’s Pierce and

NJLAD claims.

Gerald J. Resnick (Argued)

Andrea Rachiele I. Facts and Procedural History

Deutsch & Resnick

Richard Conoshenti was employed as a

One University Plaza - Suite 305

First Grade Mechanic with PSE&G since

Hackensack, NJ 07601

1972. In April and May 1999, PSE&G entered into the LCA, to December 3,

accused him of keeping inaccurate time 1999, Conoshenti performed each of his

records and leaving his shift early to take obligations and was n ot warned,

a shower. Conoshenti denied keeping reprimanded, or fired for any improper

inaccurate records, claiming that he was conduct. On December 4, 1999, however,

merely engaged in the accepted practice of wh ile outside the scope of his

correcting times that were inappropriately employment, Conoshenti was struck by an

recorded. As for leaving his shift early, automobile and sustained a serious injury

Conoshenti claimed that he had been that required hospitalization. Shortly

working with chemicals that irritated his thereafter, on December 6, 1999,

skin, and that a shower was necessary. Conoshenti informed his boss at PSE&G

Nevertheless, on May 21, 1999, PSE&G of his accident and the seriousness of his

made a decision to discharge him for these injuries. He also informed his boss that his

violations of company policy. physician had indicated that he would need

to be out of work for at least two weeks in

Upon the advice of Conoshenti’s union,

order to recover. 2 PSE&G did not notify

and because he was willing to accept

Conoshenti at that time, or at any time

blame to keep his job,1 he agreed to enter

thereafter, of his rights under the FMLA.3

into a Last Chance Agreement (“LCA”).

Under the LCA, PSE&G agreed that

C ono shen ti wo uld be reinsta ted, 2

Additionally, the record indicates that

conditioned upon his satisfactory on December 8, 1999, PSE&G received a

performance of each of the obligations note from Conoshenti’s physician, Dr.

outlined in a letter dated August 10, 1999. Edward A. Somma, dated December 6th,

These obligations included: taking and indicating that Conoshenti would require

passing a physical examination, reporting fourteen days of bedrest and medication

to work every day and on time, and that he could return to work on

m a i n t a in i n g sa tis fa cto ry w o r k December 20, 1999. App. at 233a-34a.

performance, and maintaining a clean

3

safety record. Conoshenti understood that During proceedings in the District

if he were to violate any of these Court, PSE&G had claimed that it

requirements, such violation would informed Conoshenti of his rights under

automatically constitute just cause for his the FMLA by letter dated December 15,

immediate discharge. 1999. Conoshenti claimed never to have

received that letter. At oral argument on

From August 10, 1999, the date he

the parties’ cross-motions for summary

judgment, however, PSE&G accepted, for

purposes of summary judgment, that no

1

Conoshenti continues to dispute, notice had been sent to Conoshenti on

however, the truth of the PSE&G’s December 15, 1999 or at any other time.

charges. PSE&G also stipulated for purposes of this

2

In particular, Conoshenti was not told that December 20th, that cited Conoshenti’s

he was entitled, under the FMLA, to absence on December 6th and the

twelve weeks of protected leave. He was subsequent ten days as the reason for his

also not told that the leave he was using discharge. App. at 237a. This letter,

would be considered FMLA leave. however, was not signed and was never

sent.

On December 16, 1999, Conoshenti met

with an orthopedic surgeon, Dr. Alexander Meanwhile, Conoshenti had become

P. Russoniello, who diagnosed him with concerned about his job security and

torn rotator cuffs and recommended therefore contacted his union to determine

immediate surgery. The surgery was what he needed to do to protect himself.

scheduled for early January 2000. The union advised him to notify PSE&G

Conoshenti notified PSE&G of his plan to that he desired to have his leave counted as

undergo the surgery and was told to take FMLA leave. Following this advice,

time to recuperate. On December 17th, he Conoshenti, on December 27, 1999, sent a

sent PSE&G a form completed by Dr. letter to his direct supervisor at PSE&G,

Russoniello that indicated his diagnosis Bob Wasser, stating:

and that he would be unable to work until

I would like to request an immediate

approximately April 2000.

leave under the Family and Medical

Thereafter, on or about December 20, Leave Act. I am requesting this

1999, PSE&G began administrative steps leave due to the fact that I was in an

to end Conoshenti’s employment for accident on December 4, 1999. If I

violating the LCA. These steps included can provide any other information or

the preparation of a Recommendation for doc tor notif ic a tion I wou ld

Disciplinary Action, which recommended appreciate c ontact fro m th e

that Conoshenti be discharged because he company.

“was unavailable for work on 12/6/99 and

App. at 73a. That same day, Wasser made

the following 9 work days, a violation of

the following handwritten notation:

his ‘Last Chance Agreement.’” App. at

236a. The recommendation was approved Conoshenti called and stated that he

by several PSE&G officers on December wanted a “family medical leave.” I

20th, but no action was taken. PSE&G responded by saying that I would

also drafted a termination letter, dated research it for him and call him back.

[I] called J. Tiberi 4 and discussed.

Initially the discharge was to be

appeal that “a letter dated December 15, executed through the mail, effective

1999 (238a - 240a) was neither sent by

PSE&G, nor received by Mr. Conoshenti.

4

(358a - 359a).” Appellee’s Br. at 6 n.4. J. Tiberi was the signatory for PSE&G

on the LCA.

3

1-01-00[.] [W]hen I mentioned required by PSE&G. It was Conoshenti’s

“family leave” Tiberi said he would understanding that passing the physical

call [redacted]. Tiberi paged me ½ examination was the only condition placed

hour later. I called and was informed on his returning to work. Also on April

by Tiberi that we must hold off on 12, 199 9, PS E& G re initiated

the discharge, because: He is entitled administrative steps to end Conoshenti’s

to benefits while he is on disability. employment for violation of the LCA. On

It is against the law to discharge April 17, 1999, Conoshenti reported for

under these conditions. Tiberi said work. After one hour on the job, however,

that he will be discharged upon his he was called into his supervisor’s office

return to work 1st day back. and told he was being terminated for

violation of the LCA. The termination

App. at 246a. Conoshenti then underwent

letter stated, in part:

surgery for his torn rotator cuff in early

January 2000. Thereafter, Conoshenti’s On December 6, 1999, you were

doctors periodically updated PSE&G on unable to report to work as a result

his condition. Conoshenti claimed that of being involved in a motor vehicle

throughout his recovery, he was told by accident. Subsequently, you were

several different people at PSE&G, out of work for 92 days, a violation

including Wasser, to take his time of the terms and conditions of your

recovering and to not hurry back until he “Last Chance Agreement.” As a

was “100%.” App. at 294a, 295a. result of your failure to comply with

Conoshenti also claimed that he was the terms and conditions of this

assured that “light duty” would be agreement, your employment with

available to him when he was able to Public Service Electric and Gas

return to work. App. at 295a. Company is being terminated April

17, 2000.

On March 28, 2000, Dr. Russoniello

authorized Conoshenti to return to work App. at 269a.

for “desk duty” as of April 3, 2000, and

It is undisputed that Conoshenti’s

Conoshenti, in turn, notified PSE&G of his

absence from work exceeded the twelve

ability to return to work. PSE&G

weeks of leave that are protected by the

informed him, however, that the facility

FMLA. If Conoshenti’s protected leave

where he worked could not accommodate

were considered to have begun on

desk duty and that his return to work

December 6, 1999, the twelve week period

would have to be delayed until his doctor

would have expired on March 1, 2000.

cleared him for full active manual labor.

Even if the twelve week period were

In April 2000, Conoshenti’s doctor

considered to have begun on December 27,

authorized his return to unrestricted work

1999, the protected period would have

duty. On April 12, 2000, Conoshenti took

expired on M arch 19, 2000.

and passed a physical examination

4

After his discharge, Conoshenti and his II. Discussion

union filed a grievance and the case was

Conoshenti argues that the District

arbitrated pursuant to the LCA. Although

Court erred in granting PSE&G’s motion

the arbitrator noted that the LCA was very

for summary judgment and denying his

stringent and possibly even “draconian,”

own motion for summary judgment. We

he nevertheless found that Conoshenti had

review the District Court’s grant of

violated its terms and therefore denied the

summary judgment de novo. American

grievance.

Medical Imaging Corp. v. St. Paul Fire &

Conoshenti then filed a complaint Marine Ins. Co., 949 F.2d 690, 692 (3d

against PSE&G in the Superior Court of Cir.1991). Summary judgment is

New Jersey, Union County. Counts One appropriate if there are no genuine issues

and Two of the complaint alleged of material fact presented and the moving

violations of NJLAD. Count Three party is entitled to judgment as a matter of

alleged that Conoshenti had been law. Fed. R. Civ. P. 56(c); Celotex Corp.

wrongfully discharged in violation of v. Catrett, 477 U.S. 317, 322-23 (1986);

public policy under Pierce v. Ortho Wisniewski v. Johns-Manville Corp., 812

Pharmaceutical Corp., 84 N.J. 58, 72, 417 F.2d 81, 83 (3d Cir. 1987). In determining

A.2d 505, 512 (N.J. 1980). Count Four whether a genuine issue of fact exists, we

alleged violations of the FMLA. PSE&G resolve all factual doubts and draw all

removed the case to the United States reasonable inferences in favor of the

District Court for the District of New nonmoving party. Suders v. Easton, 325

Jersey. F.3d 432, 435 n.2 (3d Cir. 2003).

“Although the initial burden is on the

Conoshenti and PSE&G filed cross-

summary judgment movant to show the

motions for summary judgment. The

absence of a genuine issue of material fact,

District Court granted summary judgment

‘the burden on the moving party may be

in favor of PSE&G on all of Conoshenti’s

discharged by ‘‘showing’’ – that is,

claims. This timely notice of appeal

pointing out to the district court – that

followed.5

there is an absence of evidence to support

the nonmoving party’s case’ when the

nonmoving party bears the ultimate burden

5

The District Court had jurisdiction of proof.” Singletary v. Pennsylvania

under 28 U.S.C. § 1331 (2001) because the Dept. of Corrections, 266 F.3d 186, 192

case involved a federal question, and n.2 (3d Cir. 2001) (quoting Celotex, 477

removal was proper under 28 U.S.C. §

1441(b) (2001). The District Court had

supplemental jurisdiction over the New (2001) because the District Court’s order

Jersey state law claims under 28 U.S.C. § granting summary judgment to PSE&G on

1367 (2001). We have jurisdiction over all claims was a final decision.

this appeal pursuant to 28 U.S.C. § 1291

5

U.S. at 325). employee returns from an FMLA leave,

the employee is entitled to be reinstated to

A. Family and Medical Leave Act Claims

his or her former position, or an equivalent

The stated purposes of the FM LA are to one. 29 U.S.C. § 2614(a)(1). This right to

“balance the demands of the workplace reinstatement is qualified by a statutory

with the needs of families” and “to entitle directive that it does not entitle a restored

employees to take reasonable leave for employee to a right, benefit or position to

medical reasons.” 29 U.S.C. § 2601(b)(1) which the employee would not “have been

and (2). The FMLA seeks to accomplish entitled had the employee not taken the

these purposes “in a manner that leave.” 29 U.S.C. § 2614(a)(3)(B). Thus,

accommodates the legitimate interests of for example, if an employee is discharged

employers.” 29 U.S.C. § 2601(b)(3). In during or at the end of a protected leave

furtherance of these objectives, the FMLA for a reason unrelated to the leave, there is

requires that “an eligible employee shall be no right to reinstatement. 29 C.F.R. §

entitled to a total of twelve workweeks of 825.216(a)(1).

leave during any twelve month period” if

In order to protect these substantive

the employee has a “serious health

rights, the FMLA proscribes an employer

condition that makes the employee unable

from engaging in certain acts. See 29

to perform the functions of the position of

U.S.C. § 2615. Section 2615(a)(1) makes

such emp loyee.” 29 U.S .C. §

it “unlawful for any employer to interfere

2612(a)(1)(D). 6 After an eligible

with, restrain, or deny the exercise of or

the attempt to exercise, any right provided

under this subchapter.” Section 2615(a)(2)

6

“The term ‘eligible employee’ means makes it “unlawful for any employer to

an employee who has been employed – (i)

for at least 12 months by the employer

with respect to whom leave is requested employee need not expressly assert rights

under section 2612 of this title; and (ii) for under the FMLA or even mention the

at least 1,250 hours of service with such FMLA”; rather the employee need only

employer during the previous 12-month notify the employer that leave is needed.

period.” 29 U.S.C. § 2611(2)(A). “The 29 C.F.R. § 825.303(b).

term ‘serious health condition’ means an In this case, there is no dispute that

illness, injury, impairment, or physical or Conoshenti was an eligible employee or

mental condition that involves – (A) that his injury qualified as a serious health

inpatient care in a hospital, hospice, or condition. Moreover, as the District Court

residential medical care facility; or (B) noted, it is undisputed that Conoshenti

continuing treatment by a health care fulfilled his duty to notify under the

provider.” 29 U.S.C. § 2611(11). When FMLA by informing PSE&G of his injury

an eligible employee needs to take FMLA and need for time off within two days of

leave that was not foreseeable, “[t]he his accident.

6

discharge or in any other manner hiring, promotions or disciplinary

discriminate against any individual for actions; nor can FMLA leave be

opposing any practice made unlawful by counted under “no fault” attendance

this subchapter.” Finally, § 2615(b) policies.

provides that “[i]t shall be unlawful for

29 C.F.R. § 825.220(c). The DOL’s

any person to discharge or in any other

regulations also provide that “[a]ny

manner discriminate against any individual

violations of the [FMLA] or of these

because such individual – (1) has filed any

regulations constitute interfering with,

charge, or has instituted or caused to be

restraining, or denying the exercise of

instituted any proceeding, under or related

rights provided by the Act.” 29 C.F.R. §

to this subchapter; (2) has given, or is

825.220(b). “‘Interfering with’ the

about to give, any information in

exercise of an employee’s rights would

connection with any inquiry or proceeding

include, for example, not only refusing to

relating to any right provided under this

authorize FMLA leave, but discouraging

subchapter; or (3) has testified, or is about

an employee from using such leave. It

to testify, in any inquiry or proceeding

would also include manipulation by a

relating to any right provided under this

covered employer to avoid responsibilities

subchapter.” The FMLA grants employees

under FMLA.” 29 C.F.R. § 825.220(b).

a cause of action against employers who

Moreover, “[e]mployees cannot waive, nor

violate § 2615. See 29 U.S.C. § 2617.

may employers induce employees to

In addition, the United States waive, their rights under FMLA.” 29

Department of Labor (“DOL”) has C.F.R. § 825.220(d).

promulgated regulations implementing the

Finally, the DOL’s regulations impose

FMLA, as authorized by 29 U.S.C. § 2654.

upon the employer obligations to

Of particular significance here, §

communicate with employees regarding

825.220(c) of those regulations provides:

their rights under the FMLA. In particular,

An employer is prohibited from the regulations require employers to

discriminating against employees or provide employees with individualized

prospective employees who have notice of their FMLA rights and

used FMLA leave. For example, if obligations. Pursuant to 29 C.F.R. §

an employee on leave without pay 825.208(a), “[i]n all circumstances, it is

would otherwise be entitled to full the employer’s responsibility to designate

benefits (other than health benefits), leave, paid or unpaid, as FMLA-

the same benefits would be required qualifying, and to give notice of the

to be provided to an employee on designation to the employee . . . .” If an

unpaid FMLA leave. By the same employer provides employees with a

token, employers cannot use the handbook concerning employee benefits,

taking of FMLA leave as a negative “ the ha ndboo k m ust inc or po r a te

factor in employment actions, such as information on FMLA rights and

7

responsibilities and the employer’s policies 1. The Failure to Advise Claim

regarding the FMLA.” 29 C.F.R. §

Conoshenti argues that PSE&G’s

825.301(a)(1). If the employer does not

failure to advise him of his right to twelve

provide such a handbook, such

weeks of FMLA leave, after he properly

information must be provided when an

gave notice of his serious health condition,

employee requests leave. 29 C.F.R. §

constituted an interference with his FMLA

825.301(a)(2). Moreover, each time the

right to that protected leave. Had he

employee requests leave, the employer

received the advice PSE&G was obliged to

must, within a reasonable time thereafter –

provide, Conoshenti insists, he would have

“one or two business days if feasible,”

been able to make an informed decision

“provide the employee with written notice

about structuring his leave and would have

detailing the specific expectations and

structured it, and his plan of recovery, in

obligations of the employee and explaining

such a way as to preserve the job

any consequences of a failure to meet

protection afforded by the Act. We

these obligations.” 29 C.F.R. §

conclude that this is a viable theory of

825.301(b)(1), (c). This specific notice

recovery and that the District Court

must include, among other things, whether

accordingly erred in granting summary

“the leave will be counted against the

judgment on it against Conoshenti.

employee’s a n n ua l F M L A l e ave

entitlement,” 29 C.F.R. § 825.301(b)(1)(i), As we have noted, the parties stipulated

and “the employee’s right to restoration to in the District Court that, for purposes of

the same or equivalent job upon return summary judgment, PSE&G did not advise

from leave,” 29 C .F.R . § Conoshenti of his rights under the FMLA.

825.301(b)(1)(vii). Neither party in this As we have also noted, the regulation

case has challenged the validity of these under the FMLA imposed a duty on

regulations. PSE&G to do so. It follows, we believe,

that Conoshenti will show an interference

There are two arrows to Conoshenti’s

with his right to leave under the FMLA,

FMLA bow. He insists that the District

within the meaning of 29 U.S.C. §

Court erred in granting summary judgment

2615(a)(1), if he is able to establish that

against him because (1) PSE&G failed to

this failure to advise rendered him unable

advise him of his FMLA rights and

to exercise that right in a meaningful way,

thereby interfered with his ability to

thereby causing injury. Neither PSE&G in

meaningfully exercise his right to an

its brief nor the District Court in its

FMLA leave; and (2) PSE&G “use[d] the

opinion contest the theoretical basis for

taking of FMLA leave as a negative factor

this claim, and we believe that basis is

in” its decision to discharge him on April

supported by the relatively sparse authority

17, 2000. 29 C.F.R. § 825.220(c). We

relevant to the issue.

will address each of these independent

theories of liability in turn. In Ragsdale v. Wolverine World Wide,

8

Inc., 535 U.S. 81 (2002), the Supreme dispositive of anything before us. It is

Court had before it the FMLA regulations helpful, however, because the Court found

requiring an employer to advise employees “reasonable” Ragsdale’s suggestion that a

of FMLA rights. It was called upon to failure to advise of FMLA rights could

determine the validity of a regulation, 29 constitute an interference with “an

C.F.R. § 825.770(a),7 which imposed a employee’s exercise of basic FMLA rights

penalty on an employer who failed to in violation of § 2615”:

advise that a leave taken by an employee

Section 825 .700(a), Ragsdale

w ould cou nt a ga in st h er F M LA

contends, reflects the Secretary’s

entitlement. Under this regulation, the

understanding that an employer’s

twelve week FMLA leave did not

failure to com ply with the

commence until this advice was given. In

designation requireme nt might

Ms. Ragsdale’s case, this would have

sometimes burden an employee’s

entitled her to 30 weeks of leave, even

exercise of basic FMLA rights in

though she could not show that she was in

violation of § 2615. Consider, for

any way prejudiced by the employer’s

instance, the right under § 2612(b)(1)

breach of duty. The Court struck down

to take intermittent leave when

this penalty provision, noting that it was

medically necessary. An employee

“unconnected to any prejudice the

who undergoes cancer treatments

employee might have suffered from the

every other week over the course of

employer’s lapse” and, accordingly,

12 weeks might want to work during

“ i n c o m p a tible wit h th e F M L A ’s

the off weeks, earning a paycheck

comprehensive remedial mechanism”

and saving six weeks for later. If she

which affords no relief absent prejudice

is not informed that her absence

from a statutory violation. Ragsdale, 535

qualifies as FMLA leave – and if she

U.S. at 88-89.

does not know of her right under the

The Ragsdale Court expressly noted statute to take intermittent leave –

that the validity of notice requirements of she might take all 12 of her FMLA-

the regulations themselves was not before guaranteed weeks consecutively and

it. Accordingly, Ragsdale is not have no leave remaining for some

future emergency. In circumstances

like these, Ragsdale argues, the

7

Section 825.770(a) provided, in part: employer’s failure to give the notice

If an employee takes paid or required by the regulation could be

unp aid leave and the said to “deny,” “restrain,” or

employer does not designate “interfere with” the employee’s

the leave as FMLA leave, exercise of her right to take

the leave taken does not intermittent leave.

count against an employee’s

This position may be reasonable, but

FMLA entitlement.

9

the more extreme one embodied in § outlining the F M L A ’s im portant

825.700(a) is not. . . . [It] establishes provisions and the employees’ FMLA

an irrebuttable presumption that the rights. Her employer also failed to

employee’s exercise of FMLA rights prospectively designate her leave as

was impaired – and that the FMLA leave in violation of 29 C.F.R. §§

employee deserves 12 more weeks. 825.208 and .700. Nusbaum took the

There is no empirical or logical basis leave required for her surgery, and was

for this presumption, as the facts of discharged during her absence. Nusbaum

this case well demonstrate. Ragsdale then brought suit, alleging that her

has not shown that she would have employer’s failure to notify her of her right

taken less leave or intermittent leave to twelve weeks of FMLA-protected leave,

if she had received the required and her subsequent termination, interfered

notice. with her FMLA rights in violation of 26

U.S.C. § 2615(a)(1). The District Court

Ragsdale, 535 U.S. at 89-90. This portion

denied the employer’s motion to dismiss,

of the Ragsdale opinion, together with our

holding as follows:

own assessment of the reasonableness of

the notice regulations, persuades us that [T]he purpose of the regulations

the Supreme Court would find an enacted by the DOL . . . is to ensure

actionable “interference” in violation of § that employers allow their employees

2615(a) here in the event Conoshenti is to make informed decisions about

able to show prejudice as a result of that leave. . . . The overall intent of the

violation. FMLA is lost when an employer fails

to provide an employee with the

The District Court from which this

opportunity to make informed

appeal comes to us has previously

decisions about her leave options and

endorsed the theory of recovery

limitations. Without such an

Conoshenti advances here. In Nusbaum v.

opportunity, the employee has not

CB Richard Ellis, Inc., 171 F. Supp. 2d

received the statutory benefit of

377, 379-80 (D.N.J. 2001), after plaintiff

taking necessary leave with the

Margot Nusbaum learned that she required

reassurance that her employment,

back surgery, she requested that her

under proscribed conditions, will be

employer allow her to take medical leave

waiting for her when she is able to

and also requested information regarding

return to work.

the employer’s medical leave policy. The

employer refused to provide this Id. at 385-86. The court concluded that

information. Moreover, Nusbaum never Nusbaum “was, therefore, not given the

received any ma terials prov iding proper information that would have

information on FMLA leave and the allowed her to structure her leave in a way

employer had not complied with 29 U.S.C. that would have left her protected by the

§ 2619’s requirement that it post a notice FMLA.” Id. at 386. We find this

10

reasoning of the Nusbaum Court Conoshenti then sent a letter to PSE&G on

persuasive. December 27, 1999 stating that he “would

like to request an immediate leave under

The District Court in Conoshenti’s case

the Family and Medical Leave Act.” App.

accepted his claim that the regulations

at 73a. Nothing in the record, however,

imposed a duty on PSE&G to advise him

indicates that Conoshenti knew that he was

of his FMLA rights and that a failure to do

entitled to only twelve weeks of protected

so could result in an “interference” under

leave. Rather, the record simply reflects

§ 2615(a)(1). It distinguished Nusbaum,

what Conoshenti was told to say and what

however, on the ground that Conoshenti

he did say. The summary judgment record

had proven no prejudice as required by

thus does not speak to Conoshenti’s

Ragsdale. In support of this conclusion,

knowledge of his relevant FMLA rights on

the Court first noted that “his ignorance of

December 27th or thereafter during his

the nature of his leave ended on December

leave.

27.” A ccordingly, it held that

Conoshenti’s reliance on Nusbaum could Similarly, the summary judgment

only be used to delay the commencement record, as the District Court correctly

of his twelve weeks of FMLA-protected noted, contains no competent evidence

leave from December 6th to December regarding the alternatives that would have

27th; this would, in any event, have left been available to Conoshenti had PSE&G

him unprotected by the FMLA before he advised him of his rights when he

returned to work. The Court then requested leave on December 6th. Only

observed that Conoshenti had “presented Conoshenti’s brief contains a statement of

no evidence that he could have made a what he would have done had he been

different choice had PSE&G informed him advised of his rights.8

that his FMLA leave began on December

6,” and made “only the bare assertion that

8

he could have made different decisions.” Conoshenti insists that his recovery

App. at 16a. We hold that the District consisted of two phases: the initial

Court’s analysis is at odds with well- recovery from the accident, and the

established principles governing the subsequent recovery from the shoulder

propriety of summary judgments. surgery. If he had known that he could not

exceed twelve weeks of leave, he claims,

The record indicates that in December

he could have explored the feasibility of

1999, Conoshenti contacted his union in

postponing the surgery to a subsequent

order to learn what he needed to do to

FMLA period. The record does contain

protect his job during his recovery. In

some support for Conoshenti’s assertion

response to this inquiry, the union advised

that he could have returned to work within

Conoshenti to inform PSE&G that he

twelve weeks without the shoulder

wanted his leave to be considered FMLA

surgery. Prior to Conoshenti’s visit with

leave. The record further indicates that

the orthopedic surgeon who recommended

11

While we agree with the District Court that such a showing was material in any

that these gaps in the record required it to way. Accordingly, we conclude that

deny Conoshenti’s motion for summary PSE&G, as the moving party, did not

judgment, they clearly did not warrant the satisfy its initial burden of pointing to an

grant of PSE&G’s motion. It is well absence of evidence as to whether

established that “a party seeking summary Con oshe nti had been prejudiced.

judgment always bears the initial Conoshenti was therefore not required,

responsibility of informing the district pursuant to Fed. R. Civ. P. 56(e), to

court of the basis for its motion, and respond with specific facts establishing a

identifying those portions of ‘the genuine issue with respect to the prejudice

pleadings, depositions, answers to requirement. See Celotex Corp. v. Catrett,

interrogatories, and admissions on file, 477 U.S. at 322.

together with the affidavits, if any,’ which

2. The Discharge Claim

it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Subsection 825.220(c) of the FMLA

Corp. v. Catrett, 477 U.S. 317, 323 (1986) regulations provides:

(quoting Fed. R. Civ. P. 56(c)). “With

An employer is prohibited from

respect to an issue on which the

discriminating against employees or

nonmoving party bears the burden of

prospective employees who have

proof,” “the burden on the moving party

used FMLA leave. For example, if

may be discharged by ‘showing’ – that is,

an employee on leave without pay

pointing out to the district court – that

would otherwise be entitled to full

there is an absence of evidence to support

benefits (other than health benefits),

the nonmoving party’s case.” Id. at 325.

the same benefits would be required

Here, PSE&G never asserted that

to be provided to an employee on

Conoshenti could not meet his burden of

unpaid FMLA leave. By the same

proving that he could have structured his

token, employers cannot use the

leave differently. Nor did PSE&G argue

taking of FMLA leave as a negative

that a showing of prejudice was an

factor in employment actions, such

essential element of Conoshenti’s claim or

as hiring, promotions or disciplinary

actions; nor can FMLA leave be

counted under “no fault” attendance

immediate surgery, the record indicates policies.

that Conoshenti met with Dr. Edward A.

It is apparent from the face of §

Somma. Dr. Somma completed a doctor’s

825.220(c) that to be successful on this

note stating that Conoshenti would only

claim, Conoshenti must show that (1) he

require fourteen days of bed rest and

took an FMLA leave, (2) he suffered an

medication and that he could return to

adverse employment decision, and (3) the

work on December 20, 1999. App. at

adverse decision was causally related to

233a-34a.

12

his leave.9 There is no dispute that Conoshenti took an FMLA leave and that

PSE&G discharged him on April 17, 1999.

The issue for decision, accordingly, is

9 whether the summary judgment record

The circuits have taken diverging paths

reflects a material dispute of fact as to

in analyzing claims that an employee has

whether there was a causal connection

been discharged in retaliation for having

between the two.

taken an FMLA leave. Compare Arban v.

West Publish. Corp., 345 F.3d 390, 401 PSE&G insists that Conoshenti was

(6th Cir. 2003) (noting that such claims

arise from § 2615(a)(2)), and Smith v.

Diffee Ford-Lincoln-Mercury, Inc., 298 regulations (quoted above), which is found

F.3d 955, 960 (10th Cir. 2002) (same), in a section implementing § 2615(a) of the

with Strickland v. Water Works & Sewer statute that, as we have noted, makes it

Bd., 239 F.3d 1199, 1206 (11th Cir. 2001) unlawful to interfere with, restrain or deny

(holding that such claims arise from § any FMLA right. See Bachelder, 259 F.3d

2615(a)(1) and (2), as well as 9 C.F.R. § at 1124. In Bachelder, the Ninth Circuit

825.220(c)), and King v. Preferred Court of Appeals rejected a challenge to

Technical Group, 166 F.3d 887, 891 (7th the validity of that regulation. It did so by

Cir. 1999) (same), and Hodgens v. pointing out that § 2615(a) was patterned

General Dynamics Corp., 144 F.3d 151, on § 8(a)(1) of the National Labor

159-60 (1st Cir. 1998) (same). All courts Relations Act (“NLRA”), 29 U.S.C. §

that have considered such situations have 158(a)(1), which prohibits interference

concluded that such discharges violate the with rights created by that Act. Citing

FMLA. Some have done so without NLRA cases, the Court reasoned that the

addressing the fact that retaliation for DOL was reasonable in concluding that

taking an FMLA leave does not come employers utilizing the taking of FMLA

within the literal scope of the sections of leave as a negative element in employment

the FMLA directed to retaliation: § decisions would inevitably chill employees

2615(a)(2), making it unlawful to retaliate in the exercise of those rights. 259 F.3d at

“against any individual for opposing any 1123-24. As we have noted, there is no

practice made unlawful by the [FMLA],” challenge here to the validity of §

and § 2615(b), making it unlawful to 825.220(c).

retaliate against any individual for Even though 29 C.F.R. §

participating in any inquiry or proceeding 825.220(c) appears to be an

related to the FM LA. See Bachelder v. implementation of the “interference”

Amecica West Airlines, Inc., 259 F.3d provisions of the FMLA, its text

1112, 1124 (9th Cir. 2001). unambiguously speaks in terms of

The Ninth Circuit, we believe “discrimination” and “retaliation,” and we

appropriately, has predicated liability in shall, of course, apply it in a manner

such situations on § 825.220(c) of the consistent with that text.

13

discharged because he violated the LCA. 308 F.3d at 338 (applying the “direct

In support of his claim that his FMLA evidence” analysis to a claim under the

leave was responsible for that decision, Age Discrimination in Employment Act).10

Conoshenti points primarily to three

documents: (1) the April 17th termination

letter which assigned as the reason for the 10

We noted in Fakete that:

discharge all 92 days of his absence from

“Direct evidence” means

work; (2) the draft termination letter dated

evidence sufficient to allow

December 20th stating that Conoshenti

the jury to find that “the

would be terminated because of his

‘decision makers placed

absence from work from December 6th to

substantial negative reliance

December 16th; and (3) Wasser’s

on [the protected activity] in

December 27th note indicating that

reaching their decision”’ to

Conoshenti would be discharged upon his

fire him. Connors v.

return to work.

Chrysler Fin. Corp., 160

The District Court concluded, and F.3d 971, 976 (3d Cir. 1998)

PSE&G does not contest, that these (quoting Price Waterhouse,

docu men ts were sufficient “direct 490 U.S. at 277, 109 S. Ct.

evidence” of Conoshenti’s FMLA leave 1775); see also Anderson v.

having been a factor in the discharge Consol. Rail Corp., 297

decision to give Conoshenti the benefit of F.3d 242, 248 (3d Cir. 2002)

the Supreme Court’s decision in Price (same).

Waterhouse v. Hopkins, 490 U.S. 228 308 F.3d at 338-39.

(1989). See Walden v. Georgia Pacific Because there is such direct

Corp., 126 F.3d 506 (3d Cir. 1997); evidence here and Price Waterhouse

Woodson v. Scott Paper, 109 F.3d 913 (3d accordingly places the burden of showing

Cir. 1997) (both recognizing that Price the absence of but-for cause on the

Waterhouse may properly be applied in a employer, we have no occasion to consider

retaliation case when there is “direct whether the reference in 29 C.F.R. §

evidence” of retaliatory animus). Under 825.220(c) (emphasis added) to “a

the Price Waterhouse framework, when an negative factor” makes it unnecessary for

FMLA plaintiff “alleging unlawful the plaintiff to prove but-for causation in

termination presents ‘direct evidence’ that FMLA retaliatory-discharge cases

his [FMLA leave] was a substantial factor unaffected by Price Waterhouse. See

in the decision to fire him, the burden of Bachelder, 259 F.3d at 1124 (holding that

persuasion on the issue of causation shifts, to prevail on a claim under § 825.220(c), a

and the employer must prove that it would plaintiff “need only prove by a

have fired the plaintiff even if it had not preponderance of the evidence that her

considered [the FMLA leave].” Fakete, taking of FM LA -prote c ted leave

constituted a negative factor in the

14

Justice O’Connor explained that this twelve weeks of FMLA-protected leave.

burden requires the employer: Conoshenti himself conceded to the

District Court, as well as in his brief on

To convince the trier of fact that it is

appeal, that any violation of the LCA

more likely than not that the decision

“would be deemed automatic just cause

would have been the same absent

and he would be fired.” Pl.’s Mem. Supp.

consideration of the illegitimate

Summ. J. at 2; Appellant’s Br. at 7. Here,

factor. The employer need not

there is no question that Conoshenti

isolate the sole cause for the

exceeded his twelve weeks of protected

decision; rather it must demonstrate

leave and, under the LCA, he was subject

that with the illegitimate factor

to immediate discharge on the very first

removed from the calculus, sufficient

workday that he was both absent from

business reasons would have induced

work and no longer protected by the

it to take the same employment

FMLA.

action. This evidentiary scheme

essentially requires the employer to Ironically, the evidence that Conoshenti

place the employee in the same relies upon, while permitting an inference

position he or she would have that his absence from work during the

occupied absent discrimination. twelve weeks following December 6th was

a substantial factor in the decision to

Price Waterhouse, 490 U.S. at 276-77.11

discharge him on April 17th, also

The District Court held that “there [was] demonstrates that he would have been

no genuine issue of material fact regarding discharged on April 17th had that prior

the proposition that [PSE&G] would have absence not occurred. The December

discharged [Conoshenti] for reasons not 20th draft termination letter, the Wasser

related to the FMLA leave.” App. at 15- December 27th note, and the fact that the

16. We agree. draft termination letter was not sent

demonstrate that PSE&G was determined

Even when viewed in a light most

both to respect Conoshenti’s right to

favorable to Conoshenti, the record clearly

FMLA leave and to discharge him under

indicates that Conoshenti would have been

the LCA as soon as it could legally do so.

discharged absent any consideration of his

While the reference to 92 days in the April

17th termination letter might, in isolation,

decision to terminate her”). support an inference that the protected

leave was considered in connection with

11

We have previously recognized that the discharge decision, it would not

Justice O’Connor’s concurring opinion in support a finding that Conoshenti would

Price Waterhouse represents the Supreme not have been discharged on April 17th in

Court’s holding in that case. See Anderson the absence of having taken 12 weeks of

v. Consol. Rail Corp., 297 F.3d 242, 248 protected leave.

(3d Cir. 2002).

15

Because a rational trier of fact could not le g i s la t i o n ; a d m i n i s tr a t iv e r u l e s,

find in Conoshenti’s favor, summary regulations or decisions; and judicial

judgment in favor of PSE&G on this claim decisions.” Pierce, 417 A.2d at 512.

was appropriate.12 Furthermore, the New Jersey Supreme

Court has recognized that “federal law and

B. The New Jersey Pierce Claim

policy can constitute New Jersey’s clear

In Pierce v. Ortho Pharmaceutical mandate of public policy.” D’Agostino v.

Corp., 417 A.2d 505, 512 (N.J. 1980), the Johnson & Johnson, Inc., 628 A.2d 305,

New Jersey Supreme Court recognized 312 (N.J. 1993). Whether a plaintiff has

that an at-will employee “has a cause of established the existence of such a public

action for wrongful discharge when the policy is an issue of law. Mehlman v.

discharge is contrary to a clear mandate of Mobil Oil Corp., 707 A.2d 1000, 1012

public policy.” An employee can prove (N.J. 1998). “A salutary limiting principle

such a wrongful discharge claim by is that the offensive activity must pose a

“show[ing] that the retaliation is based on threat of public harm, not merely private

the employee’s exercise of certain harm or harm only to the aggrieved

established rights, violating a clear employee.” Id. at 1013. The public policy

mandate of public policy.” MacDougall v. must also be “clearly identified and firmly

Weichert, 677 A.2d 162, 168 (N.J. 1996). grounded . . . . A vague, controversial,

“The sources of public policy include unsettled, and otherwise problematic

public policy does not constitute a clear

mandate.” MacDougall, 677 A.2d at 167.

12 “[U]nless an employee at will identifies a

Conoshenti asserted an additional

specific expression of public policy, he

FMLA claim in the District Court based on

may be discharged with or without cause.”

29 C.F.R. § 825.220(b), which provides

Pierce, 417 A.2d at 512.

that “‘[i]nterfering with’ the exercise of an

employee’s rights would include . . . Conoshenti contends that he is entitled

manipulation by a covered employer to to recover under Pierce because he was

avoid responsibilities under FMLA.” His discharged in violation of a clear public

theory was that PSE&G’s alleged policy established by the FMLA,13 i.e., a

assurances that he should take as long as

necessary to recover cons tituted

13

“manipulation” under § 825.220(b). While At least one New Jersey court has

Conoshenti’s briefing before us refers to expressly held that the FMLA establishes

those assurances in support of his failure a clear mandate of public policy sufficient

to advise claim, it does not assign as error to support a Pierce claim. See Hampton v.

the District Court’s rejection of his Armand Corp., 834 A.2d 1077, 1081 (N.J.

“manipulation” claim. Accordingly, we Super. Ct. App. Div. 2003) (holding that a

have no occasion to address the viability of Pierce claim may rely on the FMLA as a

such a claim. source of public policy, but only if the

16

policy of ensuring the job security of In most cases of wrongful discharge,

employees who have serious health the employee must show retaliation

conditions that require temporary leave. If that directly relates to an employee’s

the record would support a finding that resistance to or disclosure of an

Conoshenti was discharged because he employer’s illicit conduct. In some

took FMLA leave, this might be a viable cases, however, the employee may

theory, although it is not clear to us that a show that the retaliation is based on

Pierce claim in that event would be of any the employee’s exercise of certain

additional benefit to him. As we have established rights, violating a clear

held, however, the record will not support mandate of public policy.

a finding that Conoshenti was discharged

Conoshenti was discharged for violating

in retaliation for taking his FMLA leave.

the LCA and the conduct constituting that

We also conclude that Conoshenti violation, and that discharge, accordingly,

would not have a meritorious Pierce claim was unrelated to his having taken FMLA

based on the FMLA even if he were able leave. As a result, we predict that the New

to show that the failure to advise him of Jersey Supreme Court would hold that

his FMLA rights caused him prejudice. Conoshenti’s discharge did not give rise to

The Pierce doctrine is about wrongful a Pierce claim even if it was preceded by

discharges, and it has only been applied a failure to provide advice required by the

where the discharge itself offended a clear FMLA. The District Court’s summary

public policy. Thus, all cases in which it judgment on Conoshenti’s Pierce claim

has been successfully advanced have will, accordingly, stand.

involved situations in which the discharge

C. The NJLAD Claim

was in retaliation for conduct supported by

the policy or for the employee’s exercise The NJLAD prohibits “any unlawful

of some established right. As the Supreme discrimination against any person because

Court of New Jersey explained in such person is or has been at any time

MacDougall v. Weichert, 677 A.2d 162, disabled or any unlawful employment

168 (N.J. 1996) (citations omitted): practice against such person, unless the

nature and extent of the disability

reasonably precludes the performance of

plaintiff is an “eligible employee” under the particular employment.” N.J. Stat.

the FMLA). Ann. § 10:5-4.1. Further, the New Jersey

Conoshenti also asserts before us a Administrative Code requires that an

Pierce claim based on the NJLAD. He “employer must make a reasonable

expressly advised the District Court, accommodation to the limitations of an

however, that his Pierce claim was based employee or applicant who is a person

solely on the FM LA and not on the with a disability, unless the employer can

NJLAD. Accordingly, any Pierce claim demonstrate that the accommodation

based on the NJLAD has been waived.

17

would impose an undue hardship.” N.J. provision of the A mericans w ith

Admin. Cod tit. 13, § 13-2.5. This duty to Disabilities Act (ADA)”).

accommodate, however, is subject to “an

As to the second element, however, the

exception . . . where it can reasonably be

District Court found that, as of the end of

determined that an . . . employee, as a

his FMLA-protected leave, Conoshenti

result of the individual disability, cannot

was unable to perform any of the functions

presently perform the job even with

of his job. Accordingly, the District Court

reasonable accommodation.” N.J. Admin.

concluded that the only reasonable

Code tit. 13, § 13-2.8(a).

accommodation that would protect his

Conoshenti claims that PSE&G violated employment status as of that date would

his rights under NJLAD by denying him a have been a leave of absence. While

reasonable accommodation. “Generally, a noting the existence of federal cases

p ri m a facie case of failure to recognizing a leave of absence as a

accommodate requires proof that (1) the “reasonable accommodation” under the

plaintiff had a LAD handicap; (2) was ADA, the District Court nevertheless held

qualified to perform the essential functions that a leave of absence was not a

o f t h e j o b , w i t h o r w i th o u t reasonable accommodation under the

accommodation; and (3) suffered an NJLAD. It did not err in so holding.

adverse employment action because of the

As we have noted, the New Jersey

handicap.” Bosshard v. Hackensack

Adm inistrative C ode provides an

University Medical Center, 783 A.2d 731,

exception to an employer’s obligation to

739 (N.J. Super. Ct. App. Div. 2001)

provide a reasonable accommodation

(citing Seiden v. Marina Assoc., 718 A.2d

“where it can reasonably be determined

1230, 1237 (N.J. Super. Ct. Law Div.

that an applicant or employee, as a result

1998)).

of the individual’s disability, cannot

The District Court first correctly ruled presently perform the job even with

that Conoshenti’s temporary disability reasonable accommodation.” N.J. Admin.

constituted a handicap under NJLAD. See Code tit. 13, § 13-2.8(a) (emphasis added).

Soules v. Mount Holiness Mem. Park, 808 This provision of the New Jersey

A.2d 863, 865-66 (N.J. Super. Ct. App. regulation reflects a significant difference

Div. 2002) (holding that a “temporary between the ADA and NJLAD. While the

inability to work while recuperating from ADA applies to employees “who, with or

surgery or injury is a handicap” under without reasonable accommodation, can

NJLAD); see also Viscik v. Fowler Equip. perform the essential functions of the

Co., 800 A.2d 826, 835 (N.J. 2002) (noting employment position that such individual

that “[t]he term ‘handicapped’ in LAD is holds or desires,” 42 U.S.C. § 12111(8)

not restricted to ‘severe’ or ‘immutable’ (emphasis added); see also 29 C.F.R. §

disabilities and has been interpreted as 1630.2(m), NJLAD protects only an

significantly broader than the analogous employee who can presently perform the

18

essential functions of his job with or would have excused Conoshenti from

without the reasonable accommodation. present performance contrary to the

The NJLAD regulation thus requires that explicit requirements of the NJLAD

the handicapped employee be able to regulation. We are confident that the New

perform the essential functions of his job Jersey Supreme Court would not sanction

during the application of the reasonable such a conflict. We will therefore affirm

accommodation – that is, at the same time the District Court’s grant of summary

that the reasonable accommodation is judgment in favor of PSE&G on

being implemented. The ADA, however, Con oshenti’s NJL A D f ailure-to -

does not contain any such temporal accommodate claim.

requirement. Accordingly, the federal

V. Conclusion

courts that have permitted a leave of

absence as a reasonable accommodation The judgment of the District Court will

under the ADA have reasoned, explicitly be reversed insofar as it granted summary

or implicitly, that applying such a judgment to PSE&G on Conoshenti’s

reasonable accommodation at the present FMLA failure to advise claim. It will be

time would enable the employee to affirmed in all other respects. This matter

perform his essential job functions in the will be remanded to the District Court for

near future. See, e.g., Criado v. IBM further proceedings consistent with this

Corp., 145 F.3d 437, 444 (1st Cir. 1998) opinion.

(“Criado offered evidence tending to show

that her leave would be temporary and

would allow her physician to design an

effective treatment program.”). That

reasoning is precluded under NJLAD

because of the present performance

exception.

We decline to hold that a temporary

leave of absence must be granted under

NJLAD to reasonably accommodate a

handicapped employee’s inability to

presently perform the essential functions

of his job. Such a holding would

effectively defeat the application of the

present performance exception. Requiring

PSE&G to grant Conoshenti a leave of

absence as an accommodation following

his FMLA leave would not have enabled

him to presently perform his job; rather, it

19