2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

4-13-2004 

# C ono she n t i v

. Pub S e r E lec & G a s

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-2257

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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IN THE UNITED STATES COURT

OF APPEALS FO R T HE TH IRD CIR CU IT

NO. 03-2257

RICHARD CONOSHEN TI

Appellant

v.

PUBLI C SERVI CE ELECTRI C & GAS COMPANY

On A ppeal From the Un ited States

District Cou rt Fo r th e D ist ric t o f N ew Je rse y (D.C. Civi l Action No. 01-cv-04611) Dis trict Ju dge : Ho n. Jo sep h A

. Green away, Jr.

Argued January

26, 2004
BEFORE: NYGAARD, FUENTES and ST AP LE TO N, Circuit Judges
(Opinion Filed: Ap ril 13, 2004)

Gerald J. Resnick (Argued) An drea R achie le Deutsch & Resnick One Universit

y Pl aza - Suit e 305 Hackensack, NJ 07601 Attorney s for Appell ant

Patri ck Westerkamp (Argued) Public Ser

vice Elec tri c & Gas Company 80 Park Plaza – T5E Newark, NJ 07101-0570 Attorney

for Appelle e

OPINI ON OF THE COURT

ST AP LE TO N, Circuit

Judge : Appellant

Richard Conoshent i all eges that his employ

ment with Publ ic Servi ce Elec tric and Gas Company (“PSE&G”)

was termin ated in violatio n of the F amil y and Medical Leave Act of 199 3, 29 U. S. C. § 2601 et seq. , (“FMLA”), New Jersey pub li c policy under Pierce v. Ortho Pharmaceutical

Corp. , 84 N.J. 58, 72, 417 A.2d 505, 512 (N .J. 1980), and t he New Jersey L a w A gainst Discriminati on, N.J. Stat. Ann . § 10:5-1 etseq. , (“NJLA D”). The Distri ct Cou rt granted sum mary judgmentin fa vor o f PSE&G on all of Co nosh enti’s cla ims. W e w ill reverse the Distri ctCour t’s judg men t with re spec t to Con oshenti’s FML A claim and remand for further proc eedin gs. W e w ill a f fi rm, how ever, the D istrict Co urt’ s judgment with respect to Conoshenti’s Pierce and NJ LA D c laim s. I. Facts and P rocedura l History
Richard Conoshenti was employed as a FirstGrade Mechanic with PSE&G since2

1972. In Apr i l an d Ma y19 99 , PS E&G accusedhim of keeping inac cur at e t ime records an d leavi ng his shi ft ear ly to take

a shower. Conoshent i denie d k e eping inacc urate rec or ds, cl aiming t hat he was

mere lyengaged in the a cceptedpracti ce of correcting times th at we re inap prop riately recorded. As for l ea vi ng hi s s hi ft e ar ly, Co nosh enti claim ed that he had been working with chemical s that irr itat ed his sk in, and that

a shower was necessar y

. Ne verthe le s s, on May

21 , 19 99 , PS E&G made a dec ision to disch arge h im for these vio latio ns o f co mp any p olicy. Upon the advi ce of Conoshenti ’s union, and because he was wil ling t o accept bl ame to kee p h is j ob, 1 he agreed t o enter into a Last Chance Agreemen t (“ LC A”). Under th e LC A, PSE &G a gr eed that C ono shen ti wo uld be reins tate d , conditi oned upon his sat isfact or y performance of each of the o bligations outlined in a le tter

dated August 10, 1999. These obligation s include d: taking and passinga phy sicalexaminati on, repor ting to wor k ev ery

day and on time, maintai ning s a tis f a cto ry wor k performance, and maintaining a cl ean safety record . Con oshe nti underst ood that if he were t o v iolate any of these requ i rements, such viol ation woul d

au to matic ally cons titute just ca use for his immediate discharge. From August 10 , 1999, t he date he entere d into t he L C A, to December 3, 1999, Co nosh enti pe rform ed ea ch of his obligat ions and was n ot warned , repri manded, or fir ed fo r a ny i mproper cond uct. On Dece mber 4 , 1999, how ever, wh ile outsi de the s cop e of hi s emp loymen t, Conoshenti was st ruckby an autom obile and susta ined a serious in jury that requ ired ho spitaliza tion. Sh ortly therea fter , on December 6, 199 9 , Co nosh enti informed his bo ss at PS E&G of his acc ident a nd th e seriou sness of h is injuries. He also i nformed his bos s that his physi cianhad indic atedthat he wo uld need to be out of

work for at le ast tw o w eeks in orderto recover. 2 PSE&G did not notify Co nosh enti at that time, or a t any ti me thereafter, of h is rights underth e FMLA

. 3

1 Conoshenti continues to dis pute, how ever, the truth of th e PSE &G ’s charges. 2 Additional ly , the record indicat es that

on Dec em be r 8 , 19 99 , PS E&G recei ved a
n ote from C onoshe nti’s physician, Dr. Edw ard A

. Somma, dated December 6th, indicating that Conoshenti would requi re fourtee n day s of bedrest and medicati on and tha t he c ould ret urn to work on December 20, 1999. App. at 233a-34a.

3 Du rin g proceedi ngs in the Distr ict Co urt, PSE &G had c laime d that it informedCo nos henti of his ri ghts under the FML A by let

ter dat ed Decembe r 15, 1999. Con oshenti claime d neve r t o ha ve
re c eivedthat l ette r. At or al argument on the parti es’ cr oss-moti ons fo r summ ary judg men t, how ever, PSE&G accepted, for purpos es o f summary j udgment, t hat no notice had been sent

to Conoshention December 15, 1999 or at any ot her ti me. PS E&G also stipulated for purpose s of this3

In parti cular, Conoshenti was not tol d that he wa s entitled , unde r the F M LA , to twe lve weeks of protected leave. He w a s also not to ld that

the le ave he was using

wo uld be c ons ider ed F M LA leav e. On December 16, 19 99, C ono shen ti met with an orthop edic surgeo n, Dr. Alexander P. Russoniel lo, who dia gno sed h im w ith torn rotat or cuffs and rec ommended imm ediate su rg er y. T he su rg er y w a s schedu led for earl y Januar y 2000. Co nosh enti no t i fi edPS E&G of h is plan to undergo the sur gery

an d was told t o take ti me to recuperate. On December 17th, he sentPSE&G a form complete d by Dr. Russon ie llo that ind icated his diag nosis and th at he w ould be un able to wo rk un til app rox ima tely A pril 2 000

. Therea fter, on o r about De cemb er 20, 1999, PSE&G began admini st rati ve steps to end Conoshenti’ s employment for vi olating the LCA. These steps includ e d the preparation of a Recommendation f or Disciplinary Action, which recommended that Conoshenti be discharged because he “was unavail able for

work on 12/6/99 and th e following 9 work day s, a vi olati on of hi s ‘Last Chance Agreement .’” App. at 236a. The recommendationwas approved by severalPSE&G officer s on Decembe r 20th, bu t no ac t i on was t ak en

. PS E&G also drafte d a termi nation l ette r, dat e d December 20th, that cited Co noshen ti’s absence on December 6th and the subsequen t ten days as th e reaso n fo r his dis charg e. App . at 237a. Th is letter, how ever, was not signe d and w as never sent. Meanwhile, Conosh enti had becom e
concerne d about his job security and therefore conta cted h is union to determine what he needed to do to prot ect hi mself. The union adv i se d h i m t o n ot i fy PS E&G that he desir ed to have his l eave counted a s FMLA leave. Following t his advi c e, Co nosh enti, on December 27, 19 99, se nt a letterto his di re ct

supe rv is orat

PSE &G, Bob Wasser, st ating:
I would like to requestan im med iate leave under th e Family

and Medical Le ave Ac t. I am re ques ting this leave due t o the fact

that Iwas in an accident on Dec embe r 4, 1999. I f I

can provide any

other informati on or doctor notif i cati on I woul d apprec iate con tact fro m th e
co m pa ny. App. at73a. That same day , Wasser made the fol lowing handwrit

ten notation:
Co nosh enti call ed and stat ed that he wanted a “fa m ily

medical l eave.” I

re spon ded by saying tha t I wo uld

resear ch it for

him a nd ca ll him back. [I] called J. Tiberi 4 and discus sed. Initially the disc h arge was to be executed t

hrough the mail, effective appe al t hat “a l ette r dated December 15, 1999 ( 2 38a - 240a) was nei ther s ent by PSE &G, nor received byM r. Con oshe nti. (35 8a - 359 a).” App ellee’s Br. at 6 n .4. 4 J. Ti be riwas t he si gn at oryfo r P SE&G on t he LCA.4

1-01

- 00[ .] [W]hen I mentioned “fam ilyleave ” Tib eri said h e w ould call [reda cted]. T iberi pa ged me 1⁄2 hour later

. I call ed and was informed byTiberi that we must hold off on the di sc ha rg e, be caus e: He is entitled to bene fits w hil e he is o n d isa bi lity. I t is against the law to di schar g e underthese c ond itions. T iberi said that he w il l be dis charg ed up on h is retu rn to wo rk 1 st da y bac k. App. at 246a. Conoshenti t hen underwent surg ery for h is torn ro tator cu ff in e arly January 2000. T hereafter, Co noshen ti’s doctors perio dic ally

updated PSE&G on his cond it ion. Conoshenti cl aimed that throughout

his re cove ry, he was told by

severa l d if

fe re ntpe opl e a t P SE&G, i ncludingWa sser, to tak e his ti m e recovering and to no t hurr y back unti l he

was “100%.” App. at 294a, 295a. Co nosh enti also cla imed that h e was
assu red that “ light

duty ” would be availa ble to him when he w as abl e to retu rn to wo rk. A pp. a t 29 5a.
On M arch 28, 2 000 , Dr. R usso niello auth orized

Con oshenti to return to w ork for“d esk d uty ” as of April3, 2000, and Co nosh enti, in turn, notif ied P SE &G of h is ability t o r et

urn t o wo rk

. PS E&G informedhim, h ow ever, th at th e f acility wh ere he wo rked could not acco mm odate desk duty

and that his return to w ork

w ould have to be del ayed until hi s do cto r
c lea red him for f

ull active man ual labor. In April 2000, Conoshenti’s d octor authori zed his retu rn to u nrestr icte d wo rk du ty. On April 12, 2000, Co nosh enti took and passed a phy sicalex am inati on requir ed by PSE& G. It was Con oshenti’s underst anding that p a ssing t he phys ical examinati on wa s the o nly conditi on placed

on his re turn ing to w ork

. Also on A pril 12, 199 9, PS E & G re initiate d ad m inis trative steps to end C onoshe nti’s employment

for viol ation of

th e LC A. On Ap ril 17, 1999, Conoshenti repor ted for work. Afterone hour on the job, how ever, he wa s called into his supervi sor’s office and told he was being terminated for violation of th e L CA

. Th e termi nation letter stated , in part:
On December 6, 1999, you w er e unab le to repo r t to w ork a s a resu lt of being invo lved in a mo tor veh icle accid ent. Su bs eq ue nt ly, y ou w ere
ou t o f work for 92 day s, a vi olati on of the te r ms and condit ions of y our “Last Chance A greement.” As a result of your

failure to com ply with th e terms and c ond itions o f this agree men t, your em ployme nt w ith Pub lic Service El ectri c and Gas Company is bei ng terminat ed Ap ril 17, 2000. Ap p. at 2 69a

. Itis undisputed that Con oshenti’s abse nce from work exceeded the t welve weeks of leave t

hat are pr otect ed by t

he FMLA. If Conoshenti ’s prot ected l eave
were consi de red to have begun on December 6, 1999, t

he twelve week period

wo uld have expir ed on March 1, 2000. E ven i f the twelv e wee k period w ere consider ed to hav e be gunon De cemb er27, 1999, the pro tected perio d w ould have exp ired on M arch 19, 2 000

.5

Afterhis di scharge, Conoshenti and his union file d a grievance and the ca se was arbit rated pursuant to th e LC A. Although the arbit rator noted that the LCA was very stringentand pos sibly ev en “ dra con ian,” he nevertheless found that Conoshenti had violated its terms and t

herefore de nied the grie van ce. Co nosh enti then fi led a complaint againstPS E&G i n the Superi or Court of New Jersey , Union County . Counts One and Two of the complaint alle ged vi olati ons of NJLAD . Count Thr e e al leged that Conoshent i had bee n
wro ngf ully di sch arged in vi olati on of pub lic policy under Pie rce v. O rt ho Pharmaceutical

Corp. , 84 N.J. 58, 72, 417 A.2d 505 , 512 (N.J. 1980). Count Four al le ge d vi ol at io ns of

th e FMLA

. PS E&G removed the case to the U nited St ates Distri ctCou rt f

or the Dis tri ct of New Jers ey. Co nosh enti an d PS E&G f ile d crossmotions for su mm ary ju dg ment. The Distri ctCourt grant ed summary j udgment in favo r o f P SE&G on all of C onoshe nti’s claims. Th is t im ely n o tice of appeal followed. 5 II. Discussi on Co nosh enti argues t

hat the Distri ct C ourt erred in gran ting P SE &G ’s mo ti o n f or summary j udgment and deny ing h i s
own motion for s um mary j ud gm en t

. We

re vie w the Dist

rict Court’s grant of

s umm ary judg men t de novo

. America n MedicalImagingCorp. v. St. Paul Fire & Marine Ins . Co. , 949 F.2d 690, 692 (3d Cir.1991 ). Sum mary jud gm ent i s appro priate if the re are no ge nuine is sues of materi al fact

present ed and the moving party is ent itl ed to judgment as a matt er of law. Fed. R. C iv. P. 56 (c); Celotex Corp.

v. Ca trett , 4 77 U

. S. 317, 322 -23 (198 6); Wisn ie wski v. Johns-

Manville Corp. , 812 F.2d 81, 83 (3d Cir. 198 7). In determi ning whethera genuine i ssue of fa ct ex is ts , w e
reso lve al l f

ac tu al dou

bt s and draw a l l

reaso nable infe re nces in favor of the nonmoving par ty. Su d ers v. Easton , 325 F.3d 4 32, 435 n .2 (3d Cir. 200 3). “Although the initialburden is on the

sum ma ry j udgment movant to s how the absence of a genuine i ssue of material fact, ‘the burden on th e moving party may be discharged by ‘‘showing ’’ – that is, pointing out to the district court – th at there is an absence of evi dence to suppo rt the nonmoving pa rty ’s case ’ when the

non mo vin g pa rty

bears t he ultimate burden of proof.” Singlet

ary v . P enns ylvan ia De pt. of Corrections , 266 F.3d 186, 192 n.2 (3 d Ci r. 2001) (quot ing Celotex , 477 5 The Distri ct Court ha d juri sdict ion under28 U .S.C . § 1331 (2001) becaus e the

c ase involved a

federalquesti on, and removal was proper under 28 U.S. C. § 1441(b) (2001). The Distri ct Cou rt had supp le m entaljuri sdict ion over t he New Jersey stat e law clai ms under 28 U. S.C . § 1367 (200 1). W e hav e juris dict ion over thi s appeal pur suant t o 28 U.S.C. § 129 1 (2001) because the District Court’s or der granting summary

j ud gme nt

t o P SE&G on all c laims was a final deci sion.6

U.S. at 325 ).
A. Family

and Medical Leave ActCla ims
The stat ed purpose s of the FM LA are to

“ bala nce the demands of t he workplace with the ne eds of

fam ilies” an d “to e ntitle employe es to take r easonable leave for medical reas ons .” 29 U.S.C. § 2601(b) (1) and (2). Th e FM LA seeks to accom plish these purposes “in a m anne r that accommodates the leg it im ate i nteres ts of

em plo yers.” 29 U.S.C. § 2601( b)( 3). In further ance of

these objectives, the FMLA requir es that “ an el igibl e employ ee shallbe entitledto a tota l of twel ve workweeks of leave durin g any tw elv e m onth period ” if the employee has a “ seriou s hea lth conditi on that makes the employe e unab le to perform the funct ions of t he posit ion of such emp lo yee. ” 29 U.S .C. § 2612(a )(1)(D). 6 Aft er an el igibl e employe e returns f ro m an FM LA leave, the emp loyee is entitled to be rein stated to his or herformer posi tion, or an equiva lent

one. 29 U .S.C . § 26 14( a)(1 ). This right to reins tate ment is qu alif ied by a statutory directive that it does not entitle a re store d

e mployee to a ri ght, be nefit or position t o which the employ ee would not “have been entitledhad the em ploy ee not t aken the leav e.” 29 U.S.C. § 2614(a)(3)(B). Thus, forexample, i f an employ ee is di scharged during or at the e nd of a prote cted l eave fora reasonunre lated to the lea ve, the re is

no rig ht t o rei nst ateme nt. 29 C.F. R. § 825.216 (a)(1).
In order t o protect

these s ubstant ive rights, the FMLA proscribes an empl oyer from engaging i n c ertain acts

. See 29 U.S .C. § 26 15. Section2615(a)( 1) makes it“unlaw ful for a ny e mployer to interfere with, restrain, or deny

the exer cise of or the atte mpt to exer cise, anyright provided unde r this subchapter. ” Secti on 2615(a)( 2) makes it “unla wf

ul for a ny emp loyer to 6 “Th e term ‘e ligible employ ee’ means

an employe e who has been employ ed – (i) for at least

12 months bythe employ er with respect to whom leave is request ed undersection 261 2 of

this title; and (ii ) for atleast 1,250 ho urs of serv ic e with such

em pl oye r d uring the pre viou s 12-m onth per iod .” 29 U.S. C. § 2611(2)(A). “The term ‘seri ou s health conditi on’ means an illness, injur

y, impairment , or phy sicalor mental c on di ti on t

ha t invo lv es – ( A) inpati entcare i n a hospit al, hospice, or resi dentia l medical car e fa ci li ty ; o r ( B) continuing treatmen t by a health care pro vid er.” 29 U .S .C. § 2611(11) . When

an eligible employ ee need s t o take FMLA leave that was not fores eeable, “[t]he employe e need not ex pressly ass ert rights underthe FM LA or e ven mention t he FML A”; rather

the employ ee n eed only

n oti fythe employ er that leave i s needed. 29 C .F.R . § 82 5.30 3(b ). In this case, there i s no disput e that Co nosh enti was an eligible employ ee o r that his injury qualif

ied as a s erious health conditi on. Mo reover, as the D istrict Court noted, it i s undisput ed tha t C ono shen ti fulfi lled his du ty to noti fy under the FMLA by i nforming PSE&G of his injury and need for t ime off within two days of his a ccid ent.7

discharge or in any ot her manner discrim inate ag ain st a ny i ndi vidual f or
o pposing any pr acti ce made unlawful by this subchapter .” Fina lly , § 2615(b) provides t hat “[i]t

shallbe unlawful for anyperson t o discharge or in any o ther

manner discr imina te against anyindivi dual because such indivi dual – (1) has fil ed any charge, or has instituted or c aused to be inst itut ed anyproceedi ng, under or relat ed to this subchap ter; (2 ) has given , or is abou t to give , any info rmatio n in connecti on with any inquiry or proceeding relating to an y r ight pro vided und er this subcha pter; or (3) ha s testifie d, or is a bout to test ify , in any i nq ui ry or proceeding relating to any

right provide d u nder this subchap ter.” The FMLA g rants employe es
a cause of action aga inst employe rs who vio late § 261 5. See 29 U .S.C . § 26 17.
In addi ti on, t

he Unit ed St a tes Departmentof Labor (“DOL”) has promulgate d regulation s im plementi ng the FMLA, as authorized by 29 U.S.C. § 2654. O f parti cular s ign ifica nce her e, § 825.220(c) of those regulations provides:
An employer is pro h ibit ed from discr iminat ing again st emp lo ye es or prospect ive employe es who h ave used FM LA leave . For e xam ple, if

an emp loy ee on leave wit hout pay

wo uld otherwise be entitled to full bene fits (othe r than health b enefits), the same benefit s would be r equired to be p rovided t o an employ ee on unp aid F MLA le ave . By th e s ame token, emp lo ye rs cannot use the takingof FMLA leave a s a negati ve factor in employment

acti ons, suc h as hiri ng, promotions o r disciplinary actions; no r can F ML A leave be

c ountedunder “no faul t” attendan c e policies.
29 C.F.R. § 8 25.220(c ). The D OL ’s regulations also pr ovide that “[a] ny violations of

t he [F ML A] or of these

re gu lati ons consti tute interfe ring wit h, restr aini ng, or deny ing the e xercis e of rights provided by

the Act .” 29 C.F .R. § 825.220 (b). “‘Interfering w it h ’ the exercise o f a n em ployee’s rights w ould incl ud e, for ex amp le, not o nly refus ing to aut horize FML A leave, but discour aging

an employe e fr om u sing such lea ve. It

wo uld also i nclude man i pu lat io n b y a coveredemploye r to avoi d responsibili ties underFM LA .” 29 C.F .R. § 825 .220(b). Mo reover, “[e]mployees c annot waive, nor may empl oy er s i ndu ce e mp lo yees to waive, their

right s under FMLA.” 29 C.F.R. § 8 25.220(d ).
Fi na lly, the DOL ’s reg ulations impose upon the e mployer obligati ons t o
com mu nicate with employ ees regarding their right s underthe FM LA . In particular, the regu lations re quire e mp loyers to provide emp loyees w ith indiv id u aliz ed notice of the irFMLA right s and obligations. Pu rsua nt to 29 C .F.R . § 825.208 (a), “[i]n a l l ci rcum stance s, it is the em ployer’s re spon sibility to desig nate le ave, pa id

orunp ai d, as FMLAqualif yi ng, and to gi ve n otice of the designation t o t he e mp loy ee . . . .” If an employe r provides em pl oyees with a handbook concerning employee benefits, “the handbo ok mu st i ncorporat e informat ion on FML A righ ts an d8

responsi bili ties and the e mployer’s policie s regarding the F M LA .” 29 C.F .R. § 82 5.301(a)(1). If the employer does n o t prov i de such a handbook, s uc h informat ion mu st b e provided when an employe e requests leav e. 29 C.F .R. § 825 .3 01(a)(2). Moreover, each time the employe e reques ts leave, the employ er
mu st, wit hi n a r eas onabl e t ime thereafter – “o ne or two busine ss day s if feas ibl e, ” “provide the employ ee with written noti ce detai ling the speci f

ic expect ations and obligations of the emp lo yee and expla ining anyco ns equences of a fai lure t o meet these obligat ions. ” 2 9 C .F .R. § 825.301 (b)(1), (c). This speci fic not ice must include , among other things , whether “the leave wil l be count ed against the employee’s annu al FMLA lea v e entit lem ent,” 29 C.F.R. § 825. 301(b) (1) (i), and “the e mp loyee’s righ t to restora tion to t he same o r equivalent job upon re turn from lea ve,” 2 9 C .F.R

. § 825. 3 01(b)(1)(vii). Ne ither pa rty in this

case has c hallen ged th e vali di ty of t hese reg ulati ons

. There are two arro ws to C onoshe nti’s FMLA bow. He insis ts that the Distri ct Cou rterredin granting summary judgment againsthim b ecau se (1) P SE &G failed to advise him of his FMLA rights and thereby interf ere d w ith his ab ility to

mea ning fully exerci se h is right to an FMLA l eave ; an d ( 2) PS E&G “use[d] the takingof FMLA leave as a negati ve factor in” its de cision to disch arge h im on Ap ril 17, 20 00

. 29 C. F. R. § 8 25

. 22 0( c)

. We will address e ach of these independent theori es of li ability

in tur n. 1. Th e Fa ilure to A dvise C laim
Co nosh enti argues that P SE& G’s failure to advise him o f his right to twelve weeks of FML A le ave, a fter he prop erly gave notice of his se rious health conditi on, consti tuted

an inter ference with hi s FMLA right to that pr otect ed leave. Had he recei ved the ad vice P SE &G wa s oblig ed to provide, Conoshenti insist s, he would ha ve been able t o make an informed deci sion aboutstruc turi ng his l eave and would have struc turedit, and h is plan o f reco very, in such a way as t o preser ve the j ob protection afforded by th e A ct

. We conclude that this is a vi able theory of recovery and that the D istrict Court

a cc ordin gly erred in granting summ ary judg men t on it ag ainst C ono shen ti.
As we have noted, the parties stipulate d in the D istrict Co urt th at, for pu rposes of

summ ary ju dgm ent, PSE& G did not advise Co nosh enti of h is ri ght s unde r t he FMLA. As we have also not ed, the regul ation underthe FMLA imposed a duty on PS E&G to do so. I t foll ows, we believe , that Conoshenti wil l show an inter ference with his ri ght to l eave under t he F MLA, with in the meaning of 2 9 U .S.C . § 2615(a )(1), if he i s able t o establ ish that this failure to adv ise ren dered him u nable to ex er cis e th at r ig ht in a m ea ni ng fu l w ay, thereby causing injur

y. Neither

PSE &G in its brief n or the D is trict Co urt in its opini on contest

the the oreti cal basi s for th is cl aim, an d w e belie ve tha t basis is

su pport ed by the rela tively spars e auth ority relevant to t

he issue

. In Ragsdale v. Wo lverine World Wide,9

Inc. , 5 35 U .S . 8 1 ( 200 2) , t he S upr eme Cou rthad be fore itthe FMLA regulations requiring an employ er to advi se employ ees of FM LA rights. It w as calle d up on to determi ne the val idit

y of a r egulat ion, 29 C.F .R. § 825.77 0(a ), 7 which imposed a pena ltyon an emp loyer w ho failed to advi se that a

leave t aken by an employ e e
wo uld co un t ag ai ns t he r FML A entitlem ent. Under this regulation, t he twelve week FM LA leave did not

commence until this advice was g iven. In Ms. Ragsdale’s case, t his woul d h ave
en titl ed her to 30 weeks of l eave, even though she c ould not sh ow that she wa s in anyway prejudice d by the emp loyer’s breach of

dut y . T he Cou rt

st ru ckdow n this penalty pr ovisi on, noting that it was “unconnec ted to any prejudi ce the employe e mig hthav e s uff er ed f ro m t he employer’s l apse” a nd , ac co rd in gl y, “incompati bl e wit h t he FMLA’ s comprehens ive remedialmec hanism ” which aff

ords no rel ief abse nt prej udice from a stat

utory violation. Rag sdale , 535 U.S. at 88- 89.
Th e R agsd ale Court expres sly noted that t he validity

of notic e requir ements of the regulations themselves was not before it. Ac cor din gly, Rag sdale is n ot dispo sit ive of an ything be fore u s. It i s helpf ul, how ever, because the Court found “reasonabl e” Rag sdale’ s sug gestion that a failure t o a dv i s e o f F ML A ri ghts c ould

cons titute an inte rf

er en ce wi th “an employee’s exerci se of

bas ic FMLA rights in viol ation of

§ 2615”:
Section 825 .7 00( a) , Ra gsdal e contends, reflects t

he Secretary’s

un d erst anding that an em ployer’s fail ure to com ply wit h th e design ation requ ireme nt migh t sometimes burden an em ployee’s

ex erc ise of b asic F M LA rights in violation of § 261 5. C onsi der, for in stance, the right unde r § 2612 (b )(1 ) to take in termitten t le ave when med ically ne ce ss ar y. An employee

w ho und ergo es can cer trea tmen ts
e very other week over

the cours e o f 12 weeks mightwant to work duri ng the o ff weeks, ear

ning a pay check and savin g six week s for later. If she is n ot infor

med that her

absence qualif ies as FML A leave – and if s he does not know of

her ri ght under the st atut e to take inter

mitt ent le ave – she m ig httake al l 1 2 of he r F MLAguarante ed weeks consecutively and ha ve n o l eav e r emaini ng f orsom e future em erg enc y. In circumst ances like these, Ragsdale ar gues, t he employer’s failure to give the noti ce requi red by t

he regulation coul d be said to “deny ,” “r est rain, ” or “interfere with” the e mployee’s exercise of her righ t to t ake inter mitt ent le ave. This posit ion may be reasonabl e, but 7 Sectio n 82 5.770 (a) pro vided , in part: If an employ ee takes paid or unp aid leave and th e employe r does notdesig nate the leav e a s FMLA leave, the leave t aken do es not countagainst

an employee’s FM LA entitlem ent.10

the more extre me one embodied in § 825.700(a) is not.

. . . [It] establ ishes

an irr ebutta

bl e p resumpti on that t

he employee’s exerci se of

FMLA rights

was impai red – and that the employ ee deserves 12 more w eeks. There is no empiric al or logica l basis forth is pr es ump tio n, as t he facts of this case w ell dem onstra te. Ra gsda le has not sh own th at

sh e wo ul d have takenless leave or

inter mitt entleave if she ha d recei ved the re quired notice

. Rag sdale , 535 U.S. at 89- 90. This porti on of the Rag sdale opinion, togethe r with our

own assess men t of the reasonabl eness of the notice reg ulati ons, per suades us t hat the Supr em e Court would fi nd an action able “inte rference ” in viol ation of § 2615(a) here in the ev ent C ono shen ti is able to show prej udi ce as a res ult of t hat violation.
The Distric t Cou rt from wh ich this appeal comes to us has p reviou sly endorse d the the ory of r ecover y Co nosh enti advances her e. In Nusbaum v. CB R ichard Ellis, Inc. , 171 F. Supp. 2d 377, 379-80 (D .N .J. 2001), aft er plaintiff Margot Nusbaum learned that she r equired back surgery , she r equested t hat her employe r allow her to take med ical leave and also r equested informati on regarding the employer’s medical l eave poli cy. The empl oyerrefused t o pr ovide thi s inform atio n

. Moreover, Nusbaum never recei ved any ma terials prov idin g informat ion on F M LA leave and th e employe r had notcom plied w ith 29 U. S. C. § 2619’s requirement that it post a not ice outli ning th e FMLA’ s i mp ortan t

provisi ons and t

he emp loyees ’ FMLA rights. He r emp loyer also failed to prospe c tively designat e her le ave as FMLA leave i n vi olati on of 29 C.F.R. §§ 825.208 and .700. Nu sbaum took the lea ve requir ed for her s urgery , and wa s discharged during her

absence. Nusbaum t hen brou ght su it, alleging that h e r employer’s fail ure to notify herof herright to twelve weeks of FML A-protect ed leave, and hersubsequent

termination, inter fered with her FMLA right s in viola tion of 26 U.S .C. § 2615 (a)(1). The D istrict Court deniedthe employ er’s mot ion to di smis s, holding as follows: [T]he purp os e of the r egulat ions enactedby the DO L . . . is to ensure that emp lo y er s a ll ow their empl oyees to make informed deci sions about leave. . . . The overa ll i nten t of the FMLA is lost

when an emp loyer fails to provide an e m ploy ee with the

o pport unity to make in forme d d ecisi ons about her leave options a n d lim itati ons. Without such an op po rtu ni ty, the em ploy ee has not recei ved the sta tutor

y benefit of takingne c essary

leave wit

h the

re as surance that he r emp loymen t, underproscribed conditions, will be waitingfor her when she is a ble t o retur n to work.
Id. at 385-86. The court conclude d t hat Nusbaum “w as, th e refore, not given t he properinformat ion that would have allowedher to structure her leave in a way that wou ld have left he r prot ected by the FM LA .” Id. a t 386 . We find th is11

reasoni ng of

the Nusbaum Cour t persuasive. The District Court i n Conoshen ti’s case accepted his claim that the regu la tio ns imposeda duty

on PSE&G to a dvise him of his FM LA rights a nd th at a fa ilure to do

so could res ult in an “int erferenc e” un der § 2615(a)( 1). I t dis tingui shed Nusbaum , how ever, on the ground that Conosh e nti had proven no prejudi ce as required by Rag sdale

. In sup port of th is conclusion, the Court fir st not ed that “his i gnorance of the nature of

his l eave ended on December 27.” Ac cord ingly, it h eld tha t Con oshenti’s reli ance on Nusbaum could only be used to de laythe commencement of hi s t we l ve weeks of FMLA -prot ected leave f ro m December 6th to December 27th; this would, in an y e vent, have left him unprotect ed by t

he F MLA before he

re turnedto work. The Court the n
o bservedthat Conoshenti had “pre sent e d

n o ev idence t

hat he coul d have made a differe nt choice had PSE &G inform ed him that hi s FMLA l eav e be ganon De cemb e r 6,” and made “only the bare assertion that he cou ld h ave ma de d iffe ren t dec ision s.” App. at 16a. We hold tha t the D ist rict Cou rt’s an aly sis is at od ds w ith w ellestabl ishedprinciples gover ning the propriety of summ ary j udgments.
The record indicat es that in Dece m ber 1999, Co nosh enti co ntacte d his u nion in orderto learn what he needed to do to protect his job during his recovery. In response to thi s inqui ry , the union advis ed Co nosh enti to inform PS E&G that he wanted his le ave to be c onsi der ed FMLA leave. The record furt her indi cates t hat Co nosh enti then sent a letter t o PSE&G on December 27, 1999 stat ing that he “w ould like to reques t an i mmediate l eave under the Fam ily and M edic al L eav e A ct.” App. at73a. Nothi ng in the record, ho w ever, indicates that Conoshenti knew that he was entitledto only

twelve weeks of protec ted leave. Rather , t he rec ord sim ply reflects what Conoshenti was told t o sayand what he did say . The summ ary judgmen t record thus does not spe ak to Cono shen ti’s knowledge of hi s r el evant FMLA rights on D ecember27th or t

hereaft er duri ng h i s leave.
Si m ila rly, th e s umm a ryjudgment

reco rd, as the D istrict Co urt cor rectly noted, contai ns no competent evidence regarding the al ternatives t hat would have been avail able t o Conoshenti had PS E&G advisedhim of his rights when he request ed leave on Dec e mb er 6th. O nly Con oshenti’s brief

contai ns a statementof what he would hav e done had he been advised of his rights. 8

8 Con oshenti insists that his recov ery
c onsis tedof two phases: the initial recovery from th e accident , and the

su bsequentrecov ery from the sh ould e r
su rg er y. If

he ha d kn own that he could not exceed twelve weeks of leave, he claims, he could have exp lored t he feasi bili ty

of postponi ng the sur gery to a subse quent FMLA peri od. The record does conta in

som e support f

or Conoshenti ’s ass erti on that he could have return ed to wo rk w ithin twelve weeks without t he shoulder

su rg er y. Prior to Co nosh enti’s v isit with the orthopedi c surgeon who recommended12

Wh ile we a gre e with the D istrict Court that these gaps in the record r equired it to denyConos he nti’s motion fo r summ ary judg men t, they clearly did not warr ant the grantof PS E&G ’s mot ion. It is w ell establ ishedthat

“a party seeking sum mary judgment alw ays bears th e initia l respo nsibility of informi ng the dis tri ct court of t he basis for it s motion, and identi fyi ng those portions o f ‘th e pleadings, deposi tions, answers t o interrogatori es, and admissi ons on fil e, togethe r with the a ffidavi ts, if any ,’ which itbelie ves demonstr ate the absence of a genuine is sue of mate rialfact. ” Celotex Corp. v. Ca trett , 477 U.S. 317, 323 (1986) (quoti ng Fed . R. C iv. P. 56 (c)). “W ith respect to an is sue on which the

n onmo ving party

bears t he burden of pro of,” “the b urde n on the m ovin g par ty may be disch arged by ‘show ing’ – that is, pointing out to th e dist rict court – t

hat there i s an abse nce o f evid ence to support the nonmov ing party ’s c ase. ” Id. at 325. Her e, PSE&G never ass erted t ha t Co nosh enti could not meet his burde n of proving that he could have structu red h is leav e differe ntly . Nor did PSE&G argue that a showing of prej ud ice w as an essent ial element of

Co nosh enti’s cla im or that such a showing was materi al in any
w ay. Accordingly , we conclude tha t PSE &G, as the movi ng p arty , did not

sa tis fy its initial burden of point ing to an absence of evidence a s to whether Con oshe nti h ad been prej udiced

. Co nosh enti was therefor e not required, pursua nt to Fed . R. C iv. P. 56 (e), to respondwith speci fic fact s esta blis hing a genuine issue wit

h respect to the prejudic e requ ireme nt. See Celo tex C orp. v . Catre tt , 477 U.S. at 322.
2. Th e D ischa rge C laim
Subsecti on 825. 220( c) o f th e FMLA regulations provides:
An emp loyer is pro hibite d from discr iminat ing againstemploye es or prosp ectiv e employe es who have used FM LA leave . For e xam ple, if

an em ploy ee on leave wit hout pay

wo uld oth erwi se be entitled to full bene fits (other

than health benefits), the sam e ben efits w ould be requir ed to be provided to an employ ee on unp aid FML A leave. By the s a me t oke n, employe rs cannot use the takingof FMLA leave as a negati ve factor in em plo ymen t actio ns, s uch

as hiri ng, promotions or disciplinary actions; nor can FMLA leave be counted under

“no fault” atte ndance policies.
It i s apparent

from the face of § 82 5. 220(c) that to b e suc cessf ul on this cl ai m, Conoshen ti mu st show that (1) he tooka n FMLA leave, (2) he suf fered an adverse empl oyment

decisi on, and (3) t

he adverse decisio n w as cau sally rela ted to im med iate surgery , the record indicat es th a t Con os he nt i m et

wit h Dr . E dwa rdA. Somma. Dr. Somma completeda doctor’s note stat ing that

Conoshenti woul d o nly require fourtee n days of bed rest and medicati on and th at h e cou ld return to work on D ece mb er 2 0, 19 99. A pp. a t 233a-34a.13

his leave. 9 There is no di spute t hat Co nosh enti took an FMLA leave and t hat PS E&G discharged him on April 17, 1999. The issue f

or decis ion, a ccordi n gly, is whetherthe summ ary judgmen t record reflec ts a materi al dis pute o f fac t as to whethert h ere was a causalconnecti on between the t

wo. PS E&G insi sts t

hat Conoshentiwas 9 The circui ts have takendiverging paths in analyzing cl aims that an employ ee h as been discharged in ret aliation for having takenan FMLA leave. Compare Arban v. West Publish. Corp

. , 3 45 F.3d 390, 401 (6th Cir. 2003) (noti ng that suc h cl ai ms arise fro m § 261 5(a )(2)) , and Smith v. DiffeeFord-Lincol

n-Mercury, I

nc. , 298 F.3d 955 , 9 60 ( 10t

h Ci r. 200 2) (s ame ) , with Stri ckl an d v. Water Works & Sewer Bd. , 239 F.3d 1199, 1206 (11th Cir . 2001) (h o lding th atsuc h cl ai ms ari se fr om § 2615 (a)( 1) and (2), a s w ell as 9 C .F.R . § 825.220 (c)), an d King v. Pref erred Technical

Group , 166 F.3d 887, 89 1 (7th Cir. 19 99) (sam e), and Hodgens v. GeneralDynamics Corp. , 144 F.3d 151, 159-60 (1stCir. 1998 ) (same). All co urts that have conside red such situati ons have concludedthat

such disc harges vi olate the FMLA. Some have don e so without addressing the fact

that retal iati on for takinga n FMLA le ave doe s no t c ome withi n the literalscope of the secti ons of the FM LA directe d to reta liation: § 2615(a )(2), mak ing it unlawful to retaliate

“ againstany individualfor opposi ng an y practi ce ma de u nlaw ful b y the [ FM LA ],” and § 2 615 (b), ma king it unlaw ful to retaliate against

any individualfor parti cipat ing in any inquiry or proceeding relat ed to th e FM LA

. See Bachelder v. Amecica West Airlines, Inc. , 259 F. 3 d 1112, 11 24 (9th C ir. 2001). The Ninth C ircui t, we bel ieve appropri atel y , has p redica ted liab ility in such sit ua ti ons on § 825.220( c) of the regulations (quoted above ), which i s found in a secti on implementing § 2615(a) of t he statut e that, as w e hav e note d, ma kes it unlawful to interfere w ith, restrain or deny anyFMLA righ t. See Bachelder , 259 F.3d at1124. In Ba chelder , the N inth C ircuit Cou rtof Appeals rej ected a cha l lenge to the validity

of that regulation. Itdid so by pointing out that

§ 2615(a) was patterned

on § 8(a)(1) o f the NationalLabor Rela tion s Ac t (“N LR A” ), 29 U.S .C. § 158(a)(1), wh ich pro hibits in te rference

w ith right s creat ed by t hat Act. Citing NLRA cas es, the Court reas oned that the DOL was reasonabl e in co nc luding t hat employers util i zi ng the t aki ng of FMLA leave as a negat ive el ement in empl oyment decisio ns wo uld ine vitably ch ill employe e s in the exercise of those rights

. 259 F.3d at 1123 -24. As we have noted, t here is no chall enge here to t

he va li dity

of § 825.220 (c). Even though 29 C .F. R. § 825.220(c) ap pears t o be a n implementationof the “i nterfe rence” prov isio n s of the FMLA, its t ext unambigu ousl yspeaks i n terms of “discriminat ion” and “reta liatio n,” an d we shall, of course, apply it in a manner
con siste nt w ith th at tex t.14

discharged be caus e h e v io late d the LCA. In sup port o f hi s c la im that h is FMLA leave wa s respo nsible for that d ecisio n , Co nosh enti poin ts prim arily to t hree documents: (1) the April17th ter minati on letterwhich assi gned as the rea son forthe discharge all 92 day s o f his abs ence from work; (2) the draft

termination l ette r dated December 20th st ating t hat Conos hen ti

wo uld be termin ated b ecau se of his absence from work from De cem ber 6 th to December 16th ; and (3) W asser’ s December 27th no t e indic ating t hat Co nosh enti wo uld be dis charg ed up on h is retur n to work.
The Distric t Cou rt con cluded, and PS E&G does notcon test, that these docu men ts w ere suffi cient “direc t
ev idence” of Conoshenti’ s FMLA lea v e having been a factor

in the d ischarge decisi on to give Conoshenti t he benefit

of the Supreme C ourt’s d eci sion i n Price Waterhouse v. Hop ki ns , 490 U.S. 228 (1989). See Wal d en v. G eorg ia Pa cific Corp. , 126 F .3d 506 (3 d Cir. 199 7); Woodson v. Scott Paper , 109 F.3d 913 ( 3d Cir. 1997) (bo th r ecog nizing that Price Waterhouse m ay p ro pe rly b e applie d in a retal iati on case when ther e is “direct
e vidence” of reta liatoryanimus). Und e r the Price Waterhouse framework, when an FM LA plaint iff “al leg ing unlawfu l terminationprese nts ‘dir ectevidence’ that his [FM LA leave] w as a substantial f actor in the deci sion t o fire him, the bur den of persuasi on on the issue of causation shift s, and the em ployer m ust pro ve tha t it wou ld h ave fired t

he plai ntiff

even if i t hadno t
co nsider ed [the FMLA leave].” Faket e , 308 F.3d at 338 ( apply ing the “ direct evidence” analysi s t o a clai m under the Age Discri minati on in Employment A ct). 10

10 We noted in Fak ete that:

“ Directevidence” means evidence s uffici entto allow the j uryto find t

hat “the ‘decis ion makers p laced

s ubstant ial negati ve reli an c e
on [the p rotecte d activ ity] in reachi ng their de cision” ’ to fire him

. Connors v. Chrysler Fin. Corp. , 160 F.3d 971, 976 (3d Cir. 1998) (quoti ng Price Waterhouse , 490 U.S . at 277 , 109 S . Ct. 1775); see also Anderson v. Co nsol. Rail Corp. , 297 F.3d 242, 248 (3d Cir. 2002) (sam e). 308 F.3d at 338- 39. Because there i s such direct evidence here and Price Waterhouse accordi ngly

places t he burden of

showing th e ab sence of but -for caus e on the employer, we have no occasion to consider whetherthe ref

erence i n 29 C. F.R . § 825.220(c) (emphasis added) to “ a nega ti v e factor ” makes it unnecessar

y for the plaintiff to prove but-for causa tio n in FMLA ret aliatory-d ischarge case s unaffected

by Price W

aterhouse

. See Bachelder , 259 F.3d at 1124 (holding t hat to prev ail on a claim und er § 825 .220 (c), a plaint iff “n ee d o nl y p ro ve by a preponderanc e of the evi dence th at her taking of FM LA -pro tect ed leav e consti tuted

a neg ative factor in th e15

Justic e O’C onn or ex plaine d that th is burd en req uires th e em ployer:
To convince the trier of fa ct that it is

more likely than not that the deci sion

wo uld hav e been the s ame absent consider ationof the illegitima te factor. The employer need not isol ate the sol e cause for t he decisi on; rather i t mu st dem onstra te that with the illegitim a te fact or removed from the calculus, suff icie nt business reasons wo uld have induced itto take the sa me employment acti on

. Thi s e vi den ti arysc heme

essen tiallyrequ ires the e mp lo ye r to place th e empl oy ee in the s ame posit ion he or sh e would have occupied abs ent dis crimination.
Price Waterhouse , 490 U.S. at 276-77. 11
The Distri ctCou rt held that “there [was]

no genuine i ssue of material factregarding the proposition that

[PS E&G] would have discharged [Conoshen ti ] for r easons not rel atedto the F M LA leave .” Ap p. at 1 5

- 16. We agree.
Even when viewed in a lig ht most favo rable to Co nosh enti, the rec ord c learly indicates that Conoshenti would have been discharged absent any

consider ationof h is t welve weeks of FML A-protect ed leav e

. Co nosh enti himself c onceded to t he Dist ri ctCourt, a s well as in his brief on appe al, that

an y vi ol at io n of

th e LCA “w ould be de eme d auto matic ju st c ause and he would be fir ed.” Pl .’s Mem. Supp. Summ. J. at 2; Appellant ’s Br. at 7. Here, there is no qu esti on th at Co nosh enti exceededhis tw elv e weeks of protected le av e a nd, und er

th e LC A, he was subject to imm ediate discharge on the very first workdaythat he was bo th absent from
wor k a nd no longer pr otect ed by t he FMLA.
Iro ni ca lly, the evi dence that C ono shen ti reli es upon, wh ile permitting an inf erence that his abse nce from work during t he twelve weeks following Dec ember 6th was
a su bstant ial f

actor in the deci sion t o discharge him on A pril 17th, also demonstrat es t hat he would have been discharged on April 17t h had that

prior absence not occu rr ed. The December 20th draft t er min ation l ette r, t he Wasser December 27th note, and the fact that t he draft t erminat ion let

ter was not

sent de mon st rat e t ha t PS E&G was determine d both to resp ect C ono shen ti’s right to FMLA leave and t o di s charge hi m under the L CA as soo n as it could le gally do so. Wh ile the ref

erence to 92 day s in the Ap ril 17th terminationletter m ight, in isol ation, support an infer ence that the prot ected leave w a s con sidere d in co nnec tion w ith the di scha rge deci sion, it would not support a finding that Conosh e nti w ould not have been dis chargedon Ap ril 17th in the absence of havi ng taken 12 weeks of protect ed leave. dec ision to ter min ate h er”)

.

11 We have pr evio usly

recogniz ed that Justice O’C onn or’s co ncur ring o pinion in Price Waterhouse repres ents th e Supr eme Cou rt’s holding in that

cas e. See Anderson

v. Consol. Rai l Corp. , 297 F .3d 242, 248 (3d Cir . 200 2).16

Because a rati onal tri er of fact could not findin Conoshenti’s favor, su mm ary judgmenti n f

av or of PS E&G on th is claim was appropri ate. 12

B . T he N ew Je rse y Pierce Claim
In Pierce v. Ortho Pharm a ceuti cal Corp. , 417 A.2d 50 5, 512 (N.J. 1980), t he New Jersey Supre me Court recogni zed that an at-w il l employe e “has a caus e of

a ctionfor wrongful di scharge when th e discharge is contra ry to a clear mandate of pub lic policy .” An employ ee c an prove such a w rong ful dis charge cl aim by “show[ing] that the retaliation is based on the employe e’s exer cise of ce rtain establ ishedrigh ts, v iolating a cl ear
man date of

pub lic po licy.” MacDougall v. Weiche r t , 677 A .2d 162, 16 8 (N.J. 199 6). “T he sources of

public pol icy

incl ud e le gisl ation; administ rati ve rules ,

regulations or decis ions; and judi ci al dec ision s.” Pierce , 417 A.2d at 512. Further more, th e New J er se ySupreme Cou rthas recogni zed that “federallaw and po licy can constitute New Jers ey’ s clear

man date of p ubl ic po licy.” D’Agostino v. Johnson & Johnson, I

nc. , 628 A.2d 305, 312 (N.J. 1993). Whether a plai ntiff

h a s establ ishedthe ex ist en ce of such a pub lic policy i s an is sue of la w. Mehlman v. Mobil Oil Corp. , 707 A.2d 1000, 1012 (N.J. 1998). “A salutary limi ting princip le is that the offe nsive acti vi ty must pose a threat of p ublic h arm, n ot m e rely private harm or ha rm on ly to th e aggrie ved

em plo yee.” Id. at 1013. The public pol icy must also b e “clea rly identified and firmly grounde d . . . . A vag ue, co ntrov ersial,

un s ettl ed, and o therw ise pro blem atic pub lic policy

doe s n ot const itut e a clear

ma nda te.” M

acD oug all , 677 A.2d at 167. “[ U] nless an employee at will i dentifies a spec ific expressi on of pub lic policy , he may be discharged with or wit hout cau se.” Pierce , 417 A.2 d at 5 12.
Conoshen ti c ontends t

hat he i s enti tled to recover u nder Pierce because he was disc hargedin viol ation of a clear publ i c policy es ta bl is he d by

th e FMLA , 13 i.e

. , a 12 Conoshenti as sert ed an addit ional FMLA claim in the Distri ct Court ba sed on 29 C.F .R. § 8 25.22 0(b), w hic h p rovides that “‘[i] nterfe ring with’ the exercise of an employee’s right s would includ e

. . . man ipulati on by a cov ered e mp loyer to avoid respo nsibilities u nder FM LA .” His theory was thatPSE& G’s alle ge d

a ssurance s that he should t ake as long a s necessary t o recover cons titute d “manipu lati on” under§ 82 5.220 (b). W hile Con oshenti’s br iefing befo re us re fers to thos e as surances in su pport of h is failure to advise cl aim, i t does not assign a s error the Distric t Cou rt’s rejectio n of his “manipulation” claim

. Acc or di ngly , w e have no occasionto addres s the viabil ity of

suc h a c la im. 1 3 At least one New Jersey c ourt has expressl y held that the FMLA establi shes

a clear mandate of

pub lic policy

suffici ent to support a Pierce claim

. See Hampton v. ArmandCorp. , 834 A.2d 1077, 1081 (N.J. Super. Ct. App. Div. 200 3) (ho lding th at a Pierce claim may rely

on the FM LA as a

source of p ublic policy , but only i f the17

policy of ensu ring t

he job security

of employe es w ho have seriou s hea lth conditi ons that require temp orary leave. If the recor d wou ld support a findi ng that Co nosh enti was dischar ged because he tookFML A leave, t

his might

be a viable th eo ry, althou gh it is n ot clea r to us th at a Pierce clai m in that

event would be of

any additi on al benefit

to him. As we have held, how ever, the record will not supp ort
a finding t

hat Conoshe nti was dischar ged in retal iati on for tak ing his F M LA leav e. We also co nclud e that C ono shen ti

wo uld not have a meri tori ous Pierce claim base d o n the F M LA even if he w ere ab le to sho w tha t the f

ailure to advi se him of his FMLA r igh ts caus ed him prej udice. The Pierce doctrine is about wrongful discharges, and it ha s only been appli ed whe re the disc harg e itself offended a cle ar pub lic policy

. Thu s, all case s in w hich it has been success fully advance d have involved situation s in which the dis charge

was in ret aliationfor conduct supporte d by the policy or

for the employee’s exercis e of some establ ishedright . As the Supreme Cou rtof New Jersey e x pla ined in MacD oug allv . W

e ichert , 677 A.2d 162, 168 (N .J. 1996) (citations om itted): In most cases of wrongful dis charge, the employe e must show reta liation that directly relate s to an employee’s resi stance t o or discl osure of an

em ploy er’s il li ci t c onduct . I n so me cases, however, the employe e may show that t

he reta liation is based on th e emp loyee’s ex ercise o f certa i n establ ishedright s, vi olating a c lear

m an da te o f p ub lic po lic y. Co nosh enti was discharged f or violatin g the LCA and the conduct const ituting that violation, an d t ha t d isc ha rg e, a cc or di ng ly,

was unr el at ed t o hi s havin g taken FMLA leave. As a r es ul t, we predict that t he New Jersey Supreme Court would hold t hat Con oshenti’s disch arge d id no t give rise to
a Pierce claim even if it was preceded by

a failure to provide advi ce requi red by the FMLA. The D istrict Court’s summ ary judgmenton Cono shenti’s Pierce cl aim will, accordi ngly , st and.

C. T he N JLA D C laim
The NJLAD prohibi ts “any unlawful discr iminat ion against any pers on because such perso n is or h as be en at any ti me disabl ed or any

unlawful em p loyment practi ce a ga inst

such person, unless t he nature and e xtent o f the d isability

reaso nably preclude s the per formance of the particu lar em ployme nt.” N .J. Stat. Ann. § 10:5-4. 1. Further , the New Jersey Administr ative Cod e re q uires that an “employ ermu st mak e a rea sona ble

acco mm odationto the l imit ations of an employe e or applic ant who is a per son with a disab ilit y, unless t he employ er can dem onstra te that t

he accommodation pl aint iff is an “el igibl e employ ee” under the FM LA ). Co nosh enti also asserts before us a Pierce cl ai m ba se d onth e NJ LAD. He expr essly advis ed the Distric t Cou rt, how ever, tha t hi s Pierce clai m was based solely on th e FM LA and n ot o n the NJL AD. Acco rdi ng ly, a ny Pierce claim based on the NJLAD has been waived.18

wo uld impo se a n undue hardship.” N.J. Admin. Co d tit. 13, § 1 3-2.5 . This duty to
acc ommodate, however, is subject to “ a n except io n

. . . where it c an reasonably be determi ned that an .

. . employee, as a result of the i ndividualdisabi lit y, cannot prese ntl yperfo rm the job ev en w ith

reaso nable accommodation. ” N.J. Admin. Co de tit . 13, § 13- 2.8( a).
Co noshent i clai ms that PSE&G violate d his ri ght s un der

NJLAD by

deny in g hi m a
reaso nable accommodation. “G ene rally, a pr ima facie case of fa ilu re t o
acco mm odate requir es proof that(1) the plaintiff had a L AD handicap; (2) was qualif iedto perfor

m the essential

functi ons o f the job, with or wit hou t
acc omm od ation; and (3) suf fered an adverse employment

acti on because of

the han dica p.” Bo ssh ard v. Ha ckensack Un iversity MedicalCenter , 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. 199 8)).
The District Cou rt first corre ct ly ruled that Con o shen ti’s temp orary disa bility consti tuted

a handicap und er N JLA D. See Soules v. Moun t Ho line ss Mem. Park , 808 A.2d 863, 86 5-6 6 (N.J. Super. Ct. App. Div. 2002) (h olding that a “tem porary inability to work while r ec up erating from surgery or inj uryis a handi cap” under NJL AD ); see also Viscik v. Fowler Equi

p. Co. , 800 A.2d 826, 835 (N.J . 2002) (noti ng that “[t]he term ‘h andic appe d’ in L AD is not restric t ed to ‘s evere’ or ‘immutabl e’ disabi lities and has been i nterpr eted as signif icantly broader t

han the anal ogous provisi on o f the A meric ans w it h Dis abili ties A ct (A DA )”).
As to the second ele ment, however, the Distri ctCo urt fou nd th at, as of the e nd of his FM LA -prote cted le ave, C ono shen ti

was unable t o perform any of the funct ions of his job. Accordingly , the Distri ctCou rt concluded tha t the on ly reason able accommodationthat would p ro tect his employment

statu s as of tha t date w ould have bee n a le ave of a bse nce

. Wh ile noting the exi stence of federalcases
rec ognizinga leave of abs ence a s a “reaso nable acc omm od ation” under the ADA, the District Cou rtneve rtheless held that a l eave of ab senc e w as no t a
reason ab le accommodation under the NJ LA D. I t did not err in so h old ing

. As we have noted, t

he New Jersey Adm inistra tive Co de provides a n excepti on to an e mp loyer’s ob ligation to provide a reasonabl e accommoda ti on

“ whe re it can reasonably be det ermined that a n app licant o r emp loyee, as a result of the ind ividua l’s disab ili ty, cannot prese ntly perform the job even with

reaso nable accommodation. ” N.J. Admin. Code tit. 13, § 13-2.8(a) (em phasis add ed). This provi s ion of the New Jersey regulation reflects asigni ficant differe nce between the ADA and N JLAD. W hile t he ADA applies t o employe es “who, with or with ou t reasonabl e accommodation, can pe rf orm the ess entia l funct ions of t he

em plo yment

posit ion that

such indi vidual holds or desi res, ” 42 U.S.C. § 12111( 8) (empha sis adde d); see also 29 C .F.R . § 1630.2(m ), NJL AD p rotect s only an employe e who can prese ntly perform t he19

essent ial func tions of his j ob with or withoutthe rea sonable a cc ommodation. T he NJL AD regu lation th us req uires th a t the hand icapp ed em ployee b e able to perform the essent ial f

unctions of his j ob during the ap plication of the reaso nable accommodation– th at is, at thesa me t ime that the rea sona ble ac com mo dation is being implemente d. The ADA, how eve r, does n ot contai n any s uch temporal

re quirem ent. Accordingly , the feder a l

cour ts that have permitted a l eave of absence as a reas onable ac co mmodation

un der the A DA have reaso ned, e xplicitly

or im pl ici tly, tha t applying such a

reaso nable accommodation at the pres ent ti me wo uld en able th e em ployee to perform his ess entia l job func tion s in the

nearfutu re. See, e. g. , Criado v. IB M Corp. , 145 F.3 d 437, 444 (1st Ci r. 1998) (“Criado offered evi dence tendin g to show that her leave w ould be tem pora ry a nd

wo uld allow he r p hysi cian t o design an effective treat

ment program. ”). That reasoni ng is pre cludedu nde r NJ LAD because of the present performance

exc eptio n. We decli ne to hold t

hat a t e mpo rary leave of absence must

be grante d under NJL AD to reas onably accommoda te a handicappedemploye e’s i na b ility to prese ntly perform the essent ial f unctions of his j ob. Such a hold ing w ould effe ctively de feat the appl icat ion of the present performance e xcepti on. Requir ing PS E&G to grant

Cono shentia leave of absence as an acc o mmodation foll owing his FML A leave would not have e nabled him to pres ently perform his job ; rather, it wo uld have excused Conoshent i from present pe rf or m an ce co nt ra ry t o the explic itre quire men ts of th e NJ LAD regulation. We are confident that t he New Jersey Supreme Court would not sancti on such a conflict. W e will therefore a ffirm the District Cou rt’s grant of sum mary ju dgme nt in favor of PSE&G on Con oshenti’s NJL A D f ailure-to

- acc ommod at e cl ai m.

V. Conclusion
The judg men t of the Distric t Cou rt will be revers ed insofar

as it granted su mm ary judgmentto P SE& G on Con oshenti’s FMLA failure to advise c laim. It will b e affirmedin all other r espects. This matt er will be remanded to the District Co urt for further proc eedin gs co nsis ten t with th is opinion.