NOT PRECEDENTIAL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

for the District of New Jersey

(D.C. No. 2-18-cv-14919)

U.S. District Judge: Honorable 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 sued ConnectOne 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. 

§ 34:11B-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 for 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 bring 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 information 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.” App. 99. Conway was also responsible 

for sourcing his own business. Given the nature of Conway’s job, he sometimes traveled 

and frequently worked from home and kept Murphy informed of his whereabouts. In 
3

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 

opined 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 

Conway’s need for “results, results, results!!!!,” increased exposure to senior 

management, and improvement as a team player. 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 early 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,

which was scheduled for the following Thursday. Conway worked from home on 

Monday and came to the office on Tuesday and Wednesday. On Tuesday, 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, Conway 
4

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 day, and Conway spoke to Murphy on the 

phone while his wife was in surgery. On Friday 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 asking how the surgery went, 

Conway responded that it was “worse than expected but it went well,” and that his wife 

would “hopefully . . . start therapy today / tonight.” App. 153.

Conway served as his wife’s primary caretaker as she recovered, though family or 

friends occasionally helped 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 “full-time care,” App. 115-17, he 

also testified that he told CNOB that he would be “working from home.” App. 115-16, 

118-19, 326-27, 350-52, 458. Conway told Murphy that he was “falling behind . . . [b]ut 

. . . doing his best” during the period of his wife’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. 118.1 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 requested 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 surgery 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 

an unrelated life insurance policy on the Monday following the surgery. She followed up 

again a few days 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 the 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 business plan did not materialize. 

4

In December 2017, Conway’s wife underwent another surgery, which again 

rendered her 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 he generated many, if not all, 

of his fees from a single client who left the bank at year end, and that he had secured a 

3 Conway asserts that he received neither performance review and the record 

shows that neither bore his 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 needed 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, the District Court concluded that

(1) Conway’s “denial of benefits” interference claims failed because he did not provide 

adequate notice to CNOB that he intended to take time off due to his wife’s surgeries, id.

at *2-10; (2) Conway’s “failure to advise” interference claims 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 claims failed because he never engaged in a 
8

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. 

II4

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 must show, among other things, that the “employer[] fail[ed] to properly notify 

4 The District Court had jurisdiction under 28 U.S.C. §§ 1331 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 nonmovant’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, 477 U.S. 317, 323 (1986).

5 FMLA and NJFLA claims are subject to the same analysis. Fraternal 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 his 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 take leave.”). The 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 provided sufficient notice where he disclosed he had been hospitalized, had 

been out of work for roughly six weeks, informed his employer that the health issues 

were ongoing, and that he “might need to take an additional 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 questions 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 intends 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 from 

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 requests

leave, says he is unable to work, or conveys 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 judgment 

on Conway’s denial of benefits claims.

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 these individualized notices arises only after

an employee requests 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 FMLAqualifying reason.” 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) (“This 
12

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 FMLAqualifying reason.” 29 C.F.R. § 825.300(d)(1); see also id. § 825.300(d)(2). 

Here, CNOB’s individualized notice obligations were never triggered7 because, as 

discussed above, Conway never requested or conveyed an intention to take leave, and 

Conway does not claim that he took leave that triggered 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 injury.” 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 District Court, we view CNOB as having sought summary 

judgment on Conway’s failure to advise claims 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 may 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 coinciding 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 insufficient. Additionally, Conway has not 

pointed to evidence showing a link between the notices he was not provided and any 

purported injury. 

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 Corp. 

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 action. [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 summary judgment is warranted. For the 

reasons discussed above, Conway never engaged in a protected activity. Because
14

Conway cannot make out this first element of his prima facie case, his retaliation claim 

fails.9

III

For the foregoing reasons, we will 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. There are no material 

disputed facts regarding CNOB’s proffered non-discriminatory reason for Conway’s 

termination. CNOB’s concerns about Conway’s performance predated his wife’s first 

surgery and continued thereafter. 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 terminating 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 performance 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 challenges CNOB’s assertion that he underperformed 

throughout his tenure by asserting that criticism purportedly stopped after June 2017 

when he returned to the office. This assertion is belied by the record. His January 2018 

performance evaluation included continuing criticisms 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 summary judgment was properly granted on this basis as well.