Rudolph Tucker; Benedetto Valentino v. County of Monmouth; Monmouth County Sheriff

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3860
RUDOLPH TUCKER;
BENEDETTO VALENTINO,
Appellants
v.
COUNTY OF MONMOUTH;
MONMOUTH COUNTY SHERIFF
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 03-cv-02657)
District Judge: Honorable Garrett E. Brown, Jr.
Submitted Under Third Circuit LAR 34.1(a)
November 15, 2005
Before: BARRY, and AMBRO, Circuit Judges
POLLAK*, District Judge
(Filed: December 19, 2005)
OPINION
*Honorable Louis H. Pollak, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.

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AMBRO, Circuit Judge
Rudolph Tucker and Benedetto Valentino, employees of the County of Monmouth
and the Monmouth County Sheriff (together, the County), took leave under the Family
and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601–2654. While on this leave, they
both used paid sick time. When the County added this paid sick time to the paid sick time
Tucker and Valentino had taken at other times of the year, it found that they had both
exceeded their total allotted sick time for the year. Pursuant to its employment policies,
the County suspended Tucker and Valentino without pay for 60 days and 10 days,
respectively. The FMLA allows employees to take up to 12 weeks of leave (unpaid,
unless the employees have paid leave available) during every 12-month period for family
or serious health reasons. It also prohibits employers from retaliating or discriminating
against employees for using FMLA leave. Tucker and Valentino argue in effect that they
should be able to ignore the County’s sick-leave policy, as they assert that paid sick leave
with the County should not count when it is also used for their FMLA leave. Did the
County violate the FMLA by suspending Tucker and Valentino for exceeding their sick-
time allotment with it? We answer no and affirm the District Court’s grant of summary
judgment.
I. Factual Background and Procedural History
We write here solely for the parties, so we note only those facts most relevant to
our decision.

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Tucker and Valentino are corrections officers for the County, entitled to 120 hours
of paid sick time (equivalent to 15 eight-hour days). If County employees exceed their
120-hour allotment, the County subjects them to a progressive scale of discipline.
Tucker and Valentino both requested FMLA leave in 2002, Tucker for his wife’s
serious health condition and Valentino for his wife’s pregnancy complications. Tucker
used 106 hours of paid sick time in 2002, and Valentino used 117 hours. Both Tucker
and Valentino also used paid sick time while on their FMLA leave; Tucker used 96 hours
of paid sick time, and Valentino used 40 hours. Because Tucker took a total of 202 sick
hours and Valentino took 157, they were both disciplined with suspensions without pay in
2003.
Tucker and Valentino sued the County in June 2003 for damages resulting from
the suspensions. They moved for summary judgment in July 2004, and the County cross-
moved for summary judgment. In September 2004 the District Court denied Tucker’s
and Valentino’s motion and granted the County’s. Tucker and Valentino appeal.
II. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 because
the claim arose under federal law. The Court decided this question on summary
judgment, so we have appellate jurisdiction under 28 U.S.C. § 1291.
“We review the District Court’s grant of summary judgment de novo.” Justofin v.
Metro. Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004) (internal quotation marks omitted).
We apply the same standard as it did, affirming pursuant to Federal Rule 56(c) if “there is

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no genuine issue as to any material fact and . . . the moving party is entitled to a judgment
as a matter of law.” See id. As we review the record, we draw “all justifiable inferences
in favor of the nonmoving party.” Id.
III. Discussion
A. Plaintiffs’ claims under the Family and Medical Leave Act
The FMLA was designed to let employees “take reasonable leave for medical
reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent
who has a serious health condition.” Id. § 2601(b)(2). To that end, the FMLA provides
that “eligible employee[s] shall be entitled to a total of 12 workweeks of leave during any
12-month period” for serious health conditions or for family reasons like births or
adoptions. Id. § 2612(a)(1).
The FMLA also makes it unlawful for employers to “interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided under [the FMLA].”
Id. § 2615(a)(1). FMLA regulations prohibit employers from discriminating against
employees who have used FMLA leave. 29 C.F.R. § 825.220(c). Thus, “employers
cannot use the taking of FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no
fault’ attendance policies.” Id.
Tucker and Valentino contend that the County violated the FMLA’s anti-
retaliation provision when it suspended them. For Tucker and Valentino to prevail on
their claim, they must demonstrate that “(1) [they] took an FMLA leave, (2) [they]

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suffered an adverse employment decision, and (3) the adverse decision was causally
related to [their] leave.” Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146
(3d Cir. 2004).
Tucker and Valentino took leave under the FMLA. They both suffered adverse
employment decisions when they were suspended. Thus, the only question we must
decide is whether there was a causal connection between these two elements. In our 2004
Conoshenti case, we affirmed that the plaintiff did not establish a causal connection; he
was fired after being absent for 92 days while recuperating from an automobile accident.
Id. at 138–39. Conoshenti entered into a “Last Chance Agreement” with his employer, in
which he agreed, among other things, that he could be immediately terminated for any job
absences. Id. at 138. After the accident, his employer set in motion the process of firing
Conoshenti for violating that agreement. Id. He was given his 12 weeks of FMLA leave,
but his absence from work exceeded 12 weeks. Id. at 140. One hour after he returned to
work, he was fired. Id. at 139. We held that, because he would have been fired “absent
any consideration of his twelve weeks of FMLA-protected leave,” there was no causal
connection between his FMLA leave and his termination. Id. at 148.
Tucker and Valentino were suspended because they used more paid sick time than
they were allowed, thus violating the County’s policy. Although they took some of this
sick time during their FMLA leave, their suspensions were because they exceeded their
allowable paid sick time under the County’s policy. The County added the sick time
Tucker and Valentino had taken during their FMLA leave to the sick time they had taken

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at other times during the year. Because their total amounts of sick time exceeded 120
hours, they were suspended. Although the FMLA allows employees to take unpaid leave,
Tucker’s and Valentino’s deposition testimony shows that they chose to take paid days
rather than unpaid days. See, e.g., Tucker Dep. 49:21–24, Mar. 24, 2004 (“[W]henever I
called in I would tell them either sick or holiday or vacation day or what-have-you . . . so
that I could get paid for the day.”). They argue that the sick time they took during their
FMLA leave should not have counted against their total allowable sick time. In other
words, they want more paid sick time than other County employees got. But their sick
time did not become unlimited paid sick time simply by virtue of having been taken
during an FMLA-approved work absence.
We hold that there was no causal connection between their taking of FMLA leave
and their suspensions. From the facts we have before us, it appears that the County would
have suspended them for their sick-time violations even had they taken no FMLA leave.
We cannot conclude that a reasonable trier of fact would find in Tucker’s or Valentino’s
favor, so summary judgment in favor of the County was appropriate.
B. Plaintiffs’ claims under the New Jersey Family Leave Act
Tucker and Valentino make a parallel claim under the New Jersey Family Leave
Act, N.J. Stat. Ann. §§ 34:11B-1 to -16. To make out a claim under the New Jersey Act,
they must show that “(1) [they were] employed by defendant; (2) [they were] performing
satisfactorily; (3) a qualifying member of [their] family was seriously injured; (4) [they]
took or sought to take leave from [their] employment to care for [their] injured relative;

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and (5) [they] suffered an adverse employment action as a result.” DePalma v. Bldg.
Inspection Underwriters, 794 A.2d 848, 859, 350 N.J. Super. 195, 213 (N.J. Super. Ct.
App. Div. 2002).
For the reasons discussed above, Tucker and Valentino cannot satisfy the fifth
element. Their suspensions did not result from their taking leave, but from their
exceeding their sick-time allotments.
IV. Conclusion
Tucker and Valentino fail to show that they were suspended because they took
protected family leave. Rather, they were suspended because they exceeded their
allowable sick time. We therefore affirm the District Court’s grant of summary judgment.

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