                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 11-1736


                                JADWIGA WARWAS,
                                             Appellant

                                           v.

                               CITY OF PLAINFIELD


                    On Appeal from the United States District Court
                             for the District of New Jersey
                              (D. C. No. 2-07-cv-04431)
                      District Judge: Honorable Jose L. Linares


                       Submitted under Third Circuit LAR 34.1(a)
                                   on April 27, 2012

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

                             (Opinion filed: July 25, 2012)


                                     OPINION

ROTH, Circuit Judge:

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

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


       *Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
asserting her First Amendment petition rights. The District Court entered summary

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

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

I. Background

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

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

analysis.

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

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

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

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

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

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

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

granted the FMLA leave.

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

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

job she had with the City of Paterson, New Jersey. 1 When Plainfield discovered this, it

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



       1
        Warwas asserts that during her interview she informed Plainfield about the part-
time position as a Quality Assurance Coordinator. Plainfield denies knowledge of
Warwas’s part-time employment.

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

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

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

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

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

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

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

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

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

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

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

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

official written reprimand. Neither party appealed the decision.

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

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

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

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

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


       2
        Plainfield’s Municipal Code prohibits employees from engaging in outside
employment “without the prior and continued approval of the Department Director.”
       3
         In reaching this conclusion, the ALJ found that Warwas disclosed her part-time
position with Paterson and that no Plainfield official either objected to her continued
employment or required her to abandon it as a condition of employment with the City.

                                            3
week, Plainfield issued a preliminary notice of disciplinary action. Warwas never

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

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

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

Warwas. She appealed.

II. Discussion

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

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

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

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

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

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

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

       A. FMLA Interference Claim

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

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

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

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

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

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

unbecoming an employee because she engaged in and received compensation for

secondary employment while utilizing paid sick time.

                                             4
       Despite Warwas’s arguments that her FMLA claim is not precluded, we need not

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       The record clearly indicates that Plainfield terminated Warwas for reasons entirely

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

                                              5
Plainfield believed Warwas failed to use FMLA leave for the intended purpose when,

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

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

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

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

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

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

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

summary judgment was appropriate on this claim. 4

       B. First Amendment Retaliation Claim

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

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

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

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

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

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

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

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

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



       4
         Warwas also contends that Plainfield failed to advise her of its policy regarding
outside employment during FMLA leave and, in doing so, interfered with her FMLA
rights. We find this argument without merit.

                                             6
activity involved a matter of public concern. Borough of Duryea, Pa. v. Guarnieri, __

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

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

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

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

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

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

will affirm the District Court’s entry of summary judgment on this claim. 5

III. Conclusion

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




      5
         Warwas also asserts that the District Court erred because it improperly applied
the summary judgment standard by resolving disputed issues of material fact in favor of
Plainfield. We find this argument without merit.

                                            7
