                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

Sarnowski v. Air Brooke Limousine
Precedential or Non-Precedential: Precedential

Docket No. 06-2144




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-2144


              JAMES SARNOWSKI,

                                   Appellant

                           v.

         AIR BROOKE LIMOUSINE, INC.



   On Appeal from the United States District Court
           for the District of New Jersey
              (D.C. No. 03-cv-04930)
       District Judge: Dennis M. Cavanaugh



             Argued on March 26, 2007


Before: FISHER, JORDAN and ROTH, Circuit Judges

         (Opinion filed December 12, 2007)
Andrew M. Moskowitz, Esquire (ARGUED)
Neil H. Deutsch, Esquire
Deutsch, Atkins, P. C.
25 Main Street, Suite 104
Court Plaza North
Hackensack, NJ 07601

           Counsel for Appellant


Kevin Kovacs, Esquire (ARGUED)
10 East Cliff Street
P. O. Box 875
Somerville, NJ 08876

           Counsel for Appellee


Lynn S. McIntosh, Esquire (ARGUED)
Office of the Solicitor
United States Department of Labor
Room N-2716
200 Constitution Avenue, N. W.
Washington, DC 20210

           Counsel Amicus-Appellant



                    OPINION
ROTH, Circuit Judge:

       James Sarnowski was terminated by his employer, Air
Brook Limousine, Inc. Sarnowski claims that his termination
violated the Family Medical Leave Act of 1993 (FMLA), 29
U.S.C. § 2601, et seq.; the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1, et seq.; and the New
Jersey Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1, et seq. The District Court granted summary
judgment in favor of Air Brook on all three claims. For the
reasons set forth below, we will affirm the judgment of the
District Court on the CEPA claim but vacate the judgments on
the claims under the FMLA and the LAD.

I. Background

       In July 2001, Air Brook, a company that provides
limousine, van, and charter bus services, hired Sarnowski as a
service manager with responsibilities that included the
maintenance of Air Brook’s vehicles. Sarnowski’s initial
performance evaluations were very good. In June 2002, he
received a favorable review and a salary increase.

        Sarnowski suffers from Coronary Artery Disease and
Wolff-Parkinson-White syndrome (an abnormal electrical
communication in the heart which causes episodes of rapid heart
rate), with which he was diagnosed after suffering a heart attack
in 1992. In October 2002, Sarnowski underwent quintuple
coronary artery bypass surgery after a coronary angiogram
revealed several blockages. He was hospitalized for about one

                               3
week and remained out of work for approximately a month and
a half.

       In December 2002, Sarnowski received a written warning
regarding performance issues. He was told that, although his
performance had been excellent at first, it had reached
unacceptable levels in the weeks leading up to and following his
hospitalization and leave. Sarnowski was urged to improve his
performance and to speak with his supervisors regarding any
problems he might be having.

        The following spring, Sarnowski began experiencing
heart palpitations. On April 7, 2003, a coronary angiogram
revealed four more blocked arteries. Sarnowski’s doctors
advised him that he would need to wear a heart monitor for
thirty days and that, depending on the results, he might need
further heart surgery. Sarnowski maintains that he then advised
his immediate supervisor that his doctors had found four more
blockages, that he was going to have to undergo medical
monitoring, and that he might need to take an additional six
weeks off for further heart surgery. Ultimately, the heart
monitor did reveal that Sarnowski would need further surgery.

        Sarnowski was terminated on April 15, 2003 – after he
claims that he had informed his supervisor of the monitor and of
the possible need for further surgery, but before he had learned
that the need for surgery was definite. Air Brook maintains that
Sarnowski was terminated for performance-related reasons.

      On October 17, 2003, Sarnowski filed a complaint in the
United States District Court for the District of New Jersey,

                               4
claiming that Air Brook had violated the FMLA,1 the LAD and
the CEPA. On December 20, 2005, the District Court granted
summary judgment to Air Brook on all of Sarnowski’s claims.
Sarnowski appealed.

II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction over
Sarnowski’s claim under the FMLA pursuant to 28 U.S.C. §
1331 and subject matter jurisdiction over his state law claims
pursuant to 28 U.S.C. § 1367. We exercise jurisdiction over this
appeal of a final order granting summary judgment pursuant to
28 U.S.C. § 1291.

       Our review of the District Court's grant of summary
judgment is plenary. We apply the same test as a district court
applies initially. Anderson v. Consol. Rail Corp. 297 F.3d 242,
246 (3d Cir. 2002). Summary judgment may be granted “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The moving party has the burden of
demonstrating the absence of a genuine issue of material fact,
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the

record is construed in the light most favorable to the

   1
    Initially, Sarnowski filed two claims under the FMLA. He
later withdrew, with prejudice, his claim for failure to reinstate.
Only one claim under the FMLA continues in dispute.

                                5
non-moving party. Anderson, 297 F.3d at 247.

III. Discussion

       A. Interference with Rights under the FMLA

       The FMLA grants eligible employees the right to take up
to twelve workweeks of leave in any twelve-month period if a
“serious health condition . . . makes the employee unable to
perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). The FMLA also provides that it shall
be unlawful for an employer to interfere with, restrain, or deny
an employee’s exercise of or attempt to exercise that right. 29
U.S.C. § 2615(a)(1). In order to assert a claim of interference,
an employee must show that he was entitled to benefits under
the FMLA and that his employer illegitimately prevented him
from obtaining those benefits. See Callison v. City of
Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Sarnowski
claims that Air Brook interfered with his rights under the FMLA
by terminating him after learning that he would need medical
monitoring and might need another six weeks off for additional
heart surgery. The District Court granted summary judgment
against Sarnowski on his FMLA interference claim on the
ground that Sarnowski was not entitled to benefits under the
FMLA because he did not submit a formal request for leave
under Air Brook’s FMLA policy. Sarnowski v. Air Brook
Limousine, Inc., No. 03-4930, 2005 WL 3479685, at *2 (D.N.J.
Dec. 20, 2005).


       As a general matter, the District Court was correct that,

                               6
for Sarnowski to have been entitled to benefits under §
2612(a)(1)(D) for his 2003 heart problems, he must have
provided notice to Air Brook of his need for leave. An
employee seeking leave under § 2612(a)(1)(D) “shall provide
the employer with not less than 30 days' notice, before the date
the leave is to begin, of the employee's intention to take leave
under such subparagraph, except that if the date of the treatment
requires leave to begin in less than 30 days, the employee shall
provide such notice as is practicable.”            29 U.S.C. §
2612(e)(2)(B). Sarnowski does not dispute that he was required
to provide Air Brook with notice. Rather, the dispute in this
appeal is whether the notice Sarnowski did provide was legally
sufficient to entitle him to benefits under the FMLA.

       The regulations provide some guidance as to what sort of
notice is sufficient. It is clear that an employee need not give
his employer a formal written request for anticipated leave.
Simple verbal notification is sufficient:

              An employee shall 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.
       The employee need not expressly assert rights
       under the FMLA or even mention the FMLA . . ..

29 C.F.R. § 825.302(c). See also Manuel v. Westlake Polymers
Corp., 66 F.3d 758, 764 (5th Cir. 1995). The issue is whether
the employee has “state[d] a qualifying reason for the needed
leave.” 29 C.F.R. § 825.208(a)(2). Moreover, the regulations
are clear that employees may provide FMLA qualifying notice

                               7
before knowing the exact dates or duration of the leave they will
take. For instance, an employee must “make a reasonable effort
to schedule the treatment so as not to disrupt unduly the
operations of the employer . . ..” 29 U.S.C. § 2612(e)(2)(A).
Thus, an employee who needs medical treatment may inform his
employer of his need for leave before scheduling the treatment
so as to reasonably accommodate the needs of the employer.
Additionally, the 30-day statutory notice requirement is
designed to be flexible, and an employee is not required to give
greater notice than is “practicable”. 29 U.S.C. § 2612(e)(2)(B).

        Other courts have interpreted this notice requirement with
the liberal construction that is suggested by the text. The Sixth
Circuit Court of Appeals has held that “[t]he right to actually
take twelve weeks of leave pursuant to the FMLA includes the
right to declare an intention to take such leave in the future.”
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th
Cir. 2001). To determine when an employee’s intention to take
leave has been sufficiently conveyed to his employer so as to
constitute requisite notice under the FMLA, the court found it
useful to employ the following test:

       [T]he critical test for substantively-sufficient
       notice is whether the information that the
       employee conveyed to the employer was
       reasonably adequate to apprise the employer of
       the employee's request to take leave for a serious
       health condition that rendered him unable to
       perform his job.




                                8
Brenneman v. MedCentral Health Sys., 366 F.3d 412, 421 (6th
Cir. 2004), cert. denied, 543 U.S. 1146 (2005). This test is
nearly identical to one adopted by the Fifth Circuit Court of
Appeals:

       The critical question is whether the information
       imparted to the employer is sufficient to
       reasonably apprise it of the employee's request to
       take time off for a serious health condition.

Manuel, 66 F.3d at 764.

       In providing notice, the employee need not use any magic
words. The critical question is how the information conveyed
to the employer is reasonably interpreted. An employee who
does not cite to the FMLA or provide the exact dates or duration
of the leave requested nonetheless may have provided his
employer with reasonably adequate information under the
circumstances to understand that the employee seeks leave
under the FMLA. The Eighth Circuit Court of Appeals
implicitly adopted this position when it stated that “[i]n order to
benefit from the protections of the statute, an employee must
provide his employer with enough information to show that he
may need FMLA leave.” Woods v. DaimlerChrysler Corp., 409
F.3d 984, 990 (8th Cir. 2005) (emphasis added). This approach
to the notice requirement is a sensible one. It benefits
employers if employees are encouraged to apprise their
supervisors of an anticipated need for leave. Such openness
maximizes’ employers’ ability to plan their staffing needs.




                                9
        Indeed, where courts have found notice to be deficient,
it has been because the employee failed to convey the reason for
needing leave. See, e.g., Seaman v. CSPH, Inc., 179 F.3d 297,
302 (5th Cir. 1999) (finding inadequate notice where employee
never informed his supervisor of a serious medical condition);
Brenneman, 366 F.3d at 423-24 (finding inadequate notice
where employee did not explain that his absence had been due
to a serious medical condition until after the fact); Woods, 409
F.3d at 992-93 (finding inadequate notice where employee
expressed that he was stressed and felt his health was at risk but
never provided any information to indicate that his absence from
work was due to a serious health condition).

        We have concluded that, when the facts are viewed in the
light most favorable to Sarnowski, Air Brook had sufficient
notice of Sarnowski’s intent to take leave to bar Air Brook from
interfering with Sarnowski’s rights under the FMLA.
Sarnowski, a man with chronic heart problems, had missed
approximately six weeks of work for quintuple coronary artery
bypass surgery. He informed his supervisor of his need for
monitoring and possible additional surgery. He was not certain
that he would need surgery, but he conveyed what information
he had and made it clear to his employer that his health
problems were continuing. Eight days later, Sarnowski was
terminated. We conclude that, based on the factual record as
related by Sarnowski, Air Brook had sufficient notice of
Sarnowski’s need for leave to satisfy the notice requirements of
the FMLA.

      In so holding, we make no presumptions about whether
Sarnowski’s termination did in fact constitute prohibited

                               10
interference. First, the parties dispute the precise content of the
notice given. It will be for the trier of fact to resolve that
dispute. Second, the FMLA does not provide employees with
a right against termination for a reason other than interference
with rights under the FMLA. See 29 U.S.C. § 2614(a)(3)(B).
See also Throneberry v. McGehee Desha County Hosp., 403
F.3d 972, 977 (8th Cir. 2005); Bones v. Honeywell Int’l., Inc.,
366 F.3d 869, 877 (10th Cir. 2004); Arban v. West Publ’g Corp.,
345 F.3d 390, 401 (6th Cir. 2003). Even if it is ultimately
determined that Sarnowski gave legally sufficient notice, he will
not prevail on his interference claim if Air Brook can establish
that it terminated Sarnowski for a reason unrelated to his
intention to exercise his rights under the FMLA.

       B. New Jersey Law Against Discrimination

       In applying the LAD, the New Jersey anti-discrimination
law, courts use the same burden-shifting framework that the
Supreme Court adopted in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Andersen v. Exxon Co., U.S.A., 446
A.2d 486, 490 (N.J. 1982). To establish a prima facie case of
discrimination, the plaintiff must demonstrate by a
preponderance of the evidence that, inter alia, he is a member
of a protected class. Id. at 491. The LAD extends protection
against discrimination to an individual who suffers from a
disability. See N.J.S.A. 10:5-4.1. The District Court held that
Sarnowski could not demonstrate that he was disabled under the
LAD because he did not present expert medical evidence,




                                11
indicating that a handicap existed.       Sarnowski, 2005 WL
3479685, at *3.2

        This holding by the District Court misstates the standard
adopted in New Jersey in interpreting the LAD. The District
Court relied on Clowes v. Terminix Int’l, Inc., 538 A.2d 794
(N.J. 1988), in requiring expert testimony of a disability. In
Clowes, however, the New Jersey Supreme Court called for
“competent and legal evidence” to support the diagnosis of a
disability. Id. at 806. In Clowes, the court gave expert
testimony as an example of such evidence. In subsequent cases,
testimony by the plaintiff’s own treating physician has been held
to satisfy this “competent and legal evidence” requirement. See
Gaul v. AT & T, Inc., 955 F.Supp. 346, 349 (D.N.J. 1997)
(“Clowes simply required that a plaintiff put forth competent
medical evidence that he actually suffered from the ailment he
claims is his disability.”) In Taylor v. Phoenixville School Dist.,
184 F.3d 296, 308 n.3 (3d Cir. 1999), we have expressed our
approval of this reading of Clowes.


  2
    Physical conditions that courts have accepted as meeting the
LAD definition of disability include the aftermath of a heart
attack, Panettieri v. C. V. Hill Refrigeration, 388 A.2d 630, 634
(N.J. Super. Ct. App. Div. 1978); varicose veins, Nieves v.
Individualized Shirts, 961 F.Supp. 782, 796 (D.N.J. 1999); and
obesity which contributed to arthritis, a heart condition, and
obstructive lung disease, Viscik v. Fowler Equip. Co., 800 A.2d
826, 835-36 (N.J. 2002). Under this standard, Sarnowski’s
medical problems might well be found to satisfy the statutory
definition.

                                12
       Turning to the records that Sarnowski submitted to the
District Court, we conclude that there was sufficient information
on his medical condition – including records from his treating
doctors that catalogued his diagnoses with Coronary Artery
Disease and Wolff-Parkinson-White syndrome, his October
2002 bypass surgery, specific findings by his heart surgeons,
and the installation of an intracardiac defibrillator in his chest at
the end of April 2003 – to create an issue for the jury on
Sarnowski’s disability under LAD.3 The District Court should
not have granted summary judgment on this claim.

         C. New Jersey Conscientious Employee Protection
            Act

        The CEPA prohibits a New Jersey employer from taking
“retaliatory action” against an employee who objects to “any
activity, policy or practice which the employee reasonably
believes” is in violation of applicable law.            N.J.S.A.
34:19-3(c)(1). To prevail on a claim under this provision, a
plaintiff must establish that (1) he reasonably believed that his
employer's conduct was violating a law or rule or regulation
promulgated pursuant to law, (2) he objected to the conduct,
(3) an adverse employment action was taken against him, and
(4) a causal connection exists between the whistleblowing

     3
      In determining that Sarnowski has provided sufficient
information on his medical condition to escape summary
judgment against him on this claim, we are not deciding that he
has met the other elements of a LAD claim, in particular the
need to demonstrate that he was performing his job at a level
that met his employer’s legitimate expectations.

                                 13
activity and the adverse employment action.          Dzwonar v.
McDevitt, 828 A.2d 893, 900 (N.J. 2003).

        Sarnowski alleges that Air Brook violated five separate
federal transportation regulations. Sarnowski states that, the day
before he was terminated, he complained to his supervisor of
two of these violations, regarding malfunctioning brake lights
and a flat tire. The incidents he reported involved disagreements
about how best to deal with two minor mechanical bus
problems. Sarnowski’s complaints regarding Air Brook’s other
violations occurred long before his date of termination. When
we view these incidents, they are either too minor or too far-
removed from the date of termination for there to be, as a matter
of law, a causal connection between the “whistleblowing”
activity and the termination. Moreover, we find no pattern of
antagonism that might otherwise suggest a connection. See
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.
1997). The District Court did not err in granting summary
judgment in favor of Air Brook on this claim.

IV. Conclusion

       For the foregoing reasons, the judgment of the District
Court on the CEPA claim will be affirmed. The judgments on
the FMLA and NJLAD claims will be vacated and the case
remanded to the District Court for further proceedings consistent
with this opinion.




                               14
