Richard Conoshenti v. PUBLIC SERVICE ELECTRIC & GAS COMPANY On Appeal From the United States District…

PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-2257
RICHARD CONOSHENTI
Appellant
v.
PUBLIC SERVICE ELECTRIC
& GAS COMPANY
On Appeal From the United States
District Court
For the District of New Jersey
(D.C. Civil Action No. 01-cv-04611)
District Judge: Hon. Joseph A.
Greenaway, Jr.
Argued January 26, 2004
BEFORE: NYGAARD, FUENTES
and STAPLETON, Circuit Judges
(Opinion Filed: April 13, 2004)
Gerald J. Resnick (Argued)
Andrea Rachiele
Deutsch & Resnick
One University Plaza - Suite 305
Hackensack, NJ 07601
Attorneys for Appellant
Patrick Westerkamp (Argued)
Public Service Electric &
Gas Company
80 Park Plaza – T5E
Newark, NJ 07101-0570
Attorney for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Richard Conoshenti alleges
that his employment with Public Service
Electric and Gas Company (“PSE&G”)
was terminated in violation of the Family
and Medical Leave Act of 1993, 29 U.S.C.
§ 2601 et seq., (“FMLA”), New Jersey
public policy under Pierce v. Ortho
Pharmaceutical Corp., 84 N.J. 58, 72, 417
A.2d 505, 512 (N.J. 1980), and the New
Jersey Law Against Discrimination, N.J.
Stat. Ann. § 10:5-1 et seq., (“NJLAD”).
The District Court granted summary
judgment in favor of PSE&G on all of
Conoshenti’s claims. We will reverse the
District Court’s judgment with respect to
Conoshenti’s FMLA claim and remand for
further proceedings. We will affirm,
however, the District Court’s judgment
with respect to Conoshenti’s Pierce and
NJLAD claims.
I. Facts and Procedural History
Richard Conoshenti was employed as a
First Grade Mechanic with PSE&G since

-- 1 of 19 --

2
1972. In April and May 1999, PSE&G
accused him of keeping inaccurate time
records and leaving his shift early to take
a shower. Conoshenti denied keeping
inaccurate records, claiming that he was
merely engaged in the accepted practice of
correcting times that were inappropriately
recorded. As for leaving his shift early,
Conoshenti claimed that he had been
working with chemicals that irritated his
skin, and that a shower was necessary.
Nevertheless, on May 21, 1999, PSE&G
made a decision to discharge him for these
violations of company policy.
Upon the advice of Conoshenti’s union,
and because he was willing to accept
blame to keep his job,1 he agreed to enter
into a Last Chance Agreement (“LCA”).
Under the LCA, PSE&G agreed that
C ono shen ti wo uld be reinstated,
conditioned upon his satisfactory
performance of each of the obligations
outlined in a letter dated August 10, 1999.
These obligations included: taking and
passing a physical examination, reporting
to work every day and on time,
m a i n t a i n i n g s a t i s f a c t o r y w o r k
performance, and maintaining a clean
safety record. Conoshenti understood that
if he were to violate any of these
requirements, such violation would
automatically constitute just cause for his
immediate discharge.
From August 10, 1999, the date he
entered into the LCA, to December 3,
1999, Conoshenti performed each of his
obligations and was not warned,
reprimanded, or fired for any improper
conduct. On December 4, 1999, however,
wh ile outside the scope of his
employment, Conoshenti was struck by an
automobile and sustained a serious injury
that required hospitalization. Shortly
thereafter, on December 6, 1999,
Conoshenti informed his boss at PSE&G
of his accident and the seriousness of his
injuries. He also informed his boss that his
physician had indicated that he would need
to be out of work for at least two weeks in
order to recover.2 PSE&G did not notify
Conoshenti at that time, or at any time
thereafter, of his rights under the FMLA.3
1Conoshenti continues to dispute,
however, the truth of the PSE&G’s
charges.
2Additionally, the record indicates that
on December 8, 1999, PSE&G received a
note from Conoshenti’s physician, Dr.
Edward A. Somma, dated December 6th,
indicating that Conoshenti would require
fourteen days of bedrest and medication
and that he could return to work on
December 20, 1999. App. at 233a-34a.
3During proceedings in the District
Court, PSE&G had claimed that it
informed Conoshenti of his rights under
the FMLA by letter dated December 15,
1999. Conoshenti claimed never to have
received that letter. At oral argument on
the parties’ cross-motions for summary
judgment, however, PSE&G accepted, for
purposes of summary judgment, that no
notice had been sent to Conoshenti on
December 15, 1999 or at any other time.
PSE&G also stipulated for purposes of this

-- 2 of 19 --

3
In particular, Conoshenti was not told that
he was entitled, under the FMLA, to
twelve weeks of protected leave. He was
also not told that the leave he was using
would be considered FMLA leave.
On December 16, 1999, Conoshenti met
with an orthopedic surgeon, Dr. Alexander
P. Russoniello, who diagnosed him with
torn rotator cuffs and recommended
immediate surgery. The surgery was
scheduled for early January 2000.
Conoshenti notified PSE&G of his plan to
undergo the surgery and was told to take
time to recuperate. On December 17th, he
sent PSE&G a form completed by Dr.
Russoniello that indicated his diagnosis
and that he would be unable to work until
approximately April 2000.
Thereafter, on or about December 20,
1999, PSE&G began administrative steps
to end Conoshenti’s employment for
violating the LCA. These steps included
the preparation of a Recommendation for
Disciplinary Action, which recommended
that Conoshenti be discharged because he
“was unavailable for work on 12/6/99 and
the following 9 work days, a violation of
his ‘Last Chance Agreement.’” App. at
236a. The recommendation was approved
by several PSE&G officers on December
20th, but no action was taken. PSE&G
also drafted a termination letter, dated
December 20th, that cited Conoshenti’s
absence on December 6th and the
subsequent ten days as the reason for his
discharge. App. at 237a. This letter,
however, was not signed and was never
sent.
Meanwhile, Conoshenti had become
concerned about his job security and
therefore contacted his union to determine
what he needed to do to protect himself.
The union advised him to notify PSE&G
that he desired to have his leave counted as
FMLA leave. Following this advice,
Conoshenti, on December 27, 1999, sent a
letter to his direct supervisor at PSE&G,
Bob Wasser, stating:
I would like to request an immediate
leave under the Family and Medical
Leave Act. I am requesting this
leave due to the fact that I was in an
accident on December 4, 1999. If I
can provide any other information or
doctor notif ication I would
appreciate contact fro m th e
company.
App. at 73a. That same day, Wasser made
the following handwritten notation:
Conoshenti called and stated that he
wanted a “family medical leave.” I
responded by saying that I would
research it for him and call him back.
[I] called J. Tiberi4 and discussed.
Initially the discharge was to be
executed through the mail, effective appeal that “a letter dated December 15,
1999 (238a - 240a) was neither sent by
PSE&G, nor received by Mr. Conoshenti.
(358a - 359a).” Appellee’s Br. at 6 n.4. 4J. Tiberi was the signatory for PSE&G
on the LCA.

-- 3 of 19 --

4
1-01-00[.] [W]hen I mentioned
“family leave” Tiberi said he would
call [redacted]. Tiberi paged me ½
hour later. I called and was informed
by Tiberi that we must hold off on
the discharge, because: He is entitled
to benefits while he is on disability.
It is against the law to discharge
under these conditions. Tiberi said
that he will be discharged upon his
return to work 1st day back.
App. at 246a. Conoshenti then underwent
surgery for his torn rotator cuff in early
January 2000. Thereafter, Conoshenti’s
doctors periodically updated PSE&G on
his condition. Conoshenti claimed that
throughout his recovery, he was told by
several different people at PSE&G,
including Wasser, to take his time
recovering and to not hurry back until he
was “100%.” App. at 294a, 295a.
Conoshenti also claimed that he was
assured that “light duty” would be
available to him when he was able to
return to work. App. at 295a.
On March 28, 2000, Dr. Russoniello
authorized Conoshenti to return to work
for “desk duty” as of April 3, 2000, and
Conoshenti, in turn, notified PSE&G of his
ability to return to work. PSE&G
informed him, however, that the facility
where he worked could not accommodate
desk duty and that his return to work
would have to be delayed until his doctor
cleared him for full active manual labor.
In April 2000, Conoshenti’s doctor
authorized his return to unrestricted work
duty. On April 12, 2000, Conoshenti took
and passed a physical examination
required by PSE&G. It was Conoshenti’s
understanding that passing the physical
examination was the only condition placed
on his returning to work. Also on April
1 2 , 1 9 9 9 , P S E & G r e i n i t i a t e d
administrative steps to end Conoshenti’s
employment for violation of the LCA. On
April 17, 1999, Conoshenti reported for
work. After one hour on the job, however,
he was called into his supervisor’s office
and told he was being terminated for
violation of the LCA. The termination
letter stated, in part:
On December 6, 1999, you were
unable to report to work as a result
of being involved in a motor vehicle
accident. Subsequently, you were
out of work for 92 days, a violation
of the terms and conditions of your
“Last Chance Agreement.” As a
result of your failure to comply with
the terms and conditions of this
agreement, your employment with
Public Service Electric and Gas
Company is being terminated April
17, 2000.
App. at 269a.
It is undisputed that Conoshenti’s
absence from work exceeded the twelve
weeks of leave that are protected by the
FMLA. If Conoshenti’s protected leave
were considered to have begun on
December 6, 1999, the twelve week period
would have expired on March 1, 2000.
Even if the twelve week period were
considered to have begun on December 27,
1999, the protected period would have
expired on M arch 19, 2000.

-- 4 of 19 --

5
After his discharge, Conoshenti and his
union filed a grievance and the case was
arbitrated pursuant to the LCA. Although
the arbitrator noted that the LCA was very
stringent and possibly even “draconian,”
he nevertheless found that Conoshenti had
violated its terms and therefore denied the
grievance.
Conoshenti then filed a complaint
against PSE&G in the Superior Court of
New Jersey, Union County. Counts One
and Two of the complaint alleged
violations of NJLAD. Count Three
alleged that Conoshenti had been
wrongfully discharged in violation of
public policy under Pierce v. Ortho
Pharmaceutical Corp., 84 N.J. 58, 72, 417
A.2d 505, 512 (N.J. 1980). Count Four
alleged violations of the FMLA. PSE&G
removed the case to the United States
District Court for the District of New
Jersey.
Conoshenti and PSE&G filed cross-
motions for summary judgment. The
District Court granted summary judgment
in favor of PSE&G on all of Conoshenti’s
claims. This timely notice of appeal
followed.5
II. Discussion
Conoshenti argues that the District
Court erred in granting PSE&G’s motion
for summary judgment and denying his
own motion for summary judgment. We
review the District Court’s grant of
summary judgment de novo. American
Medical Imaging Corp. v. St. Paul Fire &
Marine Ins. Co., 949 F.2d 690, 692 (3d
Cir.1991). Summary judgment is
appropriate if there are no genuine issues
of material fact presented and the moving
party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986);
Wisniewski v. Johns-Manville Corp., 812
F.2d 81, 83 (3d Cir. 1987). In determining
whether a genuine issue of fact exists, we
resolve all factual doubts and draw all
reasonable inferences in favor of the
nonmoving party. Suders v. Easton, 325
F.3d 432, 435 n.2 (3d Cir. 2003).
“Although the initial burden is on the
summary judgment movant to show the
absence of a genuine issue of material fact,
‘the burden on the moving party may be
discharged by ‘‘showing’’ – that is,
pointing out to the district court – that
there is an absence of evidence to support
the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden
of proof.” Singletary v. Pennsylvania
Dept. of Corrections, 266 F.3d 186, 192
n.2 (3d Cir. 2001) (quoting Celotex, 477
5The District Court had jurisdiction
under 28 U.S.C. § 1331 (2001) because the
case involved a federal question, and
removal was proper under 28 U.S.C. §
1441(b) (2001). The District Court had
supplemental jurisdiction over the New
Jersey state law claims under 28 U.S.C. §
1367 (2001). We have jurisdiction over
this appeal pursuant to 28 U.S.C. § 1291
(2001) because the District Court’s order
granting summary judgment to PSE&G on
all claims was a final decision.

-- 5 of 19 --

6
U.S. at 325).
A. Family and Medical Leave Act Claims
The stated purposes of the FM LA are to
“balance the demands of the workplace
with the needs of families” and “to entitle
employees to take reasonable leave for
medical reasons.” 29 U.S.C. § 2601(b)(1)
and (2). The FMLA seeks to accomplish
these purposes “in a manner that
accommodates the legitimate interests of
employers.” 29 U.S.C. § 2601(b)(3). In
furtherance of these objectives, the FMLA
requires that “an eligible employee shall be
entitled to a total of twelve workweeks of
leave during any twelve month period” if
the employee has a “serious health
condition that makes the employee unable
to perform the functions of the position of
such emp loyee.” 29 U.S .C. §
2612(a)(1)(D).6 After an eligible
employee returns from an FMLA leave,
the employee is entitled to be reinstated to
his or her former position, or an equivalent
one. 29 U.S.C. § 2614(a)(1). This right to
reinstatement is qualified by a statutory
directive that it does not entitle a restored
employee to a right, benefit or position to
which the employee would not “have been
entitled had the employee not taken the
leave.” 29 U.S.C. § 2614(a)(3)(B). Thus,
for example, if an employee is discharged
during or at the end of a protected leave
for a reason unrelated to the leave, there is
no right to reinstatement. 29 C.F.R. §
825.216(a)(1).
In order to protect these substantive
rights, the FMLA proscribes an employer
from engaging in certain acts. See 29
U.S.C. § 2615. Section 2615(a)(1) makes
it “unlawful for any employer to interfere
with, restrain, or deny the exercise of or
the attempt to exercise, any right provided
under this subchapter.” Section 2615(a)(2)
makes it “unlawful for any employer to6“The term ‘eligible employee’ means
an employee who has been employed – (i)
for at least 12 months by the employer
with respect to whom leave is requested
under section 2612 of this title; and (ii) for
at least 1,250 hours of service with such
employer during the previous 12-month
period.” 29 U.S.C. § 2611(2)(A). “The
term ‘serious health condition’ means an
illness, injury, impairment, or physical or
mental condition that involves – (A)
inpatient care in a hospital, hospice, or
residential medical care facility; or (B)
continuing treatment by a health care
provider.” 29 U.S.C. § 2611(11). When
an eligible employee needs to take FMLA
leave that was not foreseeable, “[t]he
employee need not expressly assert rights
under the FMLA or even mention the
FMLA”; rather the employee need only
notify the employer that leave is needed.
29 C.F.R. § 825.303(b).
In this case, there is no dispute that
Conoshenti was an eligible employee or
that his injury qualified as a serious health
condition. Moreover, as the District Court
noted, it is undisputed that Conoshenti
fulfilled his duty to notify under the
FMLA by informing PSE&G of his injury
and need for time off within two days of
his accident.

-- 6 of 19 --

7
discharge or in any other manner
discriminate against any individual for
opposing any practice made unlawful by
this subchapter.” Finally, § 2615(b)
provides that “[i]t shall be unlawful for
any person to discharge or in any other
manner discriminate against any individual
because such individual – (1) has filed any
charge, or has instituted or caused to be
instituted any proceeding, under or related
to this subchapter; (2) has given, or is
about to give, any information in
connection with any inquiry or proceeding
relating to any right provided under this
subchapter; or (3) has testified, or is about
to testify, in any inquiry or proceeding
relating to any right provided under this
subchapter.” The FMLA grants employees
a cause of action against employers who
violate § 2615. See 29 U.S.C. § 2617.
In addition, the United States
Department of Labor (“DOL”) has
promulgated regulations implementing the
FMLA, as authorized by 29 U.S.C. § 2654.
Of particular significance here, §
825.220(c) of those regulations provides:
An employer is prohibited from
discriminating against employees or
prospective employees who have
used FMLA leave. For example, if
an employee on leave without pay
would otherwise be entitled to full
benefits (other than health benefits),
the same benefits would be required
to be provided to an employee on
unpaid FMLA leave. By the same
token, 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.
29 C.F.R. § 825.220(c). The DOL’s
regulations also provide that “[a]ny
violations of the [FMLA] or of these
regulations constitute interfering with,
restraining, or denying the exercise of
rights provided by the Act.” 29 C.F.R. §
825.220(b). “‘Interfering with’ the
exercise of an employee’s rights would
include, for example, not only refusing to
authorize FMLA leave, but discouraging
an employee from using such leave. It
would also include manipulation by a
covered employer to avoid responsibilities
under FMLA.” 29 C.F.R. § 825.220(b).
Moreover, “[e]mployees cannot waive, nor
may employers induce employees to
waive, their rights under FMLA.” 29
C.F.R. § 825.220(d).
Finally, the DOL’s regulations impose
upon the employer obligations to
communicate with employees regarding
their rights under the FMLA. In particular,
the regulations require employers to
provide employees with individualized
notice of their FMLA rights and
obligations. Pursuant to 29 C.F.R. §
825.208(a), “[i]n all circumstances, it is
the employer’s responsibility to designate
leave, paid or unpaid, as FMLA-
qualifying, and to give notice of the
designation to the employee . . . .” If an
employer provides employees with a
handbook concerning employee benefits,
“the handboo k m ust incorporate
information on FMLA rights and

-- 7 of 19 --

8
responsibilities and the employer’s policies
regarding the FMLA.” 29 C.F.R. §
825.301(a)(1). If the employer does not
provide such a handbook, such
information must be provided when an
employee requests leave. 29 C.F.R. §
825.301(a)(2). Moreover, each time the
employee requests leave, the employer
must, within a reasonable time thereafter –
“one or two business days if feasible,”
“provide the employee with written notice
detailing the specific expectations and
obligations of the employee and explaining
any consequences of a failure to meet
these obligations.” 29 C.F.R. §
825.301(b)(1), (c). This specific notice
must include, among other things, whether
“the leave will be counted against the
employee’s a n n ua l F M L A l e ave
entitlement,” 29 C.F.R. § 825.301(b)(1)(i),
and “the employee’s right to restoration to
the same or equivalent job upon return
f r o m l e a v e , ” 2 9 C . F . R . §
825.301(b)(1)(vii). Neither party in this
case has challenged the validity of these
regulations.
There are two arrows to Conoshenti’s
FMLA bow. He insists that the District
Court erred in granting summary judgment
against him because (1) PSE&G failed to
advise him of his FMLA rights and
thereby interfered with his ability to
meaningfully exercise his right to an
FMLA leave; and (2) PSE&G “use[d] the
taking of FMLA leave as a negative factor
in” its decision to discharge him on April
17, 2000. 29 C.F.R. § 825.220(c). We
will address each of these independent
theories of liability in turn.
1. The Failure to Advise Claim
Conoshenti argues that PSE&G’s
failure to advise him of his right to twelve
weeks of FMLA leave, after he properly
gave notice of his serious health condition,
constituted an interference with his FMLA
right to that protected leave. Had he
received the advice PSE&G was obliged to
provide, Conoshenti insists, he would have
been able to make an informed decision
about structuring his leave and would have
structured it, and his plan of recovery, in
such a way as to preserve the job
protection afforded by the Act. We
conclude that this is a viable theory of
recovery and that the District Court
accordingly erred in granting summary
judgment on it against Conoshenti.
As we have noted, the parties stipulated
in the District Court that, for purposes of
summary judgment, PSE&G did not advise
Conoshenti of his rights under the FMLA.
As we have also noted, the regulation
under the FMLA imposed a duty on
PSE&G to do so. It follows, we believe,
that Conoshenti will show an interference
with his right to leave under the FMLA,
within the meaning of 29 U.S.C. §
2615(a)(1), if he is able to establish that
this failure to advise rendered him unable
to exercise that right in a meaningful way,
thereby causing injury. Neither PSE&G in
its brief nor the District Court in its
opinion contest the theoretical basis for
this claim, and we believe that basis is
supported by the relatively sparse authority
relevant to the issue.
In Ragsdale v. Wolverine World Wide,

-- 8 of 19 --

9
Inc., 535 U.S. 81 (2002), the Supreme
Court had before it the FMLA regulations
requiring an employer to advise employees
of FMLA rights. It was called upon to
determine the validity of a regulation, 29
C.F.R. § 825.770(a),7 which imposed a
penalty on an employer who failed to
advise that a leave taken by an employee
would cou nt a ga in st h er F M LA
entitlement. Under this regulation, the
twelve week FMLA leave did not
commence until this advice was given. In
Ms. Ragsdale’s case, this would have
entitled her to 30 weeks of leave, even
though she could not show that she was in
any way prejudiced by the employer’s
breach of duty. The Court struck down
this penalty provision, noting that it was
“unconnected to any prejudice the
employee might have suffered from the
employer’s lapse” and, accordingly,
“incompatible with th e F M L A ’s
comprehensive remedial mechanism”
which affords no relief absent prejudice
from a statutory violation. Ragsdale, 535
U.S. at 88-89.
The Ragsdale Court expressly noted
that the validity of notice requirements of
the regulations themselves was not before
it. Accordingly, Ragsdale is not
dispositive of anything before us. It is
helpful, however, because the Court found
“reasonable” Ragsdale’s suggestion that a
failure to advise of FMLA rights could
constitute an interference with “an
employee’s exercise of basic FMLA rights
in violation of § 2615”:
Section 825 .700(a), Ragsdale
contends, reflects the Secretary’s
understanding that an employer’s
failure to com ply with the
designation requireme nt might
sometimes burden an employee’s
exercise of basic FMLA rights in
violation of § 2615. Consider, for
instance, the right under § 2612(b)(1)
to take intermittent leave when
medically necessary. An employee
who undergoes cancer treatments
every other week over the course of
12 weeks might want to work during
the off weeks, earning a paycheck
and saving six weeks for later. If she
is not informed that her absence
qualifies as FMLA leave – and if she
does not know of her right under the
statute to take intermittent leave –
she might take all 12 of her FMLA-
guaranteed weeks consecutively and
have no leave remaining for some
future emergency. In circumstances
like these, Ragsdale argues, the
employer’s failure to give the notice
required by the regulation could be
said to “deny,” “restrain,” or
“interfere with” the employee’s
exercise of her right to take
intermittent leave.
This position may be reasonable, but
7Section 825.770(a) provided, in part:
If an employee takes paid or
unp aid leave and the
employer does not designate
the leave as FMLA leave,
the leave taken does not
count against an employee’s
FMLA entitlement.

-- 9 of 19 --

10
the more extreme one embodied in §
825.700(a) is not. . . . [It] establishes
an irrebuttable presumption that the
employee’s exercise of FMLA rights
was impaired – and that the
employee deserves 12 more weeks.
There is no empirical or logical basis
for this presumption, as the facts of
this case well demonstrate. Ragsdale
has not shown that she would have
taken less leave or intermittent leave
if she had received the required
notice.
Ragsdale, 535 U.S. at 89-90. This portion
of the Ragsdale opinion, together with our
own assessment of the reasonableness of
the notice regulations, persuades us that
the Supreme Court would find an
actionable “interference” in violation of §
2615(a) here in the event Conoshenti is
able to show prejudice as a result of that
violation.
The District Court from which this
appeal comes to us has previously
endorsed the theory of recovery
Conoshenti advances here. In Nusbaum v.
CB Richard Ellis, Inc., 171 F. Supp. 2d
377, 379-80 (D.N.J. 2001), after plaintiff
Margot Nusbaum learned that she required
back surgery, she requested that her
employer allow her to take medical leave
and also requested information regarding
the employer’s medical leave policy. The
employer refused to provide this
information. Moreover, Nusbaum never
received any ma terials prov iding
information on FMLA leave and the
employer had not complied with 29 U.S.C.
§ 2619’s requirement that it post a notice
outlining the F M L A ’s im portant
provisions and the employees’ FMLA
rights. Her employer also failed to
prospectively designate her leave as
FMLA leave in violation of 29 C.F.R. §§
825.208 and .700. Nusbaum took the
leave required for her surgery, and was
discharged during her absence. Nusbaum
then brought suit, alleging that her
employer’s failure to notify her of her right
to twelve weeks of FMLA-protected leave,
and her subsequent termination, interfered
with her FMLA rights in violation of 26
U.S.C. § 2615(a)(1). The District Court
denied the employer’s motion to dismiss,
holding as follows:
[T]he purpose of the regulations
enacted by the DOL . . . is to ensure
that employers allow their employees
to make informed decisions about
leave. . . . The overall intent of the
FMLA is lost when an employer fails
to provide an employee with the
opportunity to make informed
decisions about her leave options and
limitations. Without such an
opportunity, the employee has not
received the statutory benefit of
taking necessary leave with the
reassurance that her employment,
under proscribed conditions, will be
waiting for her when she is able to
return to work.
Id. at 385-86. The court concluded that
Nusbaum “was, therefore, not given the
proper information that would have
allowed her to structure her leave in a way
that would have left her protected by the
FMLA.” Id. at 386. We find this

-- 10 of 19 --

11
reasoning of the Nusbaum Court
persuasive.
The District Court in Conoshenti’s case
accepted his claim that the regulations
imposed a duty on PSE&G to advise him
of his FMLA rights and that a failure to do
so could result in an “interference” under
§ 2615(a)(1). It distinguished Nusbaum,
however, on the ground that Conoshenti
had proven no prejudice as required by
Ragsdale. In support of this conclusion,
the Court first noted that “his ignorance of
the nature of his leave ended on December
27.” Accordingly, it held that
Conoshenti’s reliance on Nusbaum could
only be used to delay the commencement
of his twelve weeks of FMLA-protected
leave from December 6th to December
27th; this would, in any event, have left
him unprotected by the FMLA before he
returned to work. The Court then
observed that Conoshenti had “presented
no evidence that he could have made a
different choice had PSE&G informed him
that his FMLA leave began on December
6,” and made “only the bare assertion that
he could have made different decisions.”
App. at 16a. We hold that the District
Court’s analysis is at odds with well-
established principles governing the
propriety of summary judgments.
The record indicates that in December
1999, Conoshenti contacted his union in
order to learn what he needed to do to
protect his job during his recovery. In
response to this inquiry, the union advised
Conoshenti to inform PSE&G that he
wanted his leave to be considered FMLA
leave. The record further indicates that
Conoshenti then sent a letter to PSE&G on
December 27, 1999 stating that he “would
like to request an immediate leave under
the Family and Medical Leave Act.” App.
at 73a. Nothing in the record, however,
indicates that Conoshenti knew that he was
entitled to only twelve weeks of protected
leave. Rather, the record simply reflects
what Conoshenti was told to say and what
he did say. The summary judgment record
thus does not speak to Conoshenti’s
knowledge of his relevant FMLA rights on
December 27th or thereafter during his
leave.
Similarly, the summary judgment
record, as the District Court correctly
noted, contains no competent evidence
regarding the alternatives that would have
been available to Conoshenti had PSE&G
advised him of his rights when he
requested leave on December 6th. Only
Conoshenti’s brief contains a statement of
what he would have done had he been
advised of his rights.8
8Conoshenti insists that his recovery
consisted of two phases: the initial
recovery from the accident, and the
subsequent recovery from the shoulder
surgery. If he had known that he could not
exceed twelve weeks of leave, he claims,
he could have explored the feasibility of
postponing the surgery to a subsequent
FMLA period. The record does contain
some support for Conoshenti’s assertion
that he could have returned to work within
twelve weeks without the shoulder
surgery. Prior to Conoshenti’s visit with
the orthopedic surgeon who recommended

-- 11 of 19 --

12
While we agree with the District Court
that these gaps in the record required it to
deny Conoshenti’s motion for summary
judgment, they clearly did not warrant the
grant of PSE&G’s motion. It is well
established that “a party seeking summary
judgment always bears the initial
responsibility of informing the district
court of the basis for its motion, and
identifying those portions of ‘the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,’ which
it believes demonstrate the absence of a
genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)). “With
respect to an issue on which the
nonmoving party bears the burden of
proof,” “the burden on the moving party
may be discharged by ‘showing’ – that is,
pointing out to the district court – that
there is an absence of evidence to support
the nonmoving party’s case.” Id. at 325.
Here, PSE&G never asserted that
Conoshenti could not meet his burden of
proving that he could have structured his
leave differently. Nor did PSE&G argue
that a showing of prejudice was an
essential element of Conoshenti’s claim or
that such a showing was material in any
way. Accordingly, we conclude that
PSE&G, as the moving party, did not
satisfy its initial burden of pointing to an
absence of evidence as to whether
Con oshe nti had been prejudiced.
Conoshenti was therefore not required,
pursuant to Fed. R. Civ. P. 56(e), to
respond with specific facts establishing a
genuine issue with respect to the prejudice
requirement. See Celotex Corp. v. Catrett,
477 U.S. at 322.
2. The Discharge Claim
Subsection 825.220(c) of the FMLA
regulations provides:
An employer is prohibited from
discriminating against employees or
prospective employees who have
used FMLA leave. For example, if
an employee on leave without pay
would otherwise be entitled to full
benefits (other than health benefits),
the same benefits would be required
to be provided to an employee on
unpaid FMLA leave. By the same
token, 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.
It is apparent from the face of §
825.220(c) that to be successful on this
claim, Conoshenti must show that (1) he
took an FMLA leave, (2) he suffered an
adverse employment decision, and (3) the
adverse decision was causally related to
immediate surgery, the record indicates
that Conoshenti met with Dr. Edward A.
Somma. Dr. Somma completed a doctor’s
note stating that Conoshenti would only
require fourteen days of bed rest and
medication and that he could return to
work on December 20, 1999. App. at
233a-34a.

-- 12 of 19 --

13
his leave.9 There is no dispute that Conoshenti took an FMLA leave and that
PSE&G discharged him on April 17, 1999.
The issue for decision, accordingly, is
whether the summary judgment record
reflects a material dispute of fact as to
whether there was a causal connection
between the two.
PSE&G insists that Conoshenti was
9The circuits have taken diverging paths
in analyzing claims that an employee has
been discharged in retaliation for having
taken an FMLA leave. Compare Arban v.
West Publish. Corp., 345 F.3d 390, 401
(6th Cir. 2003) (noting that such claims
arise from § 2615(a)(2)), and Smith v.
Diffee Ford-Lincoln-Mercury, Inc., 298
F.3d 955, 960 (10th Cir. 2002) (same),
with Strickland v. Water Works & Sewer
Bd., 239 F.3d 1199, 1206 (11th Cir. 2001)
(holding that such claims arise from §
2615(a)(1) and (2), as well as 9 C.F.R. §
825.220(c)), and King v. Preferred
Technical Group, 166 F.3d 887, 891 (7th
Cir. 1999) (same), and Hodgens v.
General Dynamics Corp., 144 F.3d 151,
159-60 (1st Cir. 1998) (same). All courts
that have considered such situations have
concluded that such discharges violate the
FMLA. Some have done so without
addressing the fact that retaliation for
taking an FMLA leave does not come
within the literal scope of the sections of
the FMLA directed to retaliation: §
2615(a)(2), making it unlawful to retaliate
“against any individual for opposing any
practice made unlawful by the [FMLA],”
and § 2615(b), making it unlawful to
retaliate against any individual for
participating in any inquiry or proceeding
related to the FM LA. See Bachelder v.
Amecica West Airlines, Inc., 259 F.3d
1112, 1124 (9th Cir. 2001).
The Ninth Circuit, we believe
appropriately, has predicated liability in
such situations on § 825.220(c) of the
regulations (quoted above), which is found
in a section implementing § 2615(a) of the
statute that, as we have noted, makes it
unlawful to interfere with, restrain or deny
any FMLA right. See Bachelder, 259 F.3d
at 1124. In Bachelder, the Ninth Circuit
Court of Appeals rejected a challenge to
the validity of that regulation. It did so by
pointing out that § 2615(a) was patterned
on § 8(a)(1) of the National Labor
Relations Act (“NLRA”), 29 U.S.C. §
158(a)(1), which prohibits interference
with rights created by that Act. Citing
NLRA cases, the Court reasoned that the
DOL was reasonable in concluding that
employers utilizing the taking of FMLA
leave as a negative element in employment
decisions would inevitably chill employees
in the exercise of those rights. 259 F.3d at
1123-24. As we have noted, there is no
challenge here to the validity of §
825.220(c).
Even though 29 C.F.R. §
8 2 5 . 2 2 0 ( c ) a p p e a r s t o b e a n
implementation of the “interference”
provisions of the FMLA, its text
unambiguously speaks in terms of
“discrimination” and “retaliation,” and we
shall, of course, apply it in a manner
consistent with that text.

-- 13 of 19 --

14
discharged because he violated the LCA.
In support of his claim that his FMLA
leave was responsible for that decision,
Conoshenti points primarily to three
documents: (1) the April 17th termination
letter which assigned as the reason for the
discharge all 92 days of his absence from
work; (2) the draft termination letter dated
December 20th stating that Conoshenti
would be terminated because of his
absence from work from December 6th to
December 16th; and (3) Wasser’s
December 27th note indicating that
Conoshenti would be discharged upon his
return to work.
The District Court concluded, and
PSE&G does not contest, that these
docu men ts were sufficient “direct
evidence” of Conoshenti’s FMLA leave
having been a factor in the discharge
decision to give Conoshenti the benefit of
the Supreme Court’s decision in Price
Waterhouse v. Hopkins, 490 U.S. 228
(1989). See Walden v. Georgia Pacific
Corp., 126 F.3d 506 (3d Cir. 1997);
Woodson v. Scott Paper, 109 F.3d 913 (3d
Cir. 1997) (both recognizing that Price
Waterhouse may properly be applied in a
retaliation case when there is “direct
evidence” of retaliatory animus). Under
the Price Waterhouse framework, when an
FMLA plaintiff “alleging unlawful
termination presents ‘direct evidence’ that
his [FMLA leave] was a substantial factor
in the decision to fire him, the burden of
persuasion on the issue of causation shifts,
and the employer must prove that it would
have fired the plaintiff even if it had not
considered [the FMLA leave].” Fakete,
308 F.3d at 338 (applying the “direct
evidence” analysis to a claim under the
Age Discrimination in Employment Act).10
10We noted in Fakete that:
“Direct evidence” means
evidence sufficient to allow
the jury to find that “the
‘decision makers placed
substantial negative reliance
on [the protected activity] in
reaching their decision”’ to
fire him. Connors v.
Chrysler Fin. Corp., 160
F.3d 971, 976 (3d Cir. 1998)
(quoting Price Waterhouse,
490 U.S. at 277, 109 S. Ct.
1775); see also Anderson v.
Consol. Rail Corp., 297
F.3d 242, 248 (3d Cir. 2002)
(same).
308 F.3d at 338-39.
Because there is such direct
evidence here and Price Waterhouse
accordingly places the burden of showing
the absence of but-for cause on the
employer, we have no occasion to consider
whether the reference in 29 C.F.R. §
825.220(c) (emphasis added) to “a
negative factor” makes it unnecessary for
the plaintiff to prove but-for causation in
FMLA retaliatory-discharge cases
unaffected by Price Waterhouse. See
Bachelder, 259 F.3d at 1124 (holding that
to prevail on a claim under § 825.220(c), a
plaintiff “need only prove by a
preponderance of the evidence that her
taking of FM LA -protected leave
constituted a negative factor in the

-- 14 of 19 --

15
Justice O’Connor explained that this
burden requires the employer:
To convince the trier of fact that it is
more likely than not that the decision
would have been the same absent
consideration of the illegitimate
factor. The employer need not
isolate the sole cause for the
decision; rather it must demonstrate
that with the illegitimate factor
removed from the calculus, sufficient
business reasons would have induced
it to take the same employment
action. This evidentiary scheme
essentially requires the employer to
place the employee in the same
position he or she would have
occupied absent discrimination.
Price Waterhouse, 490 U.S. at 276-77.11
The District Court held that “there [was]
no genuine issue of material fact regarding
the proposition that [PSE&G] would have
discharged [Conoshenti] for reasons not
related to the FMLA leave.” App. at 15-
16. We agree.
Even when viewed in a light most
favorable to Conoshenti, the record clearly
indicates that Conoshenti would have been
discharged absent any consideration of his
twelve weeks of FMLA-protected leave.
Conoshenti himself conceded to the
District Court, as well as in his brief on
appeal, that any violation of the LCA
“would be deemed automatic just cause
and he would be fired.” Pl.’s Mem. Supp.
Summ. J. at 2; Appellant’s Br. at 7. Here,
there is no question that Conoshenti
exceeded his twelve weeks of protected
leave and, under the LCA, he was subject
to immediate discharge on the very first
workday that he was both absent from
work and no longer protected by the
FMLA.
Ironically, the evidence that Conoshenti
relies upon, while permitting an inference
that his absence from work during the
twelve weeks following December 6th was
a substantial factor in the decision to
discharge him on April 17th, also
demonstrates that he would have been
discharged on April 17th had that prior
absence not occurred. The December
20th draft termination letter, the Wasser
December 27th note, and the fact that the
draft termination letter was not sent
demonstrate that PSE&G was determined
both to respect Conoshenti’s right to
FMLA leave and to discharge him under
the LCA as soon as it could legally do so.
While the reference to 92 days in the April
17th termination letter might, in isolation,
support an inference that the protected
leave was considered in connection with
the discharge decision, it would not
support a finding that Conoshenti would
not have been discharged on April 17th in
the absence of having taken 12 weeks of
protected leave.
decision to terminate her”).
11We have previously recognized that
Justice O’Connor’s concurring opinion in
Price Waterhouse represents the Supreme
Court’s holding in that case. See Anderson
v. Consol. Rail Corp., 297 F.3d 242, 248
(3d Cir. 2002).

-- 15 of 19 --

16
Because a rational trier of fact could not
find in Conoshenti’s favor, summary
judgment in favor of PSE&G on this claim
was appropriate.12
B. The New Jersey Pierce Claim
In Pierce v. Ortho Pharmaceutical
Corp., 417 A.2d 505, 512 (N.J. 1980), the
New Jersey Supreme Court recognized
that an at-will employee “has a cause of
action for wrongful discharge when the
discharge is contrary to a clear mandate of
public policy.” An employee can prove
such a wrongful discharge claim by
“show[ing] that the retaliation is based on
the employee’s exercise of certain
established rights, violating a clear
mandate of public policy.” MacDougall v.
Weichert, 677 A.2d 162, 168 (N.J. 1996).
“The sources of public policy include
le g i s la t i o n ; a d m i n i s tr a t iv e r u l e s,
regulations or decisions; and judicial
decisions.” Pierce, 417 A.2d at 512.
Furthermore, the New Jersey Supreme
Court has recognized that “federal law and
policy can constitute New Jersey’s clear
mandate of public policy.” D’Agostino v.
Johnson & Johnson, Inc., 628 A.2d 305,
312 (N.J. 1993). Whether a plaintiff has
established the existence of such a public
policy is an issue of law. Mehlman v.
Mobil Oil Corp., 707 A.2d 1000, 1012
(N.J. 1998). “A salutary limiting principle
is that the offensive activity must pose a
threat of public harm, not merely private
harm or harm only to the aggrieved
employee.” Id. at 1013. The public policy
must also be “clearly identified and firmly
grounded . . . . A vague, controversial,
unsettled, and otherwise problematic
public policy does not constitute a clear
mandate.” MacDougall, 677 A.2d at 167.
“[U]nless an employee at will identifies a
specific expression of public policy, he
may be discharged with or without cause.”
Pierce, 417 A.2d at 512.
Conoshenti contends that he is entitled
to recover under Pierce because he was
discharged in violation of a clear public
policy established by the FMLA,13 i.e., a
12Conoshenti asserted an additional
FMLA claim in the District Court based on
29 C.F.R. § 825.220(b), which provides
that “‘[i]nterfering with’ the exercise of an
employee’s rights would include . . .
manipulation by a covered employer to
avoid responsibilities under FMLA.” His
theory was that PSE&G’s alleged
assurances that he should take as long as
necessary to recover cons tituted
“manipulation” under § 825.220(b). While
Conoshenti’s briefing before us refers to
those assurances in support of his failure
to advise claim, it does not assign as error
the District Court’s rejection of his
“manipulation” claim. Accordingly, we
have no occasion to address the viability of
such a claim.
13At least one New Jersey court has
expressly held that the FMLA establishes
a clear mandate of public policy sufficient
to support a Pierce claim. See Hampton v.
Armand Corp., 834 A.2d 1077, 1081 (N.J.
Super. Ct. App. Div. 2003) (holding that a
Pierce claim may rely on the FMLA as a
source of public policy, but only if the

-- 16 of 19 --

17
policy of ensuring the job security of
employees who have serious health
conditions that require temporary leave. If
the record would support a finding that
Conoshenti was discharged because he
took FMLA leave, this might be a viable
theory, although it is not clear to us that a
Pierce claim in that event would be of any
additional benefit to him. As we have
held, however, the record will not support
a finding that Conoshenti was discharged
in retaliation for taking his FMLA leave.
We also conclude that Conoshenti
would not have a meritorious Pierce claim
based on the FMLA even if he were able
to show that the failure to advise him of
his FMLA rights caused him prejudice.
The Pierce doctrine is about wrongful
discharges, and it has only been applied
where the discharge itself offended a clear
public policy. Thus, all cases in which it
has been successfully advanced have
involved situations in which the discharge
was in retaliation for conduct supported by
the policy or for the employee’s exercise
of some established right. As the Supreme
Court of New Jersey explained in
MacDougall v. Weichert, 677 A.2d 162,
168 (N.J. 1996) (citations omitted):
In most cases of wrongful discharge,
the employee must show retaliation
that directly relates to an employee’s
resistance to or disclosure of an
employer’s illicit conduct. In some
cases, however, the employee may
show that the retaliation is based on
the employee’s exercise of certain
established rights, violating a clear
mandate of public policy.
Conoshenti was discharged for violating
the LCA and the conduct constituting that
violation, and that discharge, accordingly,
was unrelated to his having taken FMLA
leave. As a result, we predict that the New
Jersey Supreme Court would hold that
Conoshenti’s discharge did not give rise to
a Pierce claim even if it was preceded by
a failure to provide advice required by the
FMLA. The District Court’s summary
judgment on Conoshenti’s Pierce claim
will, accordingly, stand.
C. The NJLAD Claim
The NJLAD prohibits “any unlawful
discrimination against any person because
such person is or has been at any time
disabled or any unlawful employment
practice against such person, unless the
nature and extent of the disability
reasonably precludes the performance of
the particular employment.” N.J. Stat.
Ann. § 10:5-4.1. Further, the New Jersey
Administrative Code requires that an
“employer must make a reasonable
accommodation to the limitations of an
employee or applicant who is a person
with a disability, unless the employer can
demonstrate that the accommodation
plaintiff is an “eligible employee” under
the FMLA).
Conoshenti also asserts before us a
Pierce claim based on the NJLAD. He
expressly advised the District Court,
however, that his Pierce claim was based
solely on the FMLA and not on the
NJLAD. Accordingly, any Pierce claim
based on the NJLAD has been waived.

-- 17 of 19 --

18
would impose an undue hardship.” N.J.
Admin. Cod tit. 13, § 13-2.5. This duty to
accommodate, however, is subject to “an
exception . . . where it can reasonably be
determined that an . . . employee, as a
result of the individual disability, cannot
presently perform the job even with
reasonable accommodation.” N.J. Admin.
Code tit. 13, § 13-2.8(a).
Conoshenti claims that PSE&G violated
his rights under NJLAD by denying him a
reasonable accommodation. “Generally, a
p ri m a facie case of failure to
accommodate requires proof that (1) the
plaintiff had a LAD handicap; (2) was
qualified to perform the essential functions
o f t h e j o b , w i t h o r w i th o u t
accommodation; and (3) suffered an
adverse employment action because of the
handicap.” Bosshard v. Hackensack
University Medical Center, 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.
1998)).
The District Court first correctly ruled
that Conoshenti’s temporary disability
constituted a handicap under NJLAD. See
Soules v. Mount Holiness Mem. Park, 808
A.2d 863, 865-66 (N.J. Super. Ct. App.
Div. 2002) (holding that a “temporary
inability to work while recuperating from
surgery or injury is a handicap” under
NJLAD); see also Viscik v. Fowler Equip.
Co., 800 A.2d 826, 835 (N.J. 2002) (noting
that “[t]he term ‘handicapped’ in LAD is
not restricted to ‘severe’ or ‘immutable’
disabilities and has been interpreted as
significantly broader than the analogous
provision of the A mericans w ith
Disabilities Act (ADA)”).
As to the second element, however, the
District Court found that, as of the end of
his FMLA-protected leave, Conoshenti
was unable to perform any of the functions
of his job. Accordingly, the District Court
concluded that the only reasonable
accommodation that would protect his
employment status as of that date would
have been a leave of absence. While
noting the existence of federal cases
recognizing a leave of absence as a
“reasonable accommodation” under the
ADA, the District Court nevertheless held
that a leave of absence was not a
reasonable accommodation under the
NJLAD. It did not err in so holding.
As we have noted, the New Jersey
Adm inistrative C ode provides an
exception to an employer’s obligation to
provide a reasonable accommodation
“where it can reasonably be determined
that an applicant or employee, as a result
of the individual’s disability, cannot
presently perform the job even with
reasonable accommodation.” N.J. Admin.
Code tit. 13, § 13-2.8(a) (emphasis added).
This provision of the New Jersey
regulation reflects a significant difference
between the ADA and NJLAD. While the
ADA applies to employees “who, with or
without reasonable accommodation, can
perform the essential functions of the
employment position that such individual
holds or desires,” 42 U.S.C. § 12111(8)
(emphasis added); see also 29 C.F.R. §
1630.2(m), NJLAD protects only an
employee who can presently perform the

-- 18 of 19 --

19
essential functions of his job with or
without the reasonable accommodation.
The NJLAD regulation thus requires that
the handicapped employee be able to
perform the essential functions of his job
during the application of the reasonable
accommodation – that is, at the same time
that the reasonable accommodation is
being implemented. The ADA, however,
does not contain any such temporal
requirement. Accordingly, the federal
courts that have permitted a leave of
absence as a reasonable accommodation
under the ADA have reasoned, explicitly
or implicitly, that applying such a
reasonable accommodation at the present
time would enable the employee to
perform his essential job functions in the
near future. See, e.g., Criado v. IBM
Corp., 145 F.3d 437, 444 (1st Cir. 1998)
(“Criado offered evidence tending to show
that her leave would be temporary and
would allow her physician to design an
effective treatment program.”). That
reasoning is precluded under NJLAD
because of the present performance
exception.
We decline to hold that a temporary
leave of absence must be granted under
NJLAD to reasonably accommodate a
handicapped employee’s inability to
presently perform the essential functions
of his job. Such a holding would
effectively defeat the application of the
present performance exception. Requiring
PSE&G to grant Conoshenti a leave of
absence as an accommodation following
his FMLA leave would not have enabled
him to presently perform his job; rather, it
would have excused Conoshenti from
present performance contrary to the
explicit requirements of the NJLAD
regulation. We are confident that the New
Jersey Supreme Court would not sanction
such a conflict. We will therefore affirm
the District Court’s grant of summary
judgment in favor of PSE&G on
C o n o s h e n t i ’ s N J L A D f a i l u r e - t o -
accommodate claim.
V. Conclusion
The judgment of the District Court will
be reversed insofar as it granted summary
judgment to PSE&G on Conoshenti’s
FMLA failure to advise claim. It will be
affirmed in all other respects. This matter
will be remanded to the District Court for
further proceedings consistent with this
opinion.

-- 19 of 19 --