NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 11-1736

JADWIGA WARWAS,

 Appellant

v.

CITY OF PLAINFIELD

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 2-07-cv-04431)

District Judge: Honorable Jose L. Linares

Submitted under Third Circuit LAR 34.1(a)

on April 27, 2012

Before: GREENAWAY, JR., ROTH and TASHIMA*, Circuit Judges

(Opinion filed: July 25, 2012)

O P I N I O N

ROTH, Circuit Judge

Jadwiga Warwas brought this action, asserting (1) interference with her Family

:

and Medical Leave Act of 1993 (FMLA) rights and (2) retaliation against her for 

*Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth

Circuit, sitting by designation.
2

asserting her First Amendment petition rights. The District Court entered summary 

judgment in favor of the City of Plainfield, New Jersey, and Warwas appealed. For the 

reasons expressed below, we will affirm the judgment of the District Court. 

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

Background

Warwas, a licensed medical doctor, commenced employment with Plainfield as a 

Health Officer in 2003. Due to stress from several incidents unrelated to this litigation, 

Warwas developed peptic ulcers and clinical depression. As a result, she could not work 

for several months and sought sick leave under the FMLA. Plainfield requested that 

Warwas’s treating physician complete a medical provider certification form so it could 

determine her eligibility for FMLA leave. Warwas’s physician complied and certified 

that Warwas “was restricted to home and could not work/attend school.” Plainfield

granted the FMLA leave.

Although Warwas was on FMLA leave and indicated that she had an acute serious 

health condition and was not able to work, she continued to work at home on a part-time 

job she had with the City of Paterson, New Jersey.

1

 1 Warwas asserts that during her interview she informed Plainfield about the parttime position as a Quality Assurance Coordinator. Plainfield denies knowledge of 

Warwas’s part-time employment.

 When Plainfield discovered this, it 

sought to terminate Warwas’s employment with Plainfield, asserting that she had violated 
3

its policy on outside employment.2 After a disciplinary hearing, the charges were 

sustained and Warwas’s employment was terminated on September 30, 2006. Warwas 

appealed to the Merit System Board, which transferred the matter to the Office of 

Administrative Law. An administrative law judge (ALJ) then determined that Warwas

did not commit any misconduct because her part-time work “was not on City time nor in 

any way concealed” and that she “engaged in outside employment on her own unused 

sick or vacation time for which she was charged during her sick leave.”3

Upon Warwas’s return to work with Plainfield on April 7, 2008, she was informed 

that her office was unavailable and that she should return in two days. The parties 

dispute whether Warwas ever returned to work. On April 22, 2008, Plainfield informed 

Warwas that she was on unauthorized leave without pay and that further absences would 

result in her termination. When she failed to report to work for the remainder of the 

Although the

Merit System Board adopted the ALJ’s factual findings, it nevertheless determined that 

Warwas’s utilization of paid sick time while she engaged in secondary employment was 

prohibited. Accordingly, she was found guilty of conduct unbecoming an employee. The 

Board, however, determined that termination was “too harsh a penalty;” therefore, it 

ordered Warwas’s immediate reinstatement and modified the punishment to a fine and an 

official written reprimand. Neither party appealed the decision. 

 2 Plainfield’s Municipal Code prohibits employees from engaging in outside 

employment “without the prior and continued approval of the Department Director.”

3 In reaching this conclusion, the ALJ found that Warwas disclosed her part-time 

position with Paterson and that no Plainfield official either objected to her continued 

employment or required her to abandon it as a condition of employment with the City.
4

week, Plainfield issued a preliminary notice of disciplinary action. Warwas never 

requested a hearing, and, on May 19, 2008, Plainfield terminated her employment. 

Warwas brought this action. After the close of discovery, Plainfield moved for 

summary judgment. The District Court granted the motion and entered judgment against 

Warwas. She appealed. 

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the District 

Court’s order granting summary judgment, and, in doing so, resolve all factual disputes 

and draw all reasonable inferences in the light most favorable to the non-moving party. 

Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005). Summary judgment is 

appropriate when there “is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Discussion

A. FMLA Interference Claim

Warwas alleges that Plainfield interfered with her FMLA rights by terminating her 

employment while she was on leave. The District Court did not reach the merits of this 

claim because it found that the doctrine of issue preclusion barred her from seeking relief 

under the FMLA. The District Court held that the propriety of Warwas’s termination was 

already adjudicated by the Board, a quasi-judicial entity, and her interference claim 

merely sought to re-litigate the Board’s factual conclusion that she was guilty of conduct 

unbecoming an employee because she engaged in and received compensation for 

secondary employment while utilizing paid sick time. 
5

Despite Warwas’s arguments that her FMLA claim is not precluded, we need not 

determine whether the District Court erred because, even assuming arguendo that she 

could proceed to the merits of her interference claim, summary judgment was

nevertheless appropriate. See Oss Nokalva, Inc. v. European Space Agency, 617 F.3d 

756, 761 (3d Cir. 2010) (“It is an accepted tenet of appellate jurisdiction that we may 

affirm a judgment on any ground apparent from the record, even if the district court did 

not reach it.”) (internal quotations omitted) (citations omitted).

The FMLA permits eligible employees to take up to “12 workweeks of leave 

during any 12-month period,” 29 U.S.C. § 2612(a)(1), if a “serious health condition . . . 

makes the employee unable to perform the functions of the position of such employee,”

id. at § 2612(a)(1)(D). To prevent an employer’s interference with this leave, the FMLA

grants employees a cause of action, an interference claim. See id. at §§ 2615 & 2617. To 

assert an interference claim, a plaintiff must prove that she was denied benefits that she 

was entitled to under the FMLA. Callison, 430 F.3d at 119. The FMLA, however, does 

not prohibit the termination of an employee who abuses her leave, id. at 121; Crouch v. 

Whirlpool Corp., 447 F.3d 984, 986 (7th Cir. 2006), nor does it shield an employee from 

dismissal merely because the alleged misconduct occurred while on leave. Callison, 430 

F.3d at 121. Consequently, an employer may defeat an FMLA claim if the discharge was 

based upon the employer’s honest belief that the plaintiff either misused or failed to use 

her medical leave for the intended purpose. Crouch, 447 F.3d at 986.

The record clearly indicates that Plainfield terminated Warwas for reasons entirely 

unrelated to the exercise of her rights under the FMLA. It is also beyond dispute that 
6

Plainfield believed Warwas failed to use FMLA leave for the intended purpose when,

despite her assertion and a doctor’s note that a serious medical condition prevented her 

from working, she worked for Paterson while on sick leave. See Crouch, 447 F.3d at 

986. Warwas is not entitled to a greater degree of protection for violating Plainfield’s 

Municipal Code merely because she was on FMLA leave when caught and terminated. 

Consequently, Warwas was terminated not for her use of FMLA leave, but rather for the 

perceived misuse of the leave and for her failure to return to work. See Sarnowski v. Air 

Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007). We, therefore, conclude that 

summary judgment was appropriate on this claim.4

B. First Amendment Retaliation Claim 

Warwas asserts that her appeal to the Board for reinstatement of employment was 

protected by the First Amendment’s Petition Clause and that Plainfield’s May 2008 

termination of her employment for failing to report to work constituted retaliation for 

petitioning the Board. To establish a First Amendment retaliation claim, based upon the 

Petition Clause, a plaintiff must prove (1) that the First Amendment protected the activity 

in question, (2) that a government agent responded with a retaliatory action, and (3) that 

the protected activity was a substantial factor in the retaliation. Brightwell v. Lehman, 

637 F.3d 187, 194 (3d Cir. 2011). In circumstances where the plaintiff is a government 

employee, the First Amendment only protects against retaliatory actions if the protected 

 4 Warwas also contends that Plainfield failed to advise her of its policy regarding 

outside employment during FMLA leave and, in doing so, interfered with her FMLA 

rights. We find this argument without merit.
7

activity involved a matter of public concern. Borough of Duryea, Pa. v. Guarnieri, __ 

U.S. __, 131 S. Ct. 2488, 2500 (2011). 

Here, Warwas sought review of disciplinary findings, which included whether 

termination was an appropriate penalty for her alleged misconduct. Thus, her action

concerned a private personnel grievance, not a matter of public concern. Id. at 2501.

Because Warwas did not address matters of public concern, she was not protected by the 

First Amendment. See Gorum v. Sessoms, 561 F.3d 179, 187 (3d Cir. 2009). Thus, we

will affirm the District Court’s entry of summary judgment on this claim.

5

III. 

 

For the foregoing reasons, we will affirm the judgment of the District Court.

Conclusion

 5 Warwas also asserts that the District Court erred because it improperly applied 

the summary judgment standard by resolving disputed issues of material fact in favor of 

Plainfield. We find this argument without merit.