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Conoshenti v. Pub Ser Elec & Gas Precedential or Non-Precedential: Precedential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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Recommended Citation "Conoshenti v. Pub Ser Elec & Gas" (2004). 2004 Decisions. Paper 748. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/748

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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.,

,

(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.,

(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,

(1986); public policy under Pierce v. Ortho Wisniewski v. Johns-Manville Corp., 812 Pharmaceutical Corp.,

,

(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

(2001) because the Dept. of Corrections,

, 192 case involved a federal question, and n.2 (3d Cir. 2001) (quoting Celotex, 477 removal was proper under

(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

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.

(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.”

(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.”

(a)(3)(B). Thus, accommodates the legitimate interests of for example, if an employee is discharged employers.”

(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.”

(2)(A). “The

(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.”

(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

(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.”

(b). a cause of action against employers who Moreover, “[e]mployees cannot waive, nor violate § 2615. See

. 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

. 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,”

(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.

(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.,

(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

(a)(1). The District Court Ragsdale,

. 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,

. 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,

(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.”

. 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.,

, 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.,

(11th Cir. 2001) unlawful to interfere with, restrain or deny (holding that such claims arise from § any FMLA right. See Bachelder,

(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,

(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.,

, 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,

308 F.3d at 338-39. (1989). See Walden v. Georgia Pacific Because there is such direct Corp.,

(3d Cir. 1997); evidence here and Price Waterhouse Woodson v. Scott Paper,

(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,

.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.,

, 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,

. 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.,

(N.J. 1980), the Johnson & Johnson, Inc.,

, 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.,

, 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.”

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

(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,

. 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.”

(b), which provides Pierce,

. 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.,

(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,

, 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,

, 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.,

(N.J. 2002) (noting employment position that such individual that “[t]he term ‘handicapped’ in LAD is holds or desires,”

(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.,

(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

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