2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Conoshenti v. Pub Ser Elec & Gas" (2004). 2004 Decisions. Paper 748.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/748
PRECEDENTIAL

IN THE UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 03-2257

 

 RICHARD CONOSHENTI

Appellant

v.

PUBLIC SERVICE ELECTRIC 

& GAS COMPANY

 

On Appeal From the United States 

District Court

For the District of New Jersey 

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

Dis trict Judge: Hon. Joseph A. 

 Greenaway, Jr.

 

Argued January 26, 2004

BEFORE: NYGAARD, FUENTES

and STAPLETON, Circuit Judges

(Opinion Filed: April 13, 2004) 

 

 

Gerald J. Resnick (Argued)

Andrea Rachiele

Deutsch & Resnick

One University Plaza - Suite 305

Hackensack, NJ 07601

 Attorneys for Appellant

Patrick Westerkamp (Argued)

Public Service Electric &

 Gas Company

80 Park Plaza – T5E

Newark, NJ 07101-0570

 Attorney for Appellee

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

Appellant Richard Conoshenti alleges

that his employment with Public Service

Electric and Gas Company (“PSE&G”)

was terminated in violation of the Family

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

§ 2601 et seq., (“FMLA”), New Jersey

public policy under Pierce v. Ortho

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

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

Jersey Law Against Discrimination, N.J.

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

The District Court granted summary

judgment in favor of PSE&G on all of

Conoshenti’s claims. We will reverse the

District Court’s judgment with respect to

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. 

I. Facts and Procedural History

Richard Conoshenti was employed as a

First Grade Mechanic with PSE&G since
2

1972. In April and May 1999, PSE&G

accused him of keeping inaccurate time

records and leaving his shift early to take

a shower. Conoshenti denied keeping

inaccurate records, claiming that he was

merely engaged in the accepted practice of

correcting times that were inappropriately

recorded. As for leaving his shift early,

Conoshenti claimed that he had been

working with chemicals that irritated his

skin, and that a shower was necessary.

Nevertheless, on May 21, 1999, PSE&G

made a decision to discharge him for these

violations of company policy. 

Upon the advice of Conoshenti’s union,

and because he was willing to accept

blame to keep his job,1 he agreed to enter

into a Last Chance Agreement (“LCA”).

Under the LCA, PSE&G agreed that

Conoshenti would be reinstated,

conditioned upon his satisfactory

performance of each of the obligations

outlined in a letter dated August 10, 1999.

These obligations included: taking and

passing a physical examination, reporting

to work every day and on time,

maintaining s a tisf a cto ry wor k

performance, and maintaining a clean

safety record. Conoshenti understood that

if he were to violate any of these

requirements, such violation would

automatically constitute just cause for his

immediate discharge.

From August 10, 1999, the date he

entered into the LCA, to December 3,

1999, Conoshenti performed each of his

obligations and was not warned,

reprimanded, or fired for any improper

conduct. On December 4, 1999, however,

while outside the scope of his

employment, Conoshenti was struck by an

automobile and sustained a serious injury

that required hospitalization. Shortly

thereafter, on December 6, 1999,

Conoshenti informed his boss at PSE&G

of his accident and the seriousness of his

injuries. He also informed his boss that his

physician had indicated that he would need

to be out of work for at least two weeks in

order to recover.2 PSE&G did not notify

Conoshenti at that time, or at any time

thereafter, of his rights under the FMLA.

3

 

1Conoshenti continues to dispute,

however, the truth of the PSE&G’s

charges.

 

2Additionally, the record indicates that

on December 8, 1999, PSE&G received a

note from Conoshenti’s physician, Dr.

Edward A. Somma, dated December 6th,

indicating that Conoshenti would require

fourteen days of bedrest and medication

and that he could return to work on

December 20, 1999. App. at 233a-34a.

 

3During proceedings in the District

Court, PSE&G had claimed that it

informed Conoshenti of his rights under

the FMLA by letter dated December 15,

1999. Conoshenti claimed never to have

received that letter. At oral argument on

the parties’ cross-motions for summary

judgment, however, PSE&G accepted, for

purposes of summary judgment, that no

notice had been sent to Conoshenti on

December 15, 1999 or at any other time.

PSE&G also stipulated for purposes of this
3

In particular, Conoshenti was not told that

he was entitled, under the FMLA, to

twelve weeks of protected leave. He was

also not told that the leave he was using

would be considered FMLA leave. 

On December 16, 1999, Conoshenti met

with an orthopedic surgeon, Dr. Alexander

P. Russoniello, who diagnosed him with

torn rotator cuffs and recommended

immediate surgery. The surgery was

scheduled for early January 2000.

Conoshenti notified PSE&G of his plan to

undergo the surgery and was told to take

time to recuperate. On December 17th, he

sent PSE&G a form completed by Dr.

Russoniello that indicated his diagnosis

and that he would be unable to work until

approximately April 2000. 

Thereafter, on or about December 20,

1999, PSE&G began administrative steps

to end Conoshenti’s employment for

violating the LCA. These steps included

the preparation of a Recommendation for

Disciplinary Action, which recommended

that Conoshenti be discharged because he

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

the following 9 work days, a violation of

his ‘Last Chance Agreement.’” App. at

236a. The recommendation was approved

by several PSE&G officers on December

20th, but no action was taken. PSE&G

also drafted a termination letter, dated

December 20th, that cited Conoshenti’s

absence on December 6th and the

subsequent ten days as the reason for his

discharge. App. at 237a. This letter,

however, was not signed and was never

sent.

 Meanwhile, Conoshenti had become

concerned about his job security and

therefore contacted his union to determine

what he needed to do to protect himself.

The union advised him to notify PSE&G

that he desired to have his leave counted as

FMLA leave. Following this advice,

Conoshenti, on December 27, 1999, sent a

letter to his direct supervisor at PSE&G,

Bob Wasser, stating:

I would like to request an immediate

leave under the Family and Medical

Leave Act. I am requesting this

leave due to the fact that I was in an

accident on December 4, 1999. If I

can provide any other information or

doctor notification I would

appreciate contact from the

company.

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

the following handwritten notation:

Conoshenti called and stated that he

wanted a “family medical leave.” I

responded by saying that I would

research it for him and call him back.

[I] called J. Tiberi4 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.

(358a - 359a).” Appellee’s Br. at 6 n.4. 

4

J. Tiberi was the signatory for PSE&G

on the LCA.
4

1-01-00[.] [W]hen I mentioned

“family leave” Tiberi said he would

call [redacted]. Tiberi paged me 1⁄2

hour later. I called and was informed

by Tiberi that we must hold off on

the discharge, because: He is entitled

to benefits while he is on disability.

It is against the law to discharge

under these conditions. Tiberi said

that he will be discharged upon his

return to work 1st day back. 

App. at 246a. Conoshenti then underwent

surgery for his torn rotator cuff in early

January 2000. Thereafter, Conoshenti’s

doctors periodically updated PSE&G on

his condition. Conoshenti claimed that

throughout his recovery, he was told by

several different people at PSE&G,

including Wasser, to take his time

recovering and to not hurry back until he

was “100%.” App. at 294a, 295a.

Conoshenti also claimed that he was

assured that “light duty” would be

available to him when he was able to

return to work. App. at 295a. 

 On March 28, 2000, Dr. Russoniello

authorized Conoshenti to return to work

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

Conoshenti, in turn, notified PSE&G of his

ability to return to work. PSE&G

informed him, however, that the facility

where he worked could not accommodate

desk duty and that his return to work

would have to be delayed until his doctor

cleared him for full active manual labor.

In April 2000, Conoshenti’s doctor

authorized his return to unrestricted work

duty. On April 12, 2000, Conoshenti took

and passed a physical examination

required by PSE&G. It was Conoshenti’s

understanding that passing the physical

examination was the only condition placed

on his returning to work. Also on April

12, 199 9, PS E & G re initiate d

administrative steps to end Conoshenti’s

employment for violation of the LCA. On

April 17, 1999, Conoshenti reported for

work. After one hour on the job, however,

he was called into his supervisor’s office

and told he was being terminated for

violation of the LCA. The termination

letter stated, in part:

On December 6, 1999, you were

unable to report to work as a result

of being involved in a motor vehicle

accident. Subsequently, you were

out of work for 92 days, a violation

of the terms and conditions of your

“Last Chance Agreement.” As a

result of your failure to comply with

the terms and conditions of this

agreement, your employment with

Public Service Electric and Gas

Company is being terminated April

17, 2000.

App. at 269a. 

It is undisputed that Conoshenti’s

absence from work exceeded the twelve

weeks of leave that are protected by the

FMLA. If Conoshenti’s protected leave

were considered to have begun on

December 6, 1999, the twelve week period

would have expired on March 1, 2000.

Even if the twelve week period were

considered to have begun on December 27,

1999, the protected period would have

expired on March 19, 2000. 
5

After his discharge, Conoshenti and his

union filed a grievance and the case was

arbitrated pursuant to the LCA. Although

the arbitrator noted that the LCA was very

stringent and possibly even “draconian,”

he nevertheless found that Conoshenti had

violated its terms and therefore denied the

grievance. 

Conoshenti then filed a complaint

against PSE&G in the Superior Court of

New Jersey, Union County. Counts One

and Two of the complaint alleged

violations of NJLAD. Count Three

alleged that Conoshenti had been

wrongfully discharged in violation of

public policy under Pierce v. Ortho

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

A.2d 505, 512 (N.J. 1980). Count Four

alleged violations of the FMLA. PSE&G

removed the case to the United States

District Court for the District of New

Jersey. 

Conoshenti and PSE&G filed crossmotions for summary judgment. The

District Court granted summary judgment

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

claims. This timely notice of appeal

followed.5

II. Discussion

Conoshenti argues that the District

Court erred in granting PSE&G’s motion

for summary judgment and denying his

own motion for summary judgment. We

review the District Court’s grant of

summary judgment de novo. American

Medical Imaging Corp. v. St. Paul Fire &

Marine Ins. Co., 949 F.2d 690, 692 (3d

Cir.1991). Summary judgment is

appropriate if there are no genuine issues

of material fact presented and the moving

party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986);

Wisniewski v. Johns-Manville Corp., 812

F.2d 81, 83 (3d Cir. 1987). In determining

whether a genuine issue of fact exists, we

resolve all factual doubts and draw all

reasonable inferences in favor of the

nonmoving party. Suders v. Easton, 325

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

“Although the initial burden is on the

summary judgment movant to show the

absence of a genuine issue of material fact,

‘the burden on the moving party may be

discharged by ‘‘showing’’ – that is,

pointing out to the district court – that

there is an absence of evidence to support

the nonmoving party’s case’ when the

nonmoving party bears the ultimate burden

of proof.” Singletary v. Pennsylvania

Dept. of Corrections, 266 F.3d 186, 192

n.2 (3d Cir. 2001) (quoting Celotex, 477

 

5The District Court had jurisdiction

under 28 U.S.C. § 1331 (2001) because the

case involved a federal question, and

removal was proper under 28 U.S.C. §

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

supplemental jurisdiction over the New

Jersey state law claims under 28 U.S.C. §

1367 (2001). We have jurisdiction over

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

(2001) because the District Court’s order

granting summary judgment to PSE&G on

all claims was a final decision.
6

U.S. at 325).

A. Family and Medical Leave Act Claims

The stated purposes of the FMLA are to

“balance the demands of the workplace

with the needs of families” and “to entitle

employees to take reasonable leave for

medical reasons.” 29 U.S.C. § 2601(b)(1)

and (2). The FMLA seeks to accomplish

these purposes “in a manner that

accommodates the legitimate interests of

employers.” 29 U.S.C. § 2601(b)(3). In

furtherance of these objectives, the FMLA

requires that “an eligible employee shall be

entitled to a total of twelve workweeks of

leave during any twelve month period” if

the employee has a “serious health

condition that makes the employee unable

to perform the functions of the position of

such employee.” 29 U.S.C. §

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

employee returns from an FMLA leave,

the employee is entitled to be reinstated to

his or her former position, or an equivalent

one. 29 U.S.C. § 2614(a)(1). This right to

reinstatement is qualified by a statutory

directive that it does not entitle a restored

employee to a right, benefit or position to

which the employee would not “have been

entitled had the employee not taken the

leave.” 29 U.S.C. § 2614(a)(3)(B). Thus,

for example, if an employee is discharged

during or at the end of a protected leave

for a reason unrelated to the leave, there is

no right to reinstatement. 29 C.F.R. §

825.216(a)(1).

In order to protect these substantive

rights, the FMLA proscribes an employer

from engaging in certain acts. See 29

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

it “unlawful for any employer to interfere

with, restrain, or deny the exercise of or

the attempt to exercise, any right provided

under thissubchapter.” Section 2615(a)(2)

 makes it “unlawful for any employer to 6“The term ‘eligible employee’ means

an employee who has been employed – (i)

for at least 12 months by the employer

with respect to whom leave is requested

under section 2612 of this title; and (ii) for

at least 1,250 hours of service with such

employer during the previous 12-month

period.” 29 U.S.C. § 2611(2)(A). “The

term ‘serious health condition’ means an

illness, injury, impairment, or physical or

mental condition that involves – (A)

inpatient care in a hospital, hospice, or

residential medical care facility; or (B)

continuing treatment by a health care

provider.” 29 U.S.C. § 2611(11). When

an eligible employee needs to take FMLA

leave that was not foreseeable, “[t]he

employee need not expressly assert rights

under the FMLA or even mention the

FMLA”; rather the employee need only

notify the employer that leave is needed.

29 C.F.R. § 825.303(b). 

In this case, there is no dispute that

Conoshenti was an eligible employee or

that his injury qualified as a serious health

condition. Moreover, as the District Court

noted, it is undisputed that Conoshenti

fulfilled his duty to notify under the

FMLA by informing PSE&G of his injury

and need for time off within two days of

his accident. 
7

discharge or in any other manner

discriminate against any individual for

opposing any practice made unlawful by

this subchapter.” Finally, § 2615(b)

provides that “[i]t shall be unlawful for

any person to discharge or in any other

manner discriminate against any individual

because such individual – (1) has filed any

charge, or has instituted or caused to be

instituted any proceeding, under or related

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

about to give, any information in

connection with any inquiry or proceeding

relating to any right provided under this

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

to testify, in any inquiry or proceeding

relating to any right provided under this

subchapter.” The FMLA grants employees

a cause of action against employers who

violate § 2615. See 29 U.S.C. § 2617. 

In addition, the United States

Department of Labor (“DOL”) has

promulgated regulationsimplementing the

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

Of particular significance here, §

825.220(c) of those regulations provides:

An employer is prohibited from

discriminating against employees or

prospective employees who have

used FMLA leave. For example, if

an employee on leave without pay

would otherwise be entitled to full

benefits (other than health benefits),

the same benefits would be required

to be provided to an employee on

unpaid FMLA leave. By the same

token, employers cannot use the

taking of FMLA leave as a negative

factor in employment actions, such as

hiring, promotions or disciplinary

actions; nor can FMLA leave be

counted under “no fault” attendance

policies.

29 C.F.R. § 825.220(c). The DOL’s

regulations also provide that “[a]ny

violations of the [FMLA] or of these

regulations constitute interfering with,

restraining, or denying the exercise of

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

825.220(b). “‘Interfering with’ the

exercise of an employee’s rights would

include, for example, not only refusing to

authorize FMLA leave, but discouraging

an employee from using such leave. It

would also include manipulation by a

covered employer to avoid responsibilities

under FMLA.” 29 C.F.R. § 825.220(b).

Moreover, “[e]mployees cannot waive, nor

may employers induce employees to

waive, their rights under FMLA.” 29

C.F.R. § 825.220(d).

Finally, the DOL’s regulations impose

upon the employer obligations to

communicate with employees regarding

their rights under the FMLA. In particular,

the regulations require employers to

provide employees with individualized

notice of their FMLA rights and

obligations. Pursuant to 29 C.F.R. §

825.208(a), “[i]n all circumstances, it is

the employer’s responsibility to designate

leave, paid or unpaid, as FMLAqualifying, and to give notice of the

designation to the employee . . . .” If an

employer provides employees with a

handbook concerning employee benefits,

“the handbook must incorporate

information on FMLA rights and
8

responsibilities and the employer’s policies

regarding the FMLA.” 29 C.F.R. §

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

provide such a handbook, such

information must be provided when an

employee requests leave. 29 C.F.R. §

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

employee requests leave, the employer

must, within a reasonable time thereafter –

“one or two business days if feasible,”

“provide the employee with written notice

detailing the specific expectations and

obligations of the employee and explaining

any consequences of a failure to meet

these obligations.” 29 C.F.R. §

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

must include, among other things, whether

“the leave will be counted against the

employee’s annual FMLA leave

entitlement,” 29 C.F.R. § 825.301(b)(1)(i),

and “the employee’s right to restoration to

the same or equivalent job upon return

from lea ve,” 2 9 C .F.R . §

825.301(b)(1)(vii). Neither party in this

case has challenged the validity of these

regulations. 

There are two arrows to Conoshenti’s

FMLA bow. He insists that the District

Court erred in granting summary judgment

against him because (1) PSE&G failed to

advise him of his FMLA rights and

thereby interfered with his ability to

meaningfully exercise his right to an

FMLA leave; and (2) PSE&G “use[d] the

taking of FMLA leave as a negative factor

in” its decision to discharge him on April

17, 2000. 29 C.F.R. § 825.220(c). We

will address each of these independent

theories of liability in turn.

1. The Failure to Advise Claim

Conoshenti argues that PSE&G’s

failure to advise him of his right to twelve

weeks of FMLA leave, after he properly

gave notice of his serious health condition,

constituted an interference with his FMLA

right to that protected leave. Had he

received the advice PSE&G was obliged to

provide, Conoshenti insists, he would have

been able to make an informed decision

about structuring his leave and would have

structured it, and his plan of recovery, in

such a way as to preserve the job

protection afforded by the Act. We

conclude that this is a viable theory of

recovery and that the District Court

accordingly erred in granting summary

judgment on it against Conoshenti.

As we have noted, the parties stipulated

in the District Court that, for purposes of

summary judgment, PSE&G did not advise

Conoshenti of his rights under the FMLA.

As we have also noted, the regulation

under the FMLA imposed a duty on

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

that Conoshenti will show an interference

with his right to leave under the FMLA,

within the meaning of 29 U.S.C. §

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

this failure to advise rendered him unable

to exercise that right in a meaningful way,

thereby causing injury. Neither PSE&G in

its brief nor the District Court in its

opinion contest the theoretical basis for

this claim, and we believe that basis is

supported by the relatively sparse authority

relevant to the issue.

In Ragsdale v. Wolverine World Wide,
9

Inc., 535 U.S. 81 (2002), the Supreme

Court had before it the FMLA regulations

requiring an employer to advise employees

of FMLA rights. It was called upon to

determine the validity of a regulation, 29

C.F.R. § 825.770(a),7 which imposed a

penalty on an employer who failed to

advise that a leave taken by an employee

would count against her FMLA

entitlement. Under this regulation, the

twelve week FMLA leave did not

commence until this advice was given. In

Ms. Ragsdale’s case, this would have

entitled her to 30 weeks of leave, even

though she could not show that she was in

any way prejudiced by the employer’s

breach of duty. The Court struck down

this penalty provision, noting that it was

“unconnected to any prejudice the

employee might have suffered from the

employer’s lapse” and, accordingly,

“incompatible with the FMLA’s

comprehensive remedial mechanism”

which affords no relief absent prejudice

from a statutory violation. Ragsdale, 535

U.S. at 88-89.

The Ragsdale Court expressly noted

that the validity of notice requirements of

the regulations themselves was not before

it. Accordingly, Ragsdale is not

dispositive of anything before us. It is

helpful, however, because the Court found

“reasonable” Ragsdale’s suggestion that a

failure to advise of FMLA rights could

constitute an interference with “an

employee’s exercise of basic FMLA rights

in violation of § 2615”:

Section 825.700(a), Ragsdale

contends, reflects the Secretary’s

understanding that an employer’s

failure to comply with the

designation requirement might

sometimes burden an employee’s

exercise of basic FMLA rights in

violation of § 2615. Consider, for

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

to take intermittent leave when

medically necessary. An employee

who undergoes cancer treatments

every other week over the course of

12 weeks might want to work during

the off weeks, earning a paycheck

and saving six weeks for later. If she

is not informed that her absence

qualifies as FMLA leave – and if she

does not know of her right under the

statute to take intermittent leave –

she might take all 12 of her FMLAguaranteed weeks consecutively and

have no leave remaining for some

future emergency. In circumstances

like these, Ragsdale argues, the

employer’s failure to give the notice

required by the regulation could be

said to “deny,” “restrain,” or

“interfere with” the employee’s

exercise of her right to take

intermittent leave.

This position may be reasonable, but

 

7

Section 825.770(a) provided, in part:

If an employee takes paid or

unpaid leave and the

employer does not designate

the leave as FMLA leave,

the leave taken does not

count against an employee’s

FMLA entitlement.
10

the more extreme one embodied in §

825.700(a) is not. . . . [It] establishes

an irrebuttable presumption that the

employee’s exercise of FMLA rights

was impaired – and that the

employee deserves 12 more weeks.

There is no empirical or logical basis

for this presumption, as the facts of

this case well demonstrate. Ragsdale

has not shown that she would have

taken less leave or intermittent leave

if she had received the required

notice.

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

of the Ragsdale opinion, together with our

own assessment of the reasonableness of

the notice regulations, persuades us that

the Supreme Court would find an

actionable “interference” in violation of §

2615(a) here in the event Conoshenti is

able to show prejudice as a result of that

violation.

The District Court from which this

appeal comes to us has previously

endorsed the theory of recovery

Conoshenti advances here. In Nusbaum v.

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

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

Margot Nusbaum learned that she required

back surgery, she requested that her

employer allow her to take medical leave

and also requested information regarding

the employer’s medical leave policy. The

employer refused to provide this

information. Moreover, Nusbaum never

received any ma terials providing

information on FMLA leave and the

employer had not complied with 29 U.S.C.

§ 2619’s requirement that it post a notice

outlining the FMLA’s important

provisions and the employees’ FMLA

rights. Her employer also failed to

prospectively designate her leave as

FMLA leave in violation of 29 C.F.R. §§

825.208 and .700. Nusbaum took the

leave required for her surgery, and was

discharged during her absence. Nusbaum

then brought suit, alleging that her

employer’s failure to notify her of her right

to twelve weeks of FMLA-protected leave,

and her subsequent termination, interfered

with her FMLA rights in violation of 26

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

denied the employer’s motion to dismiss,

holding as follows:

[T]he purpose of the regulations

enacted by the DOL . . . is to ensure

that employers allow their employees

to make informed decisions about

leave. . . . The overall intent of the

FMLA is lost when an employer fails

to provide an employee with the

opportunity to make informed

decisions about her leave options and

limitations. Without such an

opportunity, the employee has not

received the statutory benefit of

taking necessary leave with the

reassurance that her employment,

under proscribed conditions, will be

waiting for her when she is able to

return to work.

Id. at 385-86. The court concluded that

Nusbaum “was, therefore, not given the

proper information that would have

allowed her to structure her leave in a way

that would have left her protected by the

FMLA.” Id. at 386. We find this
11

reasoning of the Nusbaum Court

persuasive.

The District Court in Conoshenti’s case

accepted his claim that the regulations

imposed a duty on PSE&G to advise him

of his FMLA rights and that a failure to do

so could result in an “interference” under

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

however, on the ground that Conoshenti

had proven no prejudice as required by

Ragsdale. In support of this conclusion,

the Court first noted that “his ignorance of

the nature of his leave ended on December

27.” Accordingly, it held that

Conoshenti’s reliance on Nusbaum could

only be used to delay the commencement

of his twelve weeks of FMLA-protected

leave from December 6th to December

27th; this would, in any event, have left

him unprotected by the FMLA before he

returned to work. The Court then

observed that Conoshenti had “presented

no evidence that he could have made a

different choice had PSE&G informed him

that his FMLA leave began on December

6,” and made “only the bare assertion that

he could have made different decisions.”

App. at 16a. We hold that the District

Court’s analysis is at odds with wellestablished principles governing the

propriety of summary judgments.

The record indicates that in December

1999, Conoshenti contacted his union in

order to learn what he needed to do to

protect his job during his recovery. In

response to this inquiry, the union advised

Conoshenti to inform PSE&G that he

wanted his leave to be considered FMLA

leave. The record further indicates that

Conoshenti then sent a letter to PSE&G on

December 27, 1999 stating that he “would

like to request an immediate leave under

the Family and Medical Leave Act.” App.

at 73a. Nothing in the record, however,

indicates that Conoshenti knew that he was

entitled to only twelve weeks of protected

leave. Rather, the record simply reflects

what Conoshenti was told to say and what

he did say. The summary judgment record

thus does not speak to Conoshenti’s

knowledge of his relevant FMLA rights on

December 27th or thereafter during his

leave.

Similarly, the summary judgment

record, as the District Court correctly

noted, contains no competent evidence

regarding the alternatives that would have

been available to Conoshenti had PSE&G

advised him of his rights when he

requested leave on December 6th. Only

Conoshenti’s brief contains a statement of

what he would have done had he been

advised of his rights.8

 

8Conoshenti insists that his recovery

consisted of two phases: the initial

recovery from the accident, and the

subsequent recovery from the shoulder

surgery. If he had known that he could not

exceed twelve weeks of leave, he claims,

he could have explored the feasibility of

postponing the surgery to a subsequent

FMLA period. The record does contain

some support for Conoshenti’s assertion

that he could have returned to work within

twelve weeks without the shoulder

surgery. Prior to Conoshenti’s visit with

the orthopedic surgeon who recommended
12

While we agree with the District Court

that these gaps in the record required it to

deny Conoshenti’s motion for summary

judgment, they clearly did not warrant the

grant of PSE&G’s motion. It is well

established that “a party seeking summary

judgment always bears the initial

responsibility of informing the district

court of the basis for its motion, and

identifying those portions of ‘the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any,’ which

it believes demonstrate the absence of a

genuine issue of material fact.” Celotex

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

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

respect to an issue on which the

nonmoving party bears the burden of

proof,” “the burden on the moving party

may be discharged by ‘showing’ – that is,

pointing out to the district court – that

there is an absence of evidence to support

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

Here, PSE&G never asserted that

Conoshenti could not meet his burden of

proving that he could have structured his

leave differently. Nor did PSE&G argue

that a showing of prejudice was an

essential element of Conoshenti’s claim or

that such a showing was material in any

way. Accordingly, we conclude that

PSE&G, as the moving party, did not

satisfy its initial burden of pointing to an

absence of evidence as to whether

Conoshenti had been prejudiced.

Conoshenti was therefore not required,

pursuant to Fed. R. Civ. P. 56(e), to

respond with specific facts establishing a

genuine issue with respect to the prejudice

requirement. See Celotex Corp. v. Catrett,

477 U.S. at 322.

2. The Discharge Claim

Subsection 825.220(c) of the FMLA

regulations provides:

An employer is prohibited from

discriminating against employees or

prospective employees who have

used FMLA leave. For example, if

an employee on leave without pay

would otherwise be entitled to full

benefits (other than health benefits),

the same benefits would be required

to be provided to an employee on

unpaid FMLA leave. By the same

token, employers cannot use the

taking of FMLA leave as a negative

factor in employment actions, such

as hiring, promotions or disciplinary

actions; nor can FMLA leave be

counted under “no fault” attendance

policies.

It is apparent from the face of §

825.220(c) that to be successful on this

claim, Conoshenti must show that (1) he

took an FMLA leave, (2) he suffered an

adverse employment decision, and (3) the

adverse decision was causally related to

immediate surgery, the record indicates

that Conoshenti met with Dr. Edward A.

Somma. Dr. Somma completed a doctor’s

note stating that Conoshenti would only

require fourteen days of bed rest and

medication and that he could return to

work on December 20, 1999. App. at

233a-34a.
13

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

whether the summary judgment record

reflects a material dispute of fact as to

whether there was a causal connection

between the two.

PSE&G insists that Conoshenti was

 

9The circuits have taken diverging paths

in analyzing claims that an employee has

been discharged in retaliation for having

taken an FMLA leave. Compare Arban v.

West Publish. Corp., 345 F.3d 390, 401

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

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

Diffee Ford-Lincoln-Mercury, Inc., 298

F.3d 955, 960 (10th Cir. 2002) (same),

with Strickland v. Water Works & Sewer

Bd., 239 F.3d 1199, 1206 (11th Cir. 2001)

(holding that such claims arise from §

2615(a)(1) and (2), as well as 9 C.F.R. §

825.220(c)), and King v. Preferred

Technical Group, 166 F.3d 887, 891 (7th

Cir. 1999) (same), and Hodgens v.

General Dynamics Corp., 144 F.3d 151,

159-60 (1st Cir. 1998) (same). All courts

that have considered such situations have

concluded that such discharges violate the

FMLA. Some have done so without

addressing the fact that retaliation for

taking an FMLA leave does not come

within the literal scope of the sections of

the FMLA directed to retaliation: §

2615(a)(2), making it unlawful to retaliate

“against any individual for opposing any

practice made unlawful by the [FMLA],”

and § 2615(b), making it unlawful to

retaliate against any individual for

participating in any inquiry or proceeding

related to the FMLA. See Bachelder v.

Amecica West Airlines, Inc., 259 F.3d

1112, 1124 (9th Cir. 2001).

The Ninth Circuit, we believe

appropriately, has predicated liability in

such situations on § 825.220(c) of the

regulations (quoted above), which is found

in a section implementing § 2615(a) of the

statute that, as we have noted, makes it

unlawful to interfere with, restrain or deny

any FMLA right. See Bachelder, 259 F.3d

at 1124. In Bachelder, the Ninth Circuit

Court of Appeals rejected a challenge to

the validity of that regulation. It did so by

pointing out that § 2615(a) was patterned

on § 8(a)(1) of the National Labor

Relations Act (“NLRA”), 29 U.S.C. §

158(a)(1), which prohibits interference

with rights created by that Act. Citing

NLRA cases, the Court reasoned that the

DOL was reasonable in concluding that

employers utilizing the taking of FMLA

leave as a negative element in employment

decisions would inevitably chill employees

in the exercise of those rights. 259 F.3d at

1123-24. As we have noted, there is no

challenge here to the validity of §

825.220(c).

Even though 29 C.F.R. §

825.220(c) ap pears to be a n

implementation of the “interference”

provisions of the FMLA, its text

unambiguously speaks in terms of

“discrimination” and “retaliation,” and we

shall, of course, apply it in a manner

consistent with that text. 
14

discharged because he violated the LCA.

In support of his claim that his FMLA

leave was responsible for that decision,

Conoshenti points primarily to three

documents: (1) the April 17th termination

letter which assigned as the reason for the

discharge all 92 days of his absence from

work; (2) the draft termination letter dated

December 20th stating that Conoshenti

would be terminated because of his

absence from work from December 6th to

December 16th; and (3) Wasser’s

December 27th note indicating that

Conoshenti would be discharged upon his

return to work.

The District Court concluded, and

PSE&G does not contest, that these

documents were sufficient “direct

evidence” of Conoshenti’s FMLA leave

having been a factor in the discharge

decision to give Conoshenti the benefit of

the Supreme Court’s decision in Price

Waterhouse v. Hopkins, 490 U.S. 228

(1989). See Walden v. Georgia Pacific

Corp., 126 F.3d 506 (3d Cir. 1997);

Woodson v. Scott Paper, 109 F.3d 913 (3d

Cir. 1997) (both recognizing that Price

Waterhouse may properly be applied in a

retaliation case when there is “direct

evidence” of retaliatory animus). Under

the Price Waterhouse framework, when an

FMLA plaintiff “alleging unlawful

termination presents ‘direct evidence’ that

his [FMLA leave] was a substantial factor

in the decision to fire him, the burden of

persuasion on the issue of causation shifts,

and the employer must prove that it would

have fired the plaintiff even if it had not

considered [the FMLA leave].” Fakete,

308 F.3d at 338 (applying the “direct

evidence” analysis to a claim under the

Age Discrimination in Employment Act).10

 

10We noted in Fakete that:

“Direct evidence” means

evidence sufficient to allow

the jury to find that “the

‘decision makers placed

substantial negative reliance

on [the protected activity] in

reaching their decision”’ to

fire him. Connors v.

Chrysler Fin. Corp., 160

F.3d 971, 976 (3d Cir. 1998)

(quoting Price Waterhouse,

490 U.S. at 277, 109 S. Ct.

1775); see also Anderson v.

Consol. Rail Corp., 297

F.3d 242, 248 (3d Cir. 2002)

(same). 

308 F.3d at 338-39.

Because there is such direct

evidence here and Price Waterhouse

accordingly places the burden of showing

the absence of but-for cause on the

employer, we have no occasion to consider

whether the reference in 29 C.F.R. §

825.220(c) (emphasis added) to “a

negative factor” makes it unnecessary for

the plaintiff to prove but-for causation in

FMLA retaliatory-discharge cases

unaffected by Price Waterhouse. See

Bachelder, 259 F.3d at 1124 (holding that

to prevail on a claim under § 825.220(c), a

plaintiff “need only prove by a

preponderance of the evidence that her

taking of FM LA-protected leave

constituted a negative factor in the
15

Justice O’Connor explained that this

burden requires the employer: 

To convince the trier of fact that it is

more likely than not that the decision

would have been the same absent

consideration of the illegitimate

factor. The employer need not

isolate the sole cause for the

decision; rather it must demonstrate

that with the illegitimate factor

removed from the calculus, sufficient

business reasons would have induced

it to take the same employment

action. This evidentiary scheme

essentially requires the employer to

place the employee in the same

position he or she would have

occupied absent discrimination.

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

The District Court held that “there [was]

no genuine issue of material fact regarding

the proposition that [PSE&G] would have

discharged [Conoshenti] for reasons not

related to the FMLA leave.” App. at 15-

16. We agree.

Even when viewed in a light most

favorable to Conoshenti, the record clearly

indicates that Conoshenti would have been

discharged absent any consideration of his

twelve weeks of FMLA-protected leave.

Conoshenti himself conceded to the

District Court, as well as in his brief on

appeal, that any violation of the LCA

“would be deemed automatic just cause

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

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

there is no question that Conoshenti

exceeded his twelve weeks of protected

leave and, under the LCA, he was subject

to immediate discharge on the very first

workday that he was both absent from

work and no longer protected by the

FMLA.

Ironically, the evidence that Conoshenti

relies upon, while permitting an inference

that his absence from work during the

twelve weeks following December 6th was

a substantial factor in the decision to

discharge him on April 17th, also

demonstrates that he would have been

discharged on April 17th had that prior

absence not occurred. The December

20th draft termination letter, the Wasser

December 27th note, and the fact that the

draft termination letter was not sent

demonstrate that PSE&G was determined

both to respect Conoshenti’s right to

FMLA leave and to discharge him under

the LCA as soon as it could legally do so.

While the reference to 92 days in the April

17th termination letter might, in isolation,

support an inference that the protected

leave was considered in connection with

the discharge decision, it would not

support a finding that Conoshenti would

not have been discharged on April 17th in

the absence of having taken 12 weeks of

protected leave.

decision to terminate her”). 

 

11We have previously recognized that

Justice O’Connor’s concurring opinion in

Price Waterhouse represents the Supreme

Court’s holding in that case. See Anderson

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

(3d Cir. 2002). 
16

Because a rational trier of fact could not

find in Conoshenti’s favor, summary

judgment in favor of PSE&G on this claim

was appropriate.12

B. The New Jersey Pierce Claim

In Pierce v. Ortho Pharmaceutical

Corp., 417 A.2d 505, 512 (N.J. 1980), the

New Jersey Supreme Court recognized

that an at-will employee “has a cause of

action for wrongful discharge when the

discharge is contrary to a clear mandate of

public policy.” An employee can prove

such a wrongful discharge claim by

“show[ing] that the retaliation is based on

the employee’s exercise of certain

established rights, violating a clear

mandate of public policy.” MacDougall v.

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

“The sources of public policy include

legislation; administrative rules,

regulations or decisions; and judicial

decisions.” Pierce, 417 A.2d at 512.

Furthermore, the New Jersey Supreme

Court has recognized that “federal law and

policy can constitute New Jersey’s clear

mandate of public policy.” D’Agostino v.

Johnson & Johnson, Inc., 628 A.2d 305,

312 (N.J. 1993). Whether a plaintiff has

established the existence of such a public

policy is an issue of law. Mehlman v.

Mobil Oil Corp., 707 A.2d 1000, 1012

(N.J. 1998). “A salutary limiting principle

is that the offensive activity must pose a

threat of public harm, not merely private

harm or harm only to the aggrieved

employee.” Id. at 1013. The public policy

must also be “clearly identified and firmly

grounded . . . . A vague, controversial,

unsettled, and otherwise problematic

public policy does not constitute a clear

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

“[U]nless an employee at will identifies a

specific expression of public policy, he

may be discharged with or without cause.”

Pierce, 417 A.2d at 512. 

Conoshenti contends that he is entitled

to recover under Pierce because he was

discharged in violation of a clear public

policy established by the FMLA,

13 i.e., a

 

12Conoshenti asserted an additional

FMLA claim in the District Court based on

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

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

employee’s rights would include . . .

manipulation by a covered employer to

avoid responsibilities under FMLA.” His

theory was that PSE&G’s alleged

assurances that he should take as long as

necessary to recover constituted

“manipulation” under § 825.220(b). While

Conoshenti’s briefing before us refers to

those assurances in support of his failure

to advise claim, it does not assign as error

the District Court’s rejection of his

“manipulation” claim. Accordingly, we

have no occasion to address the viability of

such a claim.

 

13At least one New Jersey court has

expressly held that the FMLA establishes

a clear mandate of public policy sufficient

to support a Pierce claim. See Hampton v.

Armand Corp., 834 A.2d 1077, 1081 (N.J.

Super. Ct. App. Div. 2003) (holding that a

Pierce claim may rely on the FMLA as a

source of public policy, but only if the
17

policy of ensuring the job security of

employees who have serious health

conditions that require temporary leave. If

the record would support a finding that

Conoshenti was discharged because he

took FMLA leave, this might be a viable

theory, although it is not clear to us that a

Pierce claim in that event would be of any

additional benefit to him. As we have

held, however, the record will not support

a finding that Conoshenti was discharged

in retaliation for taking his FMLA leave. 

We also conclude that Conoshenti

would not have a meritorious Pierce claim

based on the FMLA even if he were able

to show that the failure to advise him of

his FMLA rights caused him prejudice.

The Pierce doctrine is about wrongful

discharges, and it has only been applied

where the discharge itself offended a clear

public policy. Thus, all cases in which it

has been successfully advanced have

involved situations in which the discharge

was in retaliation for conduct supported by

the policy or for the employee’s exercise

of some established right. As the Supreme

Court of New Jersey explained in

MacDougall v. Weichert, 677 A.2d 162,

168 (N.J. 1996) (citations omitted):

In most cases of wrongful discharge,

the employee must show retaliation

that directly relates to an employee’s

resistance to or disclosure of an

employer’s illicit conduct. In some

cases, however, the employee may

show that the retaliation is based on

the employee’s exercise of certain

established rights, violating a clear

mandate of public policy.

Conoshenti was discharged for violating

the LCA and the conduct constituting that

violation, and that discharge, accordingly,

was unrelated to his having taken FMLA

leave. As a result, we predict that the New

Jersey Supreme Court would hold that

Conoshenti’s discharge did not give rise to

a Pierce claim even if it was preceded by

a failure to provide advice required by the

FMLA. The District Court’s summary

judgment on Conoshenti’s Pierce claim

will, accordingly, stand.

C. The NJLAD Claim

The NJLAD prohibits “any unlawful

discrimination against any person because

such person is or has been at any time

disabled or any unlawful employment

practice against such person, unless the

nature and extent of the disability

reasonably precludes the performance of

the particular employment.” N.J. Stat.

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

Administrative Code requires that an

“employer must make a reasonable

accommodation to the limitations of an

employee or applicant who is a person

with a disability, unless the employer can

demonstrate that the accommodation

plaintiff is an “eligible employee” under

the FMLA).

Conoshenti also asserts before us a

Pierce claim based on the NJLAD. He

expressly advised the District Court,

however, that his Pierce claim was based

solely on the FMLA and not on the

NJLAD. Accordingly, any Pierce claim

based on the NJLAD has been waived.
18

would impose an undue hardship.” N.J.

Admin. Cod tit. 13, § 13-2.5. This duty to

accommodate, however, is subject to “an

exception . . . where it can reasonably be

determined that an . . . employee, as a

result of the individual disability, cannot

presently perform the job even with

reasonable accommodation.” N.J. Admin.

Code tit. 13, § 13-2.8(a). 

Conoshenti claims that PSE&G violated

his rights under NJLAD by denying him a

reasonable accommodation. “Generally, a

prima facie case of failure to

accommodate requires proof that (1) the

plaintiff had a LAD handicap; (2) was

qualified to perform the essential functions

o f the job, with or withou t

accommodation; and (3) suffered an

adverse employment action because of the

handicap.” Bosshard v. Hackensack

University Medical Center, 783 A.2d 731,

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

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

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

1998)). 

The District Court first correctly ruled

that Conoshenti’s temporary disability

constituted a handicap under NJLAD. See

Soules v. Mount Holiness Mem. Park, 808

A.2d 863, 865-66 (N.J. Super. Ct. App.

Div. 2002) (holding that a “temporary

inability to work while recuperating from

surgery or injury is a handicap” under

NJLAD); see also Viscik v. Fowler Equip.

Co., 800 A.2d 826, 835 (N.J. 2002) (noting

that “[t]he term ‘handicapped’ in LAD is

not restricted to ‘severe’ or ‘immutable’

disabilities and has been interpreted as

significantly broader than the analogous

provision of the Americans with

Disabilities Act (ADA)”). 

As to the second element, however, the

District Court found that, as of the end of

his FMLA-protected leave, Conoshenti

was unable to perform any of the functions

of his job. Accordingly, the District Court

concluded that the only reasonable

accommodation that would protect his

employment status as of that date would

have been a leave of absence. While

noting the existence of federal cases

recognizing a leave of absence as a

“reasonable accommodation” under the

ADA, the District Court nevertheless held

that a leave of absence was not a

reasonable accommodation under the

NJLAD. It did not err in so holding. 

As we have noted, the New Jersey

Administrative Code provides an

exception to an employer’s obligation to

provide a reasonable accommodation

“where it can reasonably be determined

that an applicant or employee, as a result

of the individual’s disability, cannot

presently perform the job even with

reasonable accommodation.” N.J. Admin.

Code tit. 13, § 13-2.8(a) (emphasis added).

This provision of the New Jersey

regulation reflects a significant difference

between the ADA and NJLAD. While the

ADA applies to employees “who, with or

without reasonable accommodation, can

perform the essential functions of the

employment position that such individual

holds or desires,” 42 U.S.C. § 12111(8)

(emphasis added); see also 29 C.F.R. §

1630.2(m), NJLAD protects only an

employee who can presently perform the
19

essential functions of his job with or

without the reasonable accommodation.

The NJLAD regulation thus requires that

the handicapped employee be able to

perform the essential functions of his job

during the application of the reasonable

accommodation – that is, at the same time

that the reasonable accommodation is

being implemented. The ADA, however,

does not contain any such temporal

requirement. Accordingly, the federal

courts that have permitted a leave of

absence as a reasonable accommodation

under the ADA have reasoned, explicitly

or implicitly, that applying such a

reasonable accommodation at the present

time would enable the employee to

perform his essential job functions in the

near future. See, e.g., Criado v. IBM

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

(“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

would have excused Conoshenti from

present performance contrary to the

explicit requirements of the NJLAD

regulation. We are confident that the New

Jersey Supreme Court would not sanction

such a conflict. We will therefore affirm

the District Court’s grant of summary

judgment in favor of PSE&G on

Con oshenti’s NJL A D f ailure-to -

accommodate claim.

V. Conclusion

The judgment of the District Court will

be reversed insofar as it granted summary

judgment to PSE&G on Conoshenti’s

FMLA failure to advise claim. It will be

affirmed in all other respects. This matter

will be remanded to the District Court for

further proceedings consistent with this

opinion.