NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 21

- 1141

______________ DANIEL CONWAY ,

Appellant

v. CONNECTONE BANK; ROBERT MURPHY

______________ Appeal from the United States District Court f or the District of New Jersey ( D.C. No. 2

- 18

- cv - 14919 ) U.S. District Judge : Hon orable Stanley R. Chesler

______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

April 5 , 2022

______________ Before: CHAGARES, Chief Judge , SHWARTZ, Circuit Judge , and PRATTER, District Judge

. *

( Filed : April 6, 2022 )

________ ______ OPINION * *

______________

* Honorable Gene E.K. Pratter , United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

* * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2

SHWARTZ, Circuit Judge

. Daniel Conway sue d Connect O ne Bank and one of its employees, Robert Murphy (together, “CNOB”), for violations of the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and the New Jersey Family Leave Act (“NJFLA”) , N.J.S.A. § 34:1 1B

- 1 et seq. The District Court granted summary judgment in CNOB’s favor.
Because the District Court was correct in doing so , we will affirm

. I
A
1
In early 2015, Conway began discussions with Murphy, CNOB’s Managing
Director and Senior Vice President f or Commercial Lending, about joining CNOB. Murphy told Conway that CNOB was looking for someone like Conway to help grow CNOB’s commercial and industrial lending operations. Conway told Murphy that he
could brin g in $15 million in loans and $10 million in deposits in his first year. Conway was offered a position as Senior Vice President for Commercial Lending and began working for CNOB in March 2016. During orientation, Conway received and reviewed CNOB’s employee handbook that contained in formation about FMLA and NJFLA leave.
As Senior Vice President for Commercial Lending , Conway reported to Murphy and was tasked with bringing “in new business, help[ing] [Murphy] formulate structure in his team, and updat[ing] products and services.” Ap p. 99. Conway was also responsible for sourcing his own business. Given the nature of Conway’s job, he sometimes traveled
and frequently work ed from home and kept Murphy informed of his whereabouts

. In3

November 2016, prompted, in part, by Conway’s expense reports, Elizabeth Magennis , the Executive Vice President and Chief Lending Officer of CNOB , asked Murphy about Conway’s productivity

. In January 2017, Murphy conducted Conway’s first performance review . Murphy
op ined that Conway was a hard worker and generally met his job expectations , but his performance fell below Conway’s own goals , with loan origination totaling $7.4 million and deposit growth totaling $250,000. Murphy noted areas for growth, emphasizing
Conw ay’s need for “results, results, results!!!!,” increas ed exposure to senior management, and improv ement as a team play er
. App. 150. Murphy set Conway’s 2017 goals as $50 million in loan origination, $15 million in deposit growth, and $150,000 in
fee income.
In earl y March 2017, Magennis emailed Murphy asking about “what loans and deposits [Conway] ha[d] sourced on his own, and what [he] ha[ d] booked since he started.” App. 196.
2 On a Saturday in mid

- March 2017, Conway’s wife fell and required surgery ,

w hich was scheduled for the following Thursday

. Conway worked from home on Monday and came to the office on Tuesday and Wednesday

. O n Tue sday , Conway told Murphy and Magennis about his wife’s status, updated them about new deals , and “explained

. . . that [he] would be out for a significant amount of time, [and] that [ he
would ] be working from home.” App. 115

. While in the office on Wednesday, Conway told Murphy he might have to leave to take his wife to the hospital

. Thereafter, Conway4

told Murphy that he had to leave. Murphy said , “ [ g ] o right ahead,” and Conway “packed
up [his] laptop, the files [he] needed, and went home.” App. 115. Neither Murphy nor Magennis mentioned FMLA or NJFLA leave to Conway. Conway’s wife had surgery the next da y, and Conway spoke to Murphy on the phone while his wife was in surgery
. On Frida y morning , Murphy emailed Conway to ask about one of the deals on which Conway was working. Conway responded that he was in the hospital and “plan[ned] to finish [his] write

- up” later that evening or the following day . App. 116 , 153

. In response to Murphy ask ing how the surgery went, Conway responded that it was “worse than expected but it went well,” and that his w i fe
would “hopefully

. . . start therapy today / tonight.” App. 153. Conway served as his wife’s primary caretaker as she recovered, though family or friends occasionally help ed for “short periods of time when [he] would go to a meeting or go to the office.” App. 117. Although at times during his deposition Conway said he told Murphy he would be “out” and his wife needed “f ull

- time care,” App. 115

- 1 7 , he
also testified that he told CNOB that he would be “working from home.” App. 115

- 16,
118

- 19, 32 6

- 27 , 350

- 52, 458

. Conway told Murphy that he was “falling behind . . . [b]ut . . . doing his best” during the period of his wif e’s recovery. App. 117. Conway did not take any paid time off (“PTO”) in the six weeks following the
surgery when he was caring for his wife because “it didn’t cross [ his ] mind that [he]5

needed to [be]cause [he] was working.” App. 11 8. 1 No one suggested that Conway take
leave , and Conway testified that he would have been able to take FMLA leave even if it were unpaid , and that he “probably ” or definitely would have taken FMLA leave if someone had suggested he do so. App. 117 , 119

. 2
3
On Wednesday morning of the week of Conway’s wife’s surgery, and roughly two weeks after her prior email regarding Conway’s productivity, Magennis again asked Murphy about Conway’s productivity , reminding Murphy that she sought “ an update on [Conway]’s 60 day written warning that [they] discussed in February.” App. 198

. Magennis sent a follow

- up email in mid

- April, where she noted that she had “asked [Murphy] on numerous occasions about [Conway’s] progress and his written warning and/or dismissal,” and reque sted a meeting to discuss what “[Conway] ha[d] accomplished (on his own) since” he was hired, and “when [she] can expect his replacement.” App. 200. In the months that followed, Magennis expressed to Murphy

1 Although Conway apparently worked both days, he originally requested PTO for the Thursday and Friday of the week of his wife’s surge ry at least a month before her injury to attend a three

- day off

- roading event. 2 A member of CNOB’s human resources department emailed Conway regarding a n unrelated life insurance policy on the Monday following the surgery. She followed up again a few d ays later. Conway responded the same day, noting his wife’s surgery , and that he had been “scatter brain[ed] [for] the last two weeks.” App. 194. The emails made no mention of FMLA leave.6

her concern about Conway’s productivity as well as the need to warn him about his performance and the need to meet certain performance goals by August 2017

. In a June email to Murphy , Conway said he “realize[d] [he] ha[d] been off to a slow start,” but that he was “confident [he] w[ould] deliver” on t he goals he set forth in a business plan he sent to Murphy , including exceeding $50 million in new business for the
year . App. 214

. Conway explained that he did not mention his wife’s health in the email because Murphy was already aware of it. A number of the proposals and prospective
clients included in the busines s plan did not materialize

. 4 In December 2017, Conway’s wife underwent another surgery , which again
rendered h er temporarily immobile

. Conway told Murphy about her condition and explained that he “would work from home.” App. 120. The surgery was scheduled for
around the Christmas holiday, when Conway had already planned to take off

. Other than
the planned holiday PTO, Conway took no PTO during the recovery period even though
he had unused PTO remaining at the end of 2017.
5 In January 2018, CNOB issued Conway’s second performance review

. 3 The
review noted that Conway generally met expectations , that h e generated many , if not all,
of his fees from a single client who left the bank at year end , and t hat he had secured a

3 Conway asserts that he received neither performance review and the record shows that neither bore h is signature. Even assuming Conway was unaware of the contents, the evaluations reflect the employer’s perception of his work.7

“ marquee name ” in the market. App. 225 . It also observed that his accomplishments “fell below expectations , ” and stated that he need ed to secure “results,” “be more of a team player,” “increase exposure with [ s ] enior management,” and “ [ d ] evelop better relationship[s] with credit partners.” App. 225. Although Conway felt his performance
merited a bonus , he was not given one for 2017. Conway was terminated in May 2018. Murphy explained that although Conway was a hard worker who was cordial, friendly, and listened to guidance, he felt Conway’s business plan did not “com[e] to fruition,” App. 92 , and that both he and Magennis “felt
that [ Conway’s ] performance wasn’t there,” App. 92

. B Conway sued CNOB for violations of the FMLA and NJFLA. After discovery
closed , the parties cross

- moved for summary judgment.
The District Court granted CNOB ’s motion for summary judgment and denied Conway’s

. Conway v. ConnectOne BankCorp, Inc. , No. CV 18

- 14919 (SRC), 2020 WL 7706907, at *25 (D.N.J. Dec. 29, 2020)

. Relevant here, t he District Court concluded that (1) Conway’s “ denial of benefits ” interference claims failed because he did not p rovide adequate notice to CNOB that he intended to take time off due to his wife’s surger ies , id.
at *2

- 10; (2) Conway’s “ failure to advise ” interference claim s failed because he was not prejudiced by CNOB’s purported failure to give him the required FMLA notices , id. at *17

- 18; and (3) Conway’s retaliation claim s failed because he never engaged in a8

protected activity, id. at *18 , and even if he had , Conway did not rebut CNOB’s legitimate non

- discriminatory reason for his termination , id. at *18

- 25. Conway appeals

. II 4
Our Court has recognized that “[t] wo types of claims can arise under the FMLA , ”
interference claims under 29 U.S.C. § 2615(a)(1) and retaliation claims under 29 U.S.C. § 2615(a)(2). Fraternal Ord. of Police, Lodge 1 v. City of Camden , 842 F.3d 231, 245
n.64 (3d Cir. 2016)

. We address Conway’s interference and retaliation claims in turn

. 5
A
Interference claims can involve two theories : denial of benefits claims and failure
to advise claims. To recover on a denial of benefits claim , a plaintiff must show , among other things, that he “ gave notice to the defendant of his

. . . intention to take FMLA leave.” Capps v. Mondelez Glob., LLC , 847 F.3d 144, 155 (3d Cir. 2017) (quoting Ross v. Gilhuly , 755 F.3d 185, 191

- 92 (3d Cir. 2014) )

. To recover on a failure to advise claim , a plaintiff m ust show , among other things, that the “em ploye r[] fail [ed] to properly notify

4 The District Court had jurisdiction under 28 U.S.C. § § 133 1 and 1367 . We have jurisdiction under 28 U.S.C. § 1291. Our review of a district court’s order granting summary judgment is plenary, Mylan Inc. v. SmithKline Beecham Corp. , 723 F.3d 413, 418 (3d Cir. 2013), and we view the facts and make all reasonable inferences in the non

movant’s favor, Hugh v. Butler Cnty. Family YMCA , 418 F.3d 265, 267 (3d Cir. 2005). Summary judgment is appropriate where “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). The moving party is entitled to judgment as a matter of law when the non

- moving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett , 47 7 U.S. 317, 323 (1986).

5 FMLA and NJFLA claims are subject to the same analysis

. F raternal Ord. of Police, Lodge 1 , 842 F.3d at 245 n.65.9

an employee of [his ] FMLA rights .” Lupyan v. Corinthian Colls

. Inc. , 761 F.3d 314,
318

- 19 (3d Cir. 2014) ; see also 29 C.F.R. § 825.300(e)

. 1 Conway asserts that he told CNOB that his wife had surgery and he needed to
work from home to care for her. He argues that an employee provides sufficient notice
under the FMLA regardless of whether the employee actually seeks leave or indicates an
intention to take it so long as he conveys a circumstance to his employer that may qualify
for FMLA leave. Conway misconstrues the notice requirement

. To give proper notice, an employee

must request or relay an intention to take leave. See , e.g. , 29 U.S.C. § 2611(i) (defining an “eligible employee” as an employee who has been employed . . . for at least 12 months by the employer with respect to whom leave is requested under section 2612) ; 29 U.S.C. § 2612(e)(2) (requiring an employee to provide h is employer notice of his “intention to
take leave . . . .”); Lichtenstein v. Univ. of Pittsburgh Med. Ctr. , 691 F.3d 294, 303 (3d Cir. 2012) (“To invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to ta ke leave

. ”)

. Th e implementing regulations require
that an employee , depending on the circumstances surrounding the leave, “ provide at least verbal notice sufficient to make the employer aware that the employee needs
FMLA

- qualifying leave , and the anticipated timing and duration of the leave,” and

“ provide sufficient information for an employer to reasonably determine whether the FMLA may apply to [a] leave request. ” 29 C.F.R. §§ 825.302( c ), 825.303(b).10

Although the leave request need not follow any set formula, leave must be requested or the need for time off must be conveyed in some form

. For example, an employee provide d sufficient notice where he disclosed he had been h ospitalized , had
been out of work for roughly six weeks , informed his employer that t he health issues were ongoing, and that he “might need to take an addition al six weeks off for further

. . . surgery
. ” Sarnowski v. Air Brooke Limousine, Inc. , 510 F.3d 398, 400, 403 (3d Cir 2007) . We have similarly concluded that question s of fact remained as to the sufficiency of the employee’s FMLA notice where, among other things, the employee conveyed that

“ (1) she was ‘ currently in the emergency room ,’ (2) her ‘ mother had been brought into the hospital via ambulance , ’ and (3) she ‘ would be unable to work that day

. ’”
Lichtenstein , 691 F.3d at 304 (emphasis omitted ). Thus, an employee has considerable leeway in how he requests leave , but the employee must actually convey he needs time
off or is unable to work

. 6 An employee who says that he intend s to work while out of the
office has not conveyed to his employer that he is unable to work or that he seeks time
off

. Although Conway cites to instances where he told Murphy, Magennis , or both that he would be “out ” or “off” and caring for his wife , Conway never asked for leave or conveyed he was unable to work. In fact, Conway’s deposition testimony read in context
leaves no doubt that “out” and “off” meant taking care of his wife while working fr om

6 Although the FMLA imposes a duty on an employer to inquire of an employee into “ whether leave is potentially FMLA

- qualifying , ” 29 C.F.R. § § 825.301 (a), 825.302(c), 825.303(b), this duty is triggered only when an employee either request s leave , says he is unable to work, or c onvey s a certain or contingent intention to take it

.11

home. Indeed, Conway admits that he did not think to take PTO he earned because he was working. Thus, notwithstanding Conway ’s selective quotes from his deposition testimony , the record is clear that Conway never asked for leave or otherwise indicated an intention
to take it. Accordingly, no reasonable jury could conclude that Conway conveyed an
intention to take leave , and the District Court properly granted CNOB summary ju dgment

on Conway’s denial of benefits claim s
. 2
The FMLA requires employers to notify their employees of their FMLA rights, including providing a “general notice , ” an “eligibility notice , ” a “rights and responsibilities notice , ” and a “designation notice

. ” 29 C.F.R. § 825.300(a)

- (d); see also
Conoshenti v. Pub. Serv. Elec. & Gas Co. , 364 F.3d 135, 142 (3d Cir. 2004) ; Lupyan , 761 F.3d at 318 . Conway contends that CNOB failed to provide him with the latter three
individualized notices. An employer’s obligation to provide the se individualized notices arises only after an employee request s or takes leave. Under 29 C.F.R. § 825.300(b)(1), the “eligibility notice” requirement, an employer must “notify [an] employee of [ the ] employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances,” from the date the “employee requests FMLA leave, or when the employer acquires knowledge that [the] employee’s leave may be for an FMLA

qualifying rea son.” The “rights and responsibilities notice” requirement is triggered at the same time as the “eligibility notice” requirement. 29 C.F.R. § 825.300(c)(1) (“This12

notice shall be provided to the employee each time the eligibility notice is provided

. . . .”). Similarly, the “designation notice” must be given when “the employer has enough information to determine whether the leave is being taken for a FMLA

qualifying reason.” 29 C.F.R. § 825.300(d)(1); see also id. § 825.300(d)(2). Here, CNOB’s indivi dualized notice obligations were never triggered 7 because , as discussed above, Conway never requested or conveyed an intention to take leave , and Conway does not claim that he took leave that trigger ed CNOB’s obligations

. 8 Conway also failed to show that he was prejudiced by the purported failure to provide him notice . To show prejudice, Conway must “establish that th[e] failure to advise rendered him unable to exercise [his FMLA] right [to leave] in a meaningful way, thereby causing i njury.” Hansler v. Lehigh Valley Hosp. Network , 798 F.3d 149, 157 (3d Cir. 2015) (quoting Conoshenti , 364 F.3d at 143)

. Conway seems to assert that he was
unable meaningfully to exercise his right to FMLA leave because “he had no idea that he
had the option of requesting or taking job

- protected leave under the FMLA.” Appellant’s
Br. at 28

. Conway , however, does not dispute that he received and reviewed CNOB’s
handbook , which contained information about FMLA leave , or contend that the

7 Contrary to the Distr ict Court, we view CNOB as having sought summary judgment on Conway’s failure to advise claim s based on notice, causation, and prejudice. D. Ct. ECF No. 30

- 2 at 18. In any event , both Conway and CNOB have addressed the notice issue on appeal, and “[w] e m ay affirm on any basis supported by the record.” TD Bank N.A. v. Hill , 928 F.3d 259, 270 (3d Cir. 2019).

8 Conway did take pre

- scheduled PTO that ended up coincid ing with his wife’s surgeries. Conway, however, does not mention PTO in his briefs on appeal , and so any PTO

- related argument is waived. Cf. John Wyeth & Brother Ltd. v. CIGNA Int ’ l Corp. , 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments raised in passing . . . , but not squarely argued, are considered waived.”).13

information in the handbook was somehow in sufficient

. Additionally , Conway has not pointed to evidence s howing a link between the notices he was not provided and any purported inj ury. Accordingly, the District Court correctly granted CNOB summary judgment on Conway’s failure to advise claim

. B Conway’s FMLA retaliation claim also fails. An “FMLA retaliation claim is
assessed under the burden

- shifting framework established in McDonnell Douglas Co rp. v. Green , 411 U.S. 792 (1973).” Capps , 847 F.3d at 151. Under this framework, Conway must first put forth a prima facie case of retaliation , which requires that he show
he ( 1 ) engaged in a protected activity, ( 2 ) suffered an adverse employment action, and ( 3 ) the adverse action was casually related to the protected activity

. Lichtenstein , 691 F.3d at
302. “If the plaintiff succeeds, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment actio n. [If the defendant does so,] the burden then shifts back to the plaintiff to ” show “ that the articulated reason was a mere pretext for discrimination.” Capps , 847 F.3d at 151 (quoting Ross , 755 F.3d at 193). We agree with the District Court that sum mary judgment is warranted

. For the

reasons discussed above, Conway never engaged in a protected activity

. Because14

Conway cannot ma ke out this first element of his prima facie cas e , his retaliation claim
fail s. 9
III
For the foregoing reasons, we wi ll affirm

.

9 Even if we reached the issue of whether CNOB had a legitimate, nondiscriminatory reason to terminate Conway and whether the reason was pretextual, we would conclude CNOB is entitled to summary judgment

. T he re are no material dispute d facts regarding CNOB’s proffered non - discriminatory reason for Conway’s termination. CNOB’s concerns about Conway’s performance predate d his wife’s first surgery and continued thereafte r. By Conway’s own admission, he was “off to a slow start,” App. 214, and the record shows that he failed to meet his stated performance goals throughout his employment

. The purported “weaknesses, implausibilities, and inconsistencies” Conway has identified do not undermine the legitimacy of CNOB’s reason for terminati ng Conway

. See Fuentes v

. Perskie , 32 F.3d 759, 765 (3d Cir. 1994)

. For example, Murphy’s failure to recall speaking with Magennis about Conway’s perform ance prior to March 2017 does not undermine Magennis’ s contemporaneous emails to him detailing her concerns about Conway’s performance. In addition, the fact that a warning letter and termination were not contemplated until after his wife’s first surgery is consistent with Magennis’s increasing concern with Conway’s production over time and Murphy’s failure to respond to her inquires

. Conway challenge s CNOB’s assertion that he underperformed throughout his tenure by asserting that criticism purportedly st opped after June 2017 when he returned to the office. This assertion is belied by the record. Hi s January 2018 performance evaluation included continuing c riticisms about his productivity. Finally, even assuming that Conway is correct that he was not fired because of a reorganization , no reasonable juror could conclude that Conway was fired because he requested FMLA leave. In sum, Conway has failed to adduce sufficient evidence to discredit CNOB’s proffered reason, and summa ry judgment was properly granted on this basis as well.