                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2004

Conoshenti v. Pub Ser Elec & Gas
Precedential or Non-Precedential: Precedential

Docket No. 03-2257




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                        PRECEDENTIAL     Attorneys for Appellant

  IN THE UNITED STATES COURT            Patrick Westerkamp (Argued)
           OF APPEALS                   Public Service Electric &
      FOR THE THIRD CIRCUIT              Gas Company
                                        80 Park Plaza – T5E
                                        Newark, NJ 07101-0570
              NO. 03-2257                Attorney for Appellee


       RICHARD CONOSHENTI
             Appellant                        OPINION OF THE COURT

                   v.

    PUBLIC SERVICE ELECTRIC
        & GAS COMPANY                   STAPLETON, Circuit Judge:
                                           Appellant Richard Conoshenti alleges
                                        that his employment with Public Service
   On Appeal From the United States
                                        Electric and Gas Company (“PSE&G”)
              District Court
                                        was terminated in violation of the Family
      For the District of New Jersey
                                        and Medical Leave Act of 1993, 29 U.S.C.
  (D.C. Civil Action No. 01-cv-04611)
                                        § 2601 et seq., (“FMLA”), New Jersey
District Judge: Hon. Joseph A.
                                        public policy under Pierce v. Ortho
          Greenaway, Jr.
                                        Pharmaceutical Corp., 84 N.J. 58, 72, 417
                                        A.2d 505, 512 (N.J. 1980), and the New
                                        Jersey Law Against Discrimination, N.J.
        Argued January 26, 2004
                                        Stat. Ann. § 10:5-1 et seq., (“NJLAD”).
                                        The District Court granted summary
  BEFORE: NYGAARD, FUENTES
                                        judgment in favor of PSE&G on all of
   and STAPLETON, Circuit Judges
                                        Conoshenti’s claims. We will reverse the
                                        District Court’s judgment with respect to
(Opinion Filed: April 13, 2004)
                                        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.
Gerald J. Resnick (Argued)
Andrea Rachiele                             I. Facts and Procedural History
Deutsch & Resnick
                                           Richard Conoshenti was employed as a
One University Plaza - Suite 305
                                        First Grade Mechanic with PSE&G since
Hackensack, NJ 07601
1972. In April and May 1999, PSE&G                  entered into the LCA, to December 3,
accused him of keeping inaccurate time              1999, Conoshenti performed each of his
records and leaving his shift early to take         obligations and was n ot warned,
a shower. Conoshenti denied keeping                 reprimanded, or fired for any improper
inaccurate records, claiming that he was            conduct. On December 4, 1999, however,
merely engaged in the accepted practice of          wh ile outside the scope of his
correcting times that were inappropriately          employment, Conoshenti was struck by an
recorded. As for leaving his shift early,           automobile and sustained a serious injury
Conoshenti claimed that he had been                 that required hospitalization. Shortly
working with chemicals that irritated his           thereafter, on December 6, 1999,
skin, and that a shower was necessary.              Conoshenti informed his boss at PSE&G
Nevertheless, on May 21, 1999, PSE&G                of his accident and the seriousness of his
made a decision to discharge him for these          injuries. He also informed his boss that his
violations of company policy.                       physician had indicated that he would need
                                                    to be out of work for at least two weeks in
   Upon the advice of Conoshenti’s union,
                                                    order to recover. 2 PSE&G did not notify
and because he was willing to accept
                                                    Conoshenti at that time, or at any time
blame to keep his job,1 he agreed to enter
                                                    thereafter, of his rights under the FMLA.3
into a Last Chance Agreement (“LCA”).
Under the LCA, PSE&G agreed that
C ono shen ti wo uld be reinsta ted,                   2
                                                        Additionally, the record indicates that
conditioned upon his satisfactory                   on December 8, 1999, PSE&G received a
performance of each of the obligations              note from Conoshenti’s physician, Dr.
outlined in a letter dated August 10, 1999.         Edward A. Somma, dated December 6th,
These obligations included: taking and              indicating that Conoshenti would require
passing a physical examination, reporting           fourteen days of bedrest and medication
to work every day and on time,                      and that he could return to work on
m a i n t a in i n g sa tis fa cto ry w o r k       December 20, 1999. App. at 233a-34a.
performance, and maintaining a clean
                                                           3
safety record. Conoshenti understood that                 During proceedings in the District
if he were to violate any of these                  Court, PSE&G had claimed that it
requirements, such violation would                  informed Conoshenti of his rights under
automatically constitute just cause for his         the FMLA by letter dated December 15,
immediate discharge.                                1999. Conoshenti claimed never to have
                                                    received that letter. At oral argument on
  From August 10, 1999, the date he
                                                    the parties’ cross-motions for summary
                                                    judgment, however, PSE&G accepted, for
                                                    purposes of summary judgment, that no
      1
      Conoshenti continues to dispute,              notice had been sent to Conoshenti on
however, the truth of the PSE&G’s                   December 15, 1999 or at any other time.
charges.                                            PSE&G also stipulated for purposes of this

                                                2
In particular, Conoshenti was not told that       December 20th, that cited Conoshenti’s
he was entitled, under the FMLA, to               absence on December 6th and the
twelve weeks of protected leave. He was           subsequent ten days as the reason for his
also not told that the leave he was using         discharge. App. at 237a. This letter,
would be considered FMLA leave.                   however, was not signed and was never
                                                  sent.
   On December 16, 1999, Conoshenti met
with an orthopedic surgeon, Dr. Alexander            Meanwhile, Conoshenti had become
P. Russoniello, who diagnosed him with            concerned about his job security and
torn rotator cuffs and recommended                therefore contacted his union to determine
immediate surgery. The surgery was                what he needed to do to protect himself.
scheduled for early January 2000.                 The union advised him to notify PSE&G
Conoshenti notified PSE&G of his plan to          that he desired to have his leave counted as
undergo the surgery and was told to take          FMLA leave. Following this advice,
time to recuperate. On December 17th, he          Conoshenti, on December 27, 1999, sent a
sent PSE&G a form completed by Dr.                letter to his direct supervisor at PSE&G,
Russoniello that indicated his diagnosis          Bob Wasser, stating:
and that he would be unable to work until
                                                    I would like to request an immediate
approximately April 2000.
                                                    leave under the Family and Medical
   Thereafter, on or about December 20,             Leave Act. I am requesting this
1999, PSE&G began administrative steps              leave due to the fact that I was in an
to end Conoshenti’s employment for                  accident on December 4, 1999. If I
violating the LCA. These steps included             can provide any other information or
the preparation of a Recommendation for             doc tor notif ic a tion I wou ld
Disciplinary Action, which recommended              appreciate c ontact fro m th e
that Conoshenti be discharged because he            company.
“was unavailable for work on 12/6/99 and
                                                  App. at 73a. That same day, Wasser made
the following 9 work days, a violation of
                                                  the following handwritten notation:
his ‘Last Chance Agreement.’” App. at
236a. The recommendation was approved               Conoshenti called and stated that he
by several PSE&G officers on December               wanted a “family medical leave.” I
20th, but no action was taken. PSE&G                responded by saying that I would
also drafted a termination letter, dated            research it for him and call him back.
                                                    [I] called J. Tiberi 4 and discussed.
                                                    Initially the discharge was to be
appeal that “a letter dated December 15,            executed through the mail, effective
1999 (238a - 240a) was neither sent by
PSE&G, nor received by Mr. Conoshenti.
                                                    4
(358a - 359a).” Appellee’s Br. at 6 n.4.             J. Tiberi was the signatory for PSE&G
                                                  on the LCA.

                                              3
  1-01-00[.]     [W]hen I mentioned              required by PSE&G. It was Conoshenti’s
  “family leave” Tiberi said he would            understanding that passing the physical
  call [redacted]. Tiberi paged me ½             examination was the only condition placed
  hour later. I called and was informed          on his returning to work. Also on April
  by Tiberi that we must hold off on             12, 199 9, PS E& G re initiated
  the discharge, because: He is entitled         administrative steps to end Conoshenti’s
  to benefits while he is on disability.         employment for violation of the LCA. On
  It is against the law to discharge             April 17, 1999, Conoshenti reported for
  under these conditions. Tiberi said            work. After one hour on the job, however,
  that he will be discharged upon his            he was called into his supervisor’s office
  return to work 1st day back.                   and told he was being terminated for
                                                 violation of the LCA. The termination
App. at 246a. Conoshenti then underwent
                                                 letter stated, in part:
surgery for his torn rotator cuff in early
January 2000. Thereafter, Conoshenti’s             On December 6, 1999, you were
doctors periodically updated PSE&G on              unable to report to work as a result
his condition. Conoshenti claimed that             of being involved in a motor vehicle
throughout his recovery, he was told by            accident. Subsequently, you were
several different people at PSE&G,                 out of work for 92 days, a violation
including Wasser, to take his time                 of the terms and conditions of your
recovering and to not hurry back until he          “Last Chance Agreement.” As a
was “100%.”       App. at 294a, 295a.              result of your failure to comply with
Conoshenti also claimed that he was                the terms and conditions of this
assured that “light duty” would be                 agreement, your employment with
available to him when he was able to               Public Service Electric and Gas
return to work. App. at 295a.                      Company is being terminated April
                                                   17, 2000.
    On March 28, 2000, Dr. Russoniello
authorized Conoshenti to return to work          App. at 269a.
for “desk duty” as of April 3, 2000, and
                                                   It is undisputed that Conoshenti’s
Conoshenti, in turn, notified PSE&G of his
                                                 absence from work exceeded the twelve
ability to return to work.         PSE&G
                                                 weeks of leave that are protected by the
informed him, however, that the facility
                                                 FMLA. If Conoshenti’s protected leave
where he worked could not accommodate
                                                 were considered to have begun on
desk duty and that his return to work
                                                 December 6, 1999, the twelve week period
would have to be delayed until his doctor
                                                 would have expired on March 1, 2000.
cleared him for full active manual labor.
                                                 Even if the twelve week period were
In April 2000, Conoshenti’s doctor
                                                 considered to have begun on December 27,
authorized his return to unrestricted work
                                                 1999, the protected period would have
duty. On April 12, 2000, Conoshenti took
                                                 expired on M arch 19, 2000.
and passed a physical examination

                                             4
   After his discharge, Conoshenti and his                      II. Discussion
union filed a grievance and the case was
                                                     Conoshenti argues that the District
arbitrated pursuant to the LCA. Although
                                                  Court erred in granting PSE&G’s motion
the arbitrator noted that the LCA was very
                                                  for summary judgment and denying his
stringent and possibly even “draconian,”
                                                  own motion for summary judgment. We
he nevertheless found that Conoshenti had
                                                  review the District Court’s grant of
violated its terms and therefore denied the
                                                  summary judgment de novo. American
grievance.
                                                  Medical Imaging Corp. v. St. Paul Fire &
   Conoshenti then filed a complaint              Marine Ins. Co., 949 F.2d 690, 692 (3d
against PSE&G in the Superior Court of            Cir.1991).       Summary judgment is
New Jersey, Union County. Counts One              appropriate if there are no genuine issues
and Two of the complaint alleged                  of material fact presented and the moving
violations of NJLAD.        Count Three           party is entitled to judgment as a matter of
alleged that Conoshenti had been                  law. Fed. R. Civ. P. 56(c); Celotex Corp.
wrongfully discharged in violation of             v. Catrett, 477 U.S. 317, 322-23 (1986);
public policy under Pierce v. Ortho               Wisniewski v. Johns-Manville Corp., 812
Pharmaceutical Corp., 84 N.J. 58, 72, 417         F.2d 81, 83 (3d Cir. 1987). In determining
A.2d 505, 512 (N.J. 1980). Count Four             whether a genuine issue of fact exists, we
alleged violations of the FMLA. PSE&G             resolve all factual doubts and draw all
removed the case to the United States             reasonable inferences in favor of the
District Court for the District of New            nonmoving party. Suders v. Easton, 325
Jersey.                                           F.3d 432,       435 n.2 (3d Cir. 2003).
                                                  “Although the initial burden is on the
   Conoshenti and PSE&G filed cross-
                                                  summary judgment movant to show the
motions for summary judgment. The
                                                  absence of a genuine issue of material fact,
District Court granted summary judgment
                                                  ‘the burden on the moving party may be
in favor of PSE&G on all of Conoshenti’s
                                                  discharged by ‘‘showing’’ – that is,
claims. This timely notice of appeal
                                                  pointing out to the district court – that
followed.5
                                                  there is an absence of evidence to support
                                                  the nonmoving party’s case’ when the
                                                  nonmoving party bears the ultimate burden
     5
      The District Court had jurisdiction         of proof.” Singletary v. Pennsylvania
under 28 U.S.C. § 1331 (2001) because the         Dept. of Corrections, 266 F.3d 186, 192
case involved a federal question, and             n.2 (3d Cir. 2001) (quoting Celotex, 477
removal was proper under 28 U.S.C. §
1441(b) (2001). The District Court had
supplemental jurisdiction over the New            (2001) because the District Court’s order
Jersey state law claims under 28 U.S.C. §         granting summary judgment to PSE&G on
1367 (2001). We have jurisdiction over            all claims was a final decision.
this appeal pursuant to 28 U.S.C. § 1291

                                              5
U.S. at 325).                                        employee returns from an FMLA leave,
                                                     the employee is entitled to be reinstated to
A. Family and Medical Leave Act Claims
                                                     his or her former position, or an equivalent
   The stated purposes of the FM LA are to           one. 29 U.S.C. § 2614(a)(1). This right to
“balance the demands of the workplace                reinstatement is qualified by a statutory
with the needs of families” and “to entitle          directive that it does not entitle a restored
employees to take reasonable leave for               employee to a right, benefit or position to
medical reasons.” 29 U.S.C. § 2601(b)(1)             which the employee would not “have been
and (2). The FMLA seeks to accomplish                entitled had the employee not taken the
these purposes “in a manner that                     leave.” 29 U.S.C. § 2614(a)(3)(B). Thus,
accommodates the legitimate interests of             for example, if an employee is discharged
employers.” 29 U.S.C. § 2601(b)(3). In               during or at the end of a protected leave
furtherance of these objectives, the FMLA            for a reason unrelated to the leave, there is
requires that “an eligible employee shall be         no right to reinstatement. 29 C.F.R. §
entitled to a total of twelve workweeks of           825.216(a)(1).
leave during any twelve month period” if
                                                         In order to protect these substantive
the employee has a “serious health
                                                     rights, the FMLA proscribes an employer
condition that makes the employee unable
                                                     from engaging in certain acts. See 29
to perform the functions of the position of
                                                     U.S.C. § 2615. Section 2615(a)(1) makes
such emp loyee.”            29 U.S .C. §
                                                     it “unlawful for any employer to interfere
2612(a)(1)(D). 6        After an eligible
                                                     with, restrain, or deny the exercise of or
                                                     the attempt to exercise, any right provided
                                                     under this subchapter.” Section 2615(a)(2)
   6
     “The term ‘eligible employee’ means             makes it “unlawful for any employer to
an employee who has been employed – (i)
for at least 12 months by the employer
with respect to whom leave is requested              employee need not expressly assert rights
under section 2612 of this title; and (ii) for       under the FMLA or even mention the
at least 1,250 hours of service with such            FMLA”; rather the employee need only
employer during the previous 12-month                notify the employer that leave is needed.
period.” 29 U.S.C. § 2611(2)(A). “The                29 C.F.R. § 825.303(b).
term ‘serious health condition’ means an                     In this case, there is no dispute that
illness, injury, impairment, or physical or          Conoshenti was an eligible employee or
mental condition that involves – (A)                 that his injury qualified as a serious health
inpatient care in a hospital, hospice, or            condition. Moreover, as the District Court
residential medical care facility; or (B)            noted, it is undisputed that Conoshenti
continuing treatment by a health care                fulfilled his duty to notify under the
provider.” 29 U.S.C. § 2611(11). When                FMLA by informing PSE&G of his injury
an eligible employee needs to take FMLA              and need for time off within two days of
leave that was not foreseeable, “[t]he               his accident.

                                                 6
discharge or in any other manner                      hiring, promotions or disciplinary
discriminate against any individual for               actions; nor can FMLA leave be
opposing any practice made unlawful by                counted under “no fault” attendance
this subchapter.”     Finally, § 2615(b)              policies.
provides that “[i]t shall be unlawful for
                                                    29 C.F.R. § 825.220(c). The DOL’s
any person to discharge or in any other
                                                    regulations also provide that “[a]ny
manner discriminate against any individual
                                                    violations of the [FMLA] or of these
because such individual – (1) has filed any
                                                    regulations constitute interfering with,
charge, or has instituted or caused to be
                                                    restraining, or denying the exercise of
instituted any proceeding, under or related
                                                    rights provided by the Act.” 29 C.F.R. §
to this subchapter; (2) has given, or is
                                                    825.220(b).     “‘Interfering with’ the
about to give, any information in
                                                    exercise of an employee’s rights would
connection with any inquiry or proceeding
                                                    include, for example, not only refusing to
relating to any right provided under this
                                                    authorize FMLA leave, but discouraging
subchapter; or (3) has testified, or is about
                                                    an employee from using such leave. It
to testify, in any inquiry or proceeding
                                                    would also include manipulation by a
relating to any right provided under this
                                                    covered employer to avoid responsibilities
subchapter.” The FMLA grants employees
                                                    under FMLA.” 29 C.F.R. § 825.220(b).
a cause of action against employers who
                                                    Moreover, “[e]mployees cannot waive, nor
violate § 2615. See 29 U.S.C. § 2617.
                                                    may employers induce employees to
  In addition, the United States                    waive, their rights under FMLA.” 29
Department of Labor (“DOL”) has                     C.F.R. § 825.220(d).
promulgated regulations implementing the
                                                       Finally, the DOL’s regulations impose
FMLA, as authorized by 29 U.S.C. § 2654.
                                                    upon the employer obligations to
Of particular significance here, §
                                                    communicate with employees regarding
825.220(c) of those regulations provides:
                                                    their rights under the FMLA. In particular,
  An employer is prohibited from                    the regulations require employers to
  discriminating against employees or               provide employees with individualized
  prospective employees who have                    notice of their FMLA rights and
  used FMLA leave. For example, if                  obligations. Pursuant to 29 C.F.R. §
  an employee on leave without pay                  825.208(a), “[i]n all circumstances, it is
  would otherwise be entitled to full               the employer’s responsibility to designate
  benefits (other than health benefits),            leave, paid or unpaid, as FMLA-
  the same benefits would be required               qualifying, and to give notice of the
  to be provided to an employee on                  designation to the employee . . . .” If an
  unpaid FMLA leave. By the same                    employer provides employees with a
  token, employers cannot use the                   handbook concerning employee benefits,
  taking of FMLA leave as a negative                “ the ha ndboo k m ust inc or po r a te
  factor in employment actions, such as             information on FMLA rights and

                                                7
responsibilities and the employer’s policies            1. The Failure to Advise Claim
regarding the FMLA.” 29 C.F.R. §
                                                      Conoshenti argues that PSE&G’s
825.301(a)(1). If the employer does not
                                                   failure to advise him of his right to twelve
provide such a handbook, such
                                                   weeks of FMLA leave, after he properly
information must be provided when an
                                                   gave notice of his serious health condition,
employee requests leave. 29 C.F.R. §
                                                   constituted an interference with his FMLA
825.301(a)(2). Moreover, each time the
                                                   right to that protected leave. Had he
employee requests leave, the employer
                                                   received the advice PSE&G was obliged to
must, within a reasonable time thereafter –
                                                   provide, Conoshenti insists, he would have
“one or two business days if feasible,”
                                                   been able to make an informed decision
“provide the employee with written notice
                                                   about structuring his leave and would have
detailing the specific expectations and
                                                   structured it, and his plan of recovery, in
obligations of the employee and explaining
                                                   such a way as to preserve the job
any consequences of a failure to meet
                                                   protection afforded by the Act. We
these obligations.”        29 C.F.R. §
                                                   conclude that this is a viable theory of
825.301(b)(1), (c). This specific notice
                                                   recovery and that the District Court
must include, among other things, whether
                                                   accordingly erred in granting summary
“the leave will be counted against the
                                                   judgment on it against Conoshenti.
employee’s a n n ua l F M L A l e ave
entitlement,” 29 C.F.R. § 825.301(b)(1)(i),           As we have noted, the parties stipulated
and “the employee’s right to restoration to        in the District Court that, for purposes of
the same or equivalent job upon return             summary judgment, PSE&G did not advise
from leave,” 29 C .F.R . §                         Conoshenti of his rights under the FMLA.
825.301(b)(1)(vii). Neither party in this          As we have also noted, the regulation
case has challenged the validity of these          under the FMLA imposed a duty on
regulations.                                       PSE&G to do so. It follows, we believe,
                                                   that Conoshenti will show an interference
   There are two arrows to Conoshenti’s
                                                   with his right to leave under the FMLA,
FMLA bow. He insists that the District
                                                   within the meaning of 29 U.S.C. §
Court erred in granting summary judgment
                                                   2615(a)(1), if he is able to establish that
against him because (1) PSE&G failed to
                                                   this failure to advise rendered him unable
advise him of his FMLA rights and
                                                   to exercise that right in a meaningful way,
thereby interfered with his ability to
                                                   thereby causing injury. Neither PSE&G in
meaningfully exercise his right to an
                                                   its brief nor the District Court in its
FMLA leave; and (2) PSE&G “use[d] the
                                                   opinion contest the theoretical basis for
taking of FMLA leave as a negative factor
                                                   this claim, and we believe that basis is
in” its decision to discharge him on April
                                                   supported by the relatively sparse authority
17, 2000. 29 C.F.R. § 825.220(c). We
                                                   relevant to the issue.
will address each of these independent
theories of liability in turn.                       In Ragsdale v. Wolverine World Wide,


                                               8
Inc., 535 U.S. 81 (2002), the Supreme              dispositive of anything before us. It is
Court had before it the FMLA regulations           helpful, however, because the Court found
requiring an employer to advise employees          “reasonable” Ragsdale’s suggestion that a
of FMLA rights. It was called upon to              failure to advise of FMLA rights could
determine the validity of a regulation, 29         constitute an interference with “an
C.F.R. § 825.770(a),7 which imposed a              employee’s exercise of basic FMLA rights
penalty on an employer who failed to               in violation of § 2615”:
advise that a leave taken by an employee
                                                     Section 825 .700(a), Ragsdale
w ould cou nt a ga in st h er F M LA
                                                     contends, reflects the Secretary’s
entitlement. Under this regulation, the
                                                     understanding that an employer’s
twelve week FMLA leave did not
                                                     failure to com ply with the
commence until this advice was given. In
                                                     designation requireme nt might
Ms. Ragsdale’s case, this would have
                                                     sometimes burden an employee’s
entitled her to 30 weeks of leave, even
                                                     exercise of basic FMLA rights in
though she could not show that she was in
                                                     violation of § 2615. Consider, for
any way prejudiced by the employer’s
                                                     instance, the right under § 2612(b)(1)
breach of duty. The Court struck down
                                                     to take intermittent leave when
this penalty provision, noting that it was
                                                     medically necessary. An employee
“unconnected to any prejudice the
                                                     who undergoes cancer treatments
employee might have suffered from the
                                                     every other week over the course of
employer’s lapse” and, accordingly,
                                                     12 weeks might want to work during
“ i n c o m p a tible wit h th e F M L A ’s
                                                     the off weeks, earning a paycheck
comprehensive remedial mechanism”
                                                     and saving six weeks for later. If she
which affords no relief absent prejudice
                                                     is not informed that her absence
from a statutory violation. Ragsdale, 535
                                                     qualifies as FMLA leave – and if she
U.S. at 88-89.
                                                     does not know of her right under the
    The Ragsdale Court expressly noted               statute to take intermittent leave –
that the validity of notice requirements of          she might take all 12 of her FMLA-
the regulations themselves was not before            guaranteed weeks consecutively and
it.     Accordingly, Ragsdale is not                 have no leave remaining for some
                                                     future emergency. In circumstances
                                                     like these, Ragsdale argues, the
   7
       Section 825.770(a) provided, in part:         employer’s failure to give the notice
          If an employee takes paid or               required by the regulation could be
          unp aid leave and the                      said to “deny,” “restrain,” or
          employer does not designate                “interfere with” the employee’s
          the leave as FMLA leave,                   exercise of her right to take
          the leave taken does not                   intermittent leave.
          count against an employee’s
                                                     This position may be reasonable, but
          FMLA entitlement.

                                               9
  the more extreme one embodied in §               outlining the F M L A ’s im portant
  825.700(a) is not. . . . [It] establishes        provisions and the employees’ FMLA
  an irrebuttable presumption that the             rights.   Her employer also failed to
  employee’s exercise of FMLA rights               prospectively designate her leave as
  was impaired – and that the                      FMLA leave in violation of 29 C.F.R. §§
  employee deserves 12 more weeks.                 825.208 and .700. Nusbaum took the
  There is no empirical or logical basis           leave required for her surgery, and was
  for this presumption, as the facts of            discharged during her absence. Nusbaum
  this case well demonstrate. Ragsdale             then brought suit, alleging that her
  has not shown that she would have                employer’s failure to notify her of her right
  taken less leave or intermittent leave           to twelve weeks of FMLA-protected leave,
  if she had received the required                 and her subsequent termination, interfered
  notice.                                          with her FMLA rights in violation of 26
                                                   U.S.C. § 2615(a)(1). The District Court
Ragsdale, 535 U.S. at 89-90. This portion
                                                   denied the employer’s motion to dismiss,
of the Ragsdale opinion, together with our
                                                   holding as follows:
own assessment of the reasonableness of
the notice regulations, persuades us that            [T]he purpose of the regulations
the Supreme Court would find an                      enacted by the DOL . . . is to ensure
actionable “interference” in violation of §          that employers allow their employees
2615(a) here in the event Conoshenti is              to make informed decisions about
able to show prejudice as a result of that           leave. . . . The overall intent of the
violation.                                           FMLA is lost when an employer fails
                                                     to provide an employee with the
   The District Court from which this
                                                     opportunity to make informed
appeal comes to us has previously
                                                     decisions about her leave options and
endorsed the theory of recovery
                                                     limitations.     Without such an
Conoshenti advances here. In Nusbaum v.
                                                     opportunity, the employee has not
CB Richard Ellis, Inc., 171 F. Supp. 2d
                                                     received the statutory benefit of
377, 379-80 (D.N.J. 2001), after plaintiff
                                                     taking necessary leave with the
Margot Nusbaum learned that she required
                                                     reassurance that her employment,
back surgery, she requested that her
                                                     under proscribed conditions, will be
employer allow her to take medical leave
                                                     waiting for her when she is able to
and also requested information regarding
                                                     return to work.
the employer’s medical leave policy. The
employer refused to provide this                   Id. at 385-86. The court concluded that
information. Moreover, Nusbaum never               Nusbaum “was, therefore, not given the
received any ma terials prov iding                 proper information that would have
information on FMLA leave and the                  allowed her to structure her leave in a way
employer had not complied with 29 U.S.C.           that would have left her protected by the
§ 2619’s requirement that it post a notice         FMLA.” Id. at 386. We find this

                                              10
reasoning of      the   Nusbaum      Court          Conoshenti then sent a letter to PSE&G on
persuasive.                                         December 27, 1999 stating that he “would
                                                    like to request an immediate leave under
   The District Court in Conoshenti’s case
                                                    the Family and Medical Leave Act.” App.
accepted his claim that the regulations
                                                    at 73a. Nothing in the record, however,
imposed a duty on PSE&G to advise him
                                                    indicates that Conoshenti knew that he was
of his FMLA rights and that a failure to do
                                                    entitled to only twelve weeks of protected
so could result in an “interference” under
                                                    leave. Rather, the record simply reflects
§ 2615(a)(1). It distinguished Nusbaum,
                                                    what Conoshenti was told to say and what
however, on the ground that Conoshenti
                                                    he did say. The summary judgment record
had proven no prejudice as required by
                                                    thus does not speak to Conoshenti’s
Ragsdale. In support of this conclusion,
                                                    knowledge of his relevant FMLA rights on
the Court first noted that “his ignorance of
                                                    December 27th or thereafter during his
the nature of his leave ended on December
                                                    leave.
27.”       A ccordingly, it held that
Conoshenti’s reliance on Nusbaum could                 Similarly, the summary judgment
only be used to delay the commencement              record, as the District Court correctly
of his twelve weeks of FMLA-protected               noted, contains no competent evidence
leave from December 6th to December                 regarding the alternatives that would have
27th; this would, in any event, have left           been available to Conoshenti had PSE&G
him unprotected by the FMLA before he               advised him of his rights when he
returned to work.         The Court then            requested leave on December 6th. Only
observed that Conoshenti had “presented             Conoshenti’s brief contains a statement of
no evidence that he could have made a               what he would have done had he been
different choice had PSE&G informed him             advised of his rights.8
that his FMLA leave began on December
6,” and made “only the bare assertion that
                                                        8
he could have made different decisions.”                  Conoshenti insists that his recovery
App. at 16a. We hold that the District              consisted of two phases: the initial
Court’s analysis is at odds with well-              recovery from the accident, and the
established principles governing the                subsequent recovery from the shoulder
propriety of summary judgments.                     surgery. If he had known that he could not
                                                    exceed twelve weeks of leave, he claims,
   The record indicates that in December
                                                    he could have explored the feasibility of
1999, Conoshenti contacted his union in
                                                    postponing the surgery to a subsequent
order to learn what he needed to do to
                                                    FMLA period. The record does contain
protect his job during his recovery. In
                                                    some support for Conoshenti’s assertion
response to this inquiry, the union advised
                                                    that he could have returned to work within
Conoshenti to inform PSE&G that he
                                                    twelve weeks without the shoulder
wanted his leave to be considered FMLA
                                                    surgery. Prior to Conoshenti’s visit with
leave. The record further indicates that
                                                    the orthopedic surgeon who recommended

                                               11
   While we agree with the District Court           that such a showing was material in any
that these gaps in the record required it to        way. Accordingly, we conclude that
deny Conoshenti’s motion for summary                PSE&G, as the moving party, did not
judgment, they clearly did not warrant the          satisfy its initial burden of pointing to an
grant of PSE&G’s motion. It is well                 absence of evidence as to whether
established that “a party seeking summary           Con oshe nti had been prejudiced.
judgment always bears the initial                   Conoshenti was therefore not required,
responsibility of informing the district            pursuant to Fed. R. Civ. P. 56(e), to
court of the basis for its motion, and              respond with specific facts establishing a
identifying those portions of ‘the                  genuine issue with respect to the prejudice
pleadings, depositions, answers to                  requirement. See Celotex Corp. v. Catrett,
interrogatories, and admissions on file,            477 U.S. at 322.
together with the affidavits, if any,’ which
                                                            2. The Discharge Claim
it believes demonstrate the absence of a
genuine issue of material fact.” Celotex               Subsection 825.220(c) of the FMLA
Corp. v. Catrett, 477 U.S. 317, 323 (1986)          regulations provides:
(quoting Fed. R. Civ. P. 56(c)). “With
                                                      An employer is prohibited from
respect to an issue on which the
                                                      discriminating against employees or
nonmoving party bears the burden of
                                                      prospective employees who have
proof,” “the burden on the moving party
                                                      used FMLA leave. For example, if
may be discharged by ‘showing’ – that is,
                                                      an employee on leave without pay
pointing out to the district court – that
                                                      would otherwise be entitled to full
there is an absence of evidence to support
                                                      benefits (other than health benefits),
the nonmoving party’s case.” Id. at 325.
                                                      the same benefits would be required
Here, PSE&G never asserted that
                                                      to be provided to an employee on
Conoshenti could not meet his burden of
                                                      unpaid FMLA leave. By the same
proving that he could have structured his
                                                      token, employers cannot use the
leave differently. Nor did PSE&G argue
                                                      taking of FMLA leave as a negative
that a showing of prejudice was an
                                                      factor in employment actions, such
essential element of Conoshenti’s claim or
                                                      as hiring, promotions or disciplinary
                                                      actions; nor can FMLA leave be
                                                      counted under “no fault” attendance
immediate surgery, the record indicates               policies.
that Conoshenti met with Dr. Edward A.
                                                       It is apparent from the face of §
Somma. Dr. Somma completed a doctor’s
                                                    825.220(c) that to be successful on this
note stating that Conoshenti would only
                                                    claim, Conoshenti must show that (1) he
require fourteen days of bed rest and
                                                    took an FMLA leave, (2) he suffered an
medication and that he could return to
                                                    adverse employment decision, and (3) the
work on December 20, 1999. App. at
                                                    adverse decision was causally related to
233a-34a.

                                               12
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
  9                                                whether the summary judgment record
   The circuits have taken diverging paths
                                                   reflects a material dispute of fact as to
in analyzing claims that an employee has
                                                   whether there was a causal connection
been discharged in retaliation for having
                                                   between the two.
taken an FMLA leave. Compare Arban v.
West Publish. Corp., 345 F.3d 390, 401               PSE&G insists that Conoshenti was
(6th Cir. 2003) (noting that such claims
arise from § 2615(a)(2)), and Smith v.
Diffee Ford-Lincoln-Mercury, Inc., 298             regulations (quoted above), which is found
F.3d 955, 960 (10th Cir. 2002) (same),             in a section implementing § 2615(a) of the
with Strickland v. Water Works & Sewer             statute that, as we have noted, makes it
Bd., 239 F.3d 1199, 1206 (11th Cir. 2001)          unlawful to interfere with, restrain or deny
(holding that such claims arise from §             any FMLA right. See Bachelder, 259 F.3d
2615(a)(1) and (2), as well as 9 C.F.R. §          at 1124. In Bachelder, the Ninth Circuit
825.220(c)), and King v. Preferred                 Court of Appeals rejected a challenge to
Technical Group, 166 F.3d 887, 891 (7th            the validity of that regulation. It did so by
Cir. 1999) (same), and Hodgens v.                  pointing out that § 2615(a) was patterned
General Dynamics Corp., 144 F.3d 151,              on § 8(a)(1) of the National Labor
159-60 (1st Cir. 1998) (same). All courts          Relations Act (“NLRA”), 29 U.S.C. §
that have considered such situations have          158(a)(1), which prohibits interference
concluded that such discharges violate the         with rights created by that Act. Citing
FMLA. Some have done so without                    NLRA cases, the Court reasoned that the
addressing the fact that retaliation for           DOL was reasonable in concluding that
taking an FMLA leave does not come                 employers utilizing the taking of FMLA
within the literal scope of the sections of        leave as a negative element in employment
the FMLA directed to retaliation: §                decisions would inevitably chill employees
2615(a)(2), making it unlawful to retaliate        in the exercise of those rights. 259 F.3d at
“against any individual for opposing any           1123-24. As we have noted, there is no
practice made unlawful by the [FMLA],”             challenge here to the validity of §
and § 2615(b), making it unlawful to               825.220(c).
retaliate against any individual for                       Even though 29 C.F.R. §
participating in any inquiry or proceeding         825.220(c) appears to be an
related to the FM LA. See Bachelder v.             implementation of the “interference”
Amecica West Airlines, Inc., 259 F.3d              provisions of the FMLA, its text
1112, 1124 (9th Cir. 2001).                        unambiguously speaks in terms of
        The Ninth Circuit, we believe              “discrimination” and “retaliation,” and we
appropriately, has predicated liability in         shall, of course, apply it in a manner
such situations on § 825.220(c) of the             consistent with that text.

                                              13
discharged because he violated the LCA.             308 F.3d at 338 (applying the “direct
In support of his claim that his FMLA               evidence” analysis to a claim under the
leave was responsible for that decision,            Age Discrimination in Employment Act).10
Conoshenti points primarily to three
documents: (1) the April 17th termination
letter which assigned as the reason for the            10
                                                         We noted in Fakete that:
discharge all 92 days of his absence from
                                                           “Direct evidence” means
work; (2) the draft termination letter dated
                                                           evidence sufficient to allow
December 20th stating that Conoshenti
                                                           the jury to find that “the
would be terminated because of his
                                                           ‘decision makers placed
absence from work from December 6th to
                                                           substantial negative reliance
December 16th; and (3) Wasser’s
                                                           on [the protected activity] in
December 27th note indicating that
                                                           reaching their decision”’ to
Conoshenti would be discharged upon his
                                                           fire him.       Connors v.
return to work.
                                                           Chrysler Fin. Corp., 160
   The District Court concluded, and                       F.3d 971, 976 (3d Cir. 1998)
PSE&G does not contest, that these                         (quoting Price Waterhouse,
docu men ts were sufficient “direct                        490 U.S. at 277, 109 S. Ct.
evidence” of Conoshenti’s FMLA leave                       1775); see also Anderson v.
having been a factor in the discharge                      Consol. Rail Corp., 297
decision to give Conoshenti the benefit of                 F.3d 242, 248 (3d Cir. 2002)
the Supreme Court’s decision in Price                      (same).
Waterhouse v. Hopkins, 490 U.S. 228                 308 F.3d at 338-39.
(1989). See Walden v. Georgia Pacific                      Because there is such direct
Corp., 126 F.3d 506 (3d Cir. 1997);                 evidence here and Price Waterhouse
Woodson v. Scott Paper, 109 F.3d 913 (3d            accordingly places the burden of showing
Cir. 1997) (both recognizing that Price             the absence of but-for cause on the
Waterhouse may properly be applied in a             employer, we have no occasion to consider
retaliation case when there is “direct              whether the reference in 29 C.F.R. §
evidence” of retaliatory animus). Under             825.220(c) (emphasis added) to “a
the Price Waterhouse framework, when an             negative factor” makes it unnecessary for
FMLA plaintiff “alleging unlawful                   the plaintiff to prove but-for causation in
termination presents ‘direct evidence’ that         FMLA retaliatory-discharge cases
his [FMLA leave] was a substantial factor           unaffected by Price Waterhouse. See
in the decision to fire him, the burden of          Bachelder, 259 F.3d at 1124 (holding that
persuasion on the issue of causation shifts,        to prevail on a claim under § 825.220(c), a
and the employer must prove that it would           plaintiff “need only prove by a
have fired the plaintiff even if it had not         preponderance of the evidence that her
considered [the FMLA leave].” Fakete,               taking of FM LA -prote c ted leave
                                                    constituted a negative factor in the

                                               14
Justice O’Connor explained that this                twelve weeks of FMLA-protected leave.
burden requires the employer:                       Conoshenti himself conceded to the
                                                    District Court, as well as in his brief on
  To convince the trier of fact that it is
                                                    appeal, that any violation of the LCA
  more likely than not that the decision
                                                    “would be deemed automatic just cause
  would have been the same absent
                                                    and he would be fired.” Pl.’s Mem. Supp.
  consideration of the illegitimate
                                                    Summ. J. at 2; Appellant’s Br. at 7. Here,
  factor.    The employer need not
                                                    there is no question that Conoshenti
  isolate the sole cause for the
                                                    exceeded his twelve weeks of protected
  decision; rather it must demonstrate
                                                    leave and, under the LCA, he was subject
  that with the illegitimate factor
                                                    to immediate discharge on the very first
  removed from the calculus, sufficient
                                                    workday that he was both absent from
  business reasons would have induced
                                                    work and no longer protected by the
  it to take the same employment
                                                    FMLA.
  action. This evidentiary scheme
  essentially requires the employer to                 Ironically, the evidence that Conoshenti
  place the employee in the same                    relies upon, while permitting an inference
  position he or she would have                     that his absence from work during the
  occupied absent discrimination.                   twelve weeks following December 6th was
                                                    a substantial factor in the decision to
Price Waterhouse, 490 U.S. at 276-77.11
                                                    discharge him on April 17th, also
   The District Court held that “there [was]        demonstrates that he would have been
no genuine issue of material fact regarding         discharged on April 17th had that prior
the proposition that [PSE&G] would have             absence not occurred.       The December
discharged [Conoshenti] for reasons not             20th draft termination letter, the Wasser
related to the FMLA leave.” App. at 15-             December 27th note, and the fact that the
16. We agree.                                       draft termination letter was not sent
                                                    demonstrate that PSE&G was determined
   Even when viewed in a light most
                                                    both to respect Conoshenti’s right to
favorable to Conoshenti, the record clearly
                                                    FMLA leave and to discharge him under
indicates that Conoshenti would have been
                                                    the LCA as soon as it could legally do so.
discharged absent any consideration of his
                                                    While the reference to 92 days in the April
                                                    17th termination letter might, in isolation,
decision to terminate her”).                        support an inference that the protected
                                                    leave was considered in connection with
   11
      We have previously recognized that            the discharge decision, it would not
Justice O’Connor’s concurring opinion in            support a finding that Conoshenti would
Price Waterhouse represents the Supreme             not have been discharged on April 17th in
Court’s holding in that case. See Anderson          the absence of having taken 12 weeks of
v. Consol. Rail Corp., 297 F.3d 242, 248            protected leave.
(3d Cir. 2002).

                                               15
   Because a rational trier of fact could not        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,
find in Conoshenti’s favor, summary                  regulations or decisions; and judicial
judgment in favor of PSE&G on this claim             decisions.” Pierce, 417 A.2d at 512.
was appropriate.12                                   Furthermore, the New Jersey Supreme
                                                     Court has recognized that “federal law and
    B. The New Jersey Pierce Claim
                                                     policy can constitute New Jersey’s clear
   In Pierce v. Ortho Pharmaceutical                 mandate of public policy.” D’Agostino v.
Corp., 417 A.2d 505, 512 (N.J. 1980), the            Johnson & Johnson, Inc., 628 A.2d 305,
New Jersey Supreme Court recognized                  312 (N.J. 1993). Whether a plaintiff has
that an at-will employee “has a cause of             established the existence of such a public
action for wrongful discharge when the               policy is an issue of law. Mehlman v.
discharge is contrary to a clear mandate of          Mobil Oil Corp., 707 A.2d 1000, 1012
public policy.” An employee can prove                (N.J. 1998). “A salutary limiting principle
such a wrongful discharge claim by                   is that the offensive activity must pose a
“show[ing] that the retaliation is based on          threat of public harm, not merely private
the employee’s exercise of certain                   harm or harm only to the aggrieved
established rights, violating a clear                employee.” Id. at 1013. The public policy
mandate of public policy.” MacDougall v.             must also be “clearly identified and firmly
Weichert, 677 A.2d 162, 168 (N.J. 1996).             grounded . . . . A vague, controversial,
“The sources of public policy include                unsettled, and otherwise problematic
                                                     public policy does not constitute a clear
                                                     mandate.” MacDougall, 677 A.2d at 167.
     12                                              “[U]nless an employee at will identifies a
        Conoshenti asserted an additional
                                                     specific expression of public policy, he
FMLA claim in the District Court based on
                                                     may be discharged with or without cause.”
29 C.F.R. § 825.220(b), which provides
                                                     Pierce, 417 A.2d at 512.
that “‘[i]nterfering with’ the exercise of an
employee’s rights would include . . .                   Conoshenti contends that he is entitled
manipulation by a covered employer to                to recover under Pierce because he was
avoid responsibilities under FMLA.” His              discharged in violation of a clear public
theory was that PSE&G’s alleged                      policy established by the FMLA,13 i.e., a
assurances that he should take as long as
necessary to recover cons tituted
                                                           13
“manipulation” under § 825.220(b). While                    At least one New Jersey court has
Conoshenti’s briefing before us refers to            expressly held that the FMLA establishes
those assurances in support of his failure           a clear mandate of public policy sufficient
to advise claim, it does not assign as error         to support a Pierce claim. See Hampton v.
the District Court’s rejection of his                Armand Corp., 834 A.2d 1077, 1081 (N.J.
“manipulation” claim. Accordingly, we                Super. Ct. App. Div. 2003) (holding that a
have no occasion to address the viability of         Pierce claim may rely on the FMLA as a
such a claim.                                        source of public policy, but only if the

                                                16
policy of ensuring the job security of                 In most cases of wrongful discharge,
employees who have serious health                      the employee must show retaliation
conditions that require temporary leave. If            that directly relates to an employee’s
the record would support a finding that                resistance to or disclosure of an
Conoshenti was discharged because he                   employer’s illicit conduct. In some
took FMLA leave, this might be a viable                cases, however, the employee may
theory, although it is not clear to us that a          show that the retaliation is based on
Pierce claim in that event would be of any             the employee’s exercise of certain
additional benefit to him. As we have                  established rights, violating a clear
held, however, the record will not support             mandate of public policy.
a finding that Conoshenti was discharged
                                                        Conoshenti was discharged for violating
in retaliation for taking his FMLA leave.
                                                     the LCA and the conduct constituting that
   We also conclude that Conoshenti                  violation, and that discharge, accordingly,
would not have a meritorious Pierce claim            was unrelated to his having taken FMLA
based on the FMLA even if he were able               leave. As a result, we predict that the New
to show that the failure to advise him of            Jersey Supreme Court would hold that
his FMLA rights caused him prejudice.                Conoshenti’s discharge did not give rise to
The Pierce doctrine is about wrongful                a Pierce claim even if it was preceded by
discharges, and it has only been applied             a failure to provide advice required by the
where the discharge itself offended a clear          FMLA. The District Court’s summary
public policy. Thus, all cases in which it           judgment on Conoshenti’s Pierce claim
has been successfully advanced have                  will, accordingly, stand.
involved situations in which the discharge
                                                              C. The NJLAD Claim
was in retaliation for conduct supported by
the policy or for the employee’s exercise               The NJLAD prohibits “any unlawful
of some established right. As the Supreme            discrimination against any person because
Court of New Jersey explained in                     such person is or has been at any time
MacDougall v. Weichert, 677 A.2d 162,                disabled or any unlawful employment
168 (N.J. 1996) (citations omitted):                 practice against such person, unless the
                                                     nature and extent of the disability
                                                     reasonably precludes the performance of
plaintiff is an “eligible employee” under            the particular employment.” N.J. Stat.
the FMLA).                                           Ann. § 10:5-4.1. Further, the New Jersey
       Conoshenti also asserts before us a           Administrative Code requires that an
Pierce claim based on the NJLAD. He                  “employer must make a reasonable
expressly advised the District Court,                accommodation to the limitations of an
however, that his Pierce claim was based             employee or applicant who is a person
solely on the FM LA and not on the                   with a disability, unless the employer can
NJLAD. Accordingly, any Pierce claim                 demonstrate that the accommodation
based on the NJLAD has been waived.

                                                17
would impose an undue hardship.” N.J.               provision of the A mericans           w ith
Admin. Cod tit. 13, § 13-2.5. This duty to          Disabilities Act (ADA)”).
accommodate, however, is subject to “an
                                                       As to the second element, however, the
exception . . . where it can reasonably be
                                                    District Court found that, as of the end of
determined that an . . . employee, as a
                                                    his FMLA-protected leave, Conoshenti
result of the individual disability, cannot
                                                    was unable to perform any of the functions
presently perform the job even with
                                                    of his job. Accordingly, the District Court
reasonable accommodation.” N.J. Admin.
                                                    concluded that the only reasonable
Code tit. 13, § 13-2.8(a).
                                                    accommodation that would protect his
   Conoshenti claims that PSE&G violated            employment status as of that date would
his rights under NJLAD by denying him a             have been a leave of absence. While
reasonable accommodation. “Generally, a             noting the existence of federal cases
p ri m a facie case of failure to                   recognizing a leave of absence as a
accommodate requires proof that (1) the             “reasonable accommodation” under the
plaintiff had a LAD handicap; (2) was               ADA, the District Court nevertheless held
qualified to perform the essential functions        that a leave of absence was not a
o f t h e j o b , w i t h o r w i th o u t          reasonable accommodation under the
accommodation; and (3) suffered an                  NJLAD. It did not err in so holding.
adverse employment action because of the
                                                       As we have noted, the New Jersey
handicap.”      Bosshard v. Hackensack
                                                    Adm inistrative C ode provides an
University Medical Center, 783 A.2d 731,
                                                    exception to an employer’s obligation to
739 (N.J. Super. Ct. App. Div. 2001)
                                                    provide a reasonable accommodation
(citing Seiden v. Marina Assoc., 718 A.2d
                                                    “where it can reasonably be determined
1230, 1237 (N.J. Super. Ct. Law Div.
                                                    that an applicant or employee, as a result
1998)).
                                                    of the individual’s disability, cannot
   The District Court first correctly ruled         presently perform the job even with
that Conoshenti’s temporary disability              reasonable accommodation.” N.J. Admin.
constituted a handicap under NJLAD. See             Code tit. 13, § 13-2.8(a) (emphasis added).
Soules v. Mount Holiness Mem. Park, 808             This provision of the New Jersey
A.2d 863, 865-66 (N.J. Super. Ct. App.              regulation reflects a significant difference
Div. 2002) (holding that a “temporary               between the ADA and NJLAD. While the
inability to work while recuperating from           ADA applies to employees “who, with or
surgery or injury is a handicap” under              without reasonable accommodation, can
NJLAD); see also Viscik v. Fowler Equip.            perform the essential functions of the
Co., 800 A.2d 826, 835 (N.J. 2002) (noting          employment position that such individual
that “[t]he term ‘handicapped’ in LAD is            holds or desires,” 42 U.S.C. § 12111(8)
not restricted to ‘severe’ or ‘immutable’           (emphasis added); see also 29 C.F.R. §
disabilities and has been interpreted as            1630.2(m), NJLAD protects only an
significantly broader than the analogous            employee who can presently perform the

                                               18
essential functions of his job with or              would have excused Conoshenti from
without the reasonable accommodation.               present performance contrary to the
The NJLAD regulation thus requires that             explicit requirements of the NJLAD
the handicapped employee be able to                 regulation. We are confident that the New
perform the essential functions of his job          Jersey Supreme Court would not sanction
during the application of the reasonable            such a conflict. We will therefore affirm
accommodation – that is, at the same time           the District Court’s grant of summary
that the reasonable accommodation is                judgment in favor of PSE&G on
being implemented. The ADA, however,                Con oshenti’s NJL A D f ailure-to -
does not contain any such temporal                  accommodate claim.
requirement. Accordingly, the federal
                                                                 V. Conclusion
courts that have permitted a leave of
absence as a reasonable accommodation                  The judgment of the District Court will
under the ADA have reasoned, explicitly             be reversed insofar as it granted summary
or implicitly, that applying such a                 judgment to PSE&G on Conoshenti’s
reasonable accommodation at the present             FMLA failure to advise claim. It will be
time would enable the employee to                   affirmed in all other respects. This matter
perform his essential job functions in the          will be remanded to the District Court for
near future. See, e.g., Criado v. IBM               further proceedings consistent with this
Corp., 145 F.3d 437, 444 (1st Cir. 1998)            opinion.
(“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


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