RICHARD CONOSHENTI, Appellant v. PUBLIC SERVICE ELECTRIC & GAS COMPANY
NO. 03-2257
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
April 13, 2004
364 F.3d 135
STAPLETON, Circuit Judge
PRECEDENTIAL. On Aрpeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 01-cv-04611). District Judge: Hon. Joseph A. Greenaway, Jr. Argued January 26, 2004. BEFORE: NYGAARD, FUENTES and STAPLETON, Circuit Judges.
Patrick Westerkamp (Argued), Public Service Electric & Gas Company, 80 Park Plaza – T5E, Newark, NJ 07101-0570, Attorney for Appellee
STAPLETON, Circuit Judge:
Appellant Richard Conoshenti alleges that his employment with Public Service Electric and Gas Company (“PSE&G“) was terminated in violation of the Family and Medical Leave Act of 1993,
I. Facts and Procedural History
Richard Conoshenti was employed as a First Grade Mechanic with PSE&G since 1972. In April and May 1999, PSE&G accused him of keeping inaccurate time records and leaving his shift early to take a shower. Conoshenti denied keeping inaccurate records, сlaiming that he was merely engaged in the accepted practice of correcting times that were inappropriately recorded. As for leaving his shift early, Conoshenti claimed that he had been working with chemicals that irritated his skin, and that a shower was necessary. Nevertheless, on May 21, 1999, PSE&G made a decision to discharge him for these violations of company policy.
Upon the advice of Conoshenti‘s union, and because he was willing to accept blame to keep his job,1 he agreed to enter into a Last Chance Agreement (“LCA“). Under the LCA, PSE&G agreed that Conoshenti would be reinstated, conditioned upon his satisfactory performance of each of the obligations outlined in a letter dated August 10, 1999. These obligations included: taking and passing a physical examination, reporting to work every day and on time, maintaining satisfactory work performance, and maintaining a clеan safety record. Conoshenti understood that if he were to violate any of these requirements, such violation would automatically constitute just cause for his immediate discharge.
From August 10, 1999, the date he entered into the LCA, to December 3, 1999, Conoshenti performed each of his obligations and was not warned, reprimanded, or fired for any improper conduct. On December 4, 1999, however, while outside the scope of his employment, Conoshenti was struck by an automobile and sustained a serious injury that required hospitalization. Shortly thereafter, on December 6, 1999, Conoshenti informed his boss at PSE&G of his accident and the seriousness of his injuries. He also informed his boss that his physician had indicated that he would need to be out of work for at least two weeks in order to recover.2 PSE&G did not notify Conoshenti at that time, or at any time thereafter, of his rights under the FMLA.3
On December 16, 1999, Conoshenti met with an orthopedic surgeon, Dr. Alexander P. Russoniello, who diagnosed him with torn rotator cuffs and recommended immediate surgery. The surgery was scheduled for early January 2000. Conoshenti notified PSE&G of his plan to undergo the surgery and was told to take time to recuperate. On December 17th, he sent PSE&G a form completed by Dr. Russoniello that indicated his diagnosis and that he would be unable to work until approximately April 2000.
Thereafter, on or about December 20, 1999, PSE&G began administrative steps to end Conoshenti‘s employment for violating the LCA. These steps included the preparation of a Recommendation for Disciplinary Action, which recommended that Conoshenti be discharged because he “was unavailable for work on 12/6/99 and the following 9 work days, a violation of his ‘Last Chance Agreement.‘” App. аt 236a. The recommendation was approved by several PSE&G officers on December 20th, but no action was taken. PSE&G also drafted a termination letter, dated December 20th, that cited Conoshenti‘s absence on December 6th and the subsequent ten days as the reason for his discharge. App. at 237a. This letter, however, was not signed and was never sent.
Meanwhile, Conoshenti had become concerned about his job security and therefore contacted his union to determine what he needed to do to protect himself. The union advised him to notify PSE&G that he desired to have his leave counted as FMLA leave. Following this advice, Conoshenti, on December 27, 1999, sent a letter to his direct supervisor at PSE&G, Bob Wasser, stating:
I would like to request an immediate leave under the Family and Medical Leave Act. I am requesting this leave due to the fact that I was in an accident on December 4, 1999. If I can provide any other information or doctor notification I would appreciate contact from the company.
App. at 73a. That same day, Wasser made the following handwritten notation:
Conoshenti called and stated that he wanted a “family medical leave.” I responded by saying that I would research it for him and call him back.
[I] called J. Tiberi4 and discussed. Initially the discharge was to be executed through the mail, effective 1-01-00[.] [W]hen I mentioned “family leave” Tiberi said he would call [redacted]. Tiberi paged me 1/2 hour later. I called and was informed by Tiberi that we must hold off on the discharge, because: He is entitled to benefits while he is on disability. It is against the law to discharge under these conditions. Tiberi said that he will be discharged upon his return to work 1st day back.
On March 28, 2000, Dr. Russoniello authorized Conoshenti to return to work for “desk duty” as of April 3, 2000, and Conoshenti, in turn, notified PSE&G of his ability to return to work. PSE&G informed him, however, that the facility where he worked could not accommodate desk duty and that his return to work would have to be delayed until his doctor cleared him for full active manual labor. In April 2000, Conoshenti‘s doctor authorized his return to unrestricted work duty. On April 12, 2000, Conoshenti took and passed a physical examination required by PSE&G. It was Conoshenti‘s understanding that passing the physical examination was the only condition placed on his returning to work. Also on April 12, 1999, PSE&G reinitiated administrative steps to end Conoshenti‘s employment for violation of the LCA. On April 17, 1999, Conoshenti reported for work. After one hour on thе job, however, he was called into his supervisor‘s office and told he was being terminated for violation of the LCA. The termination letter stated, in part:
On December 6, 1999, you were unable to report to work as a result of being involved in a motor vehicle accident. Subsequently, you were out of work for 92 days, a violation of the terms and conditions of your “Last Chance Agreement.” As a result of your failure to comply with the terms and conditions of this agreement, your employment with Public Service Electric and Gas Company is being terminated April 17, 2000.
App. at 269a.
It is undisputed that Conoshenti‘s absence from work exceeded the twelve weeks of leave that are protected by the FMLA. If Conoshenti‘s protected leave were considered to have begun on December 6, 1999, the twelve week period would have expired on March 1, 2000. Even if the twelve week period were considered to have begun on December 27, 1999, the protected period would have expired on March 19, 2000.
Conoshenti then filed a complaint against PSE&G in the Superior Court of New Jersey, Union County. Counts One and Two of the complaint alleged violations of NJLAD. Count Three alleged that Conoshenti had been wrongfully discharged in violation of public policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (N.J. 1980). Count Four alleged violations of the FMLA. PSE&G removed the case to the United States District Court for the District of New Jersey.
Conoshenti and PSE&G filed cross-motions for summary judgment. The District Court granted summary judgment in favor of PSE&G on all of Conoshenti‘s claims. This timely notice of appeal followed.5
II. Discussion
Conoshenti argues that the District Court erred in granting PSE&G‘s motion for summary judgment and denying his own motion for summary judgment. We review the District Court‘s grant of summary judgment de novo. American Medical Imaging Corp. v. St. Paul Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir. 1991). Summary judgment is аppropriate if there are no genuine issues of material fact presented and the moving party is entitled to judgment as a matter of law.
A. Family and Medical Leave Act Claims
The stated purposes of the FMLA are to “balance the demands of the workplace with the needs of families” and “to entitle employees to take reasonable leave for medical reasons.”
In order to protect these substantive rights, the FMLA proscribes an employer from engaging in certain acts. See
In addition, the United States Department of Labor (“DOL“) has promulgated regulations implementing the FMLA, as authorized by
An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciрlinary actions; nor can FMLA leave be counted under “no fault” attendance policies.
Finally, the DOL‘s regulations impose upon the employer obligations to communicate with employees regarding their rights under the FMLA. In particular, the regulations require employers to provide employees with individualized notice of their FMLA rights and obligations. Pursuant to
There are two arrows to Conoshenti‘s FMLA bow. He insists that the District Court erred in granting summary judgment against him because (1) PSE&G failed to advise him of his FMLA rights and thereby interfered with his ability to meaningfully exercise his right to an FMLA leave; and (2) PSE&G “use[d] the taking of FMLA leave as a negative factor in” its decision to discharge him on April 17, 2000.
1. The Failure to Advise Claim
Conoshenti argues that PSE&G‘s failure to advise him of his right to twelve weeks of FMLA leave, after he properly gave notice of his serious health condition, constituted an interference with his FMLA right to that protected leave. Had he received the advice PSE&G was obliged tо provide, Conoshenti insists, he would have been able to make an informed decision about structuring his leave and would have structured it, and his plan of recovery, in such a way as to preserve the job protection afforded by the Act. We conclude that this is a viable theory of recovery and that the District Court accordingly erred in granting summary judgment on it against Conoshenti.
As we have noted, the parties stipulated in the District Court that, for purposes of summary judgment, PSE&G did not advise Conoshenti of his rights under the FMLA. As we have also noted, the regulation under the FMLA imposed a duty on PSE&G to do so. It follows, we believe, that Conoshenti will show an interference with his right to leave under the FMLA, within the meaning of
In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), the Supreme Court had before it the FMLA regulations requiring an employer to advise employees of FMLA rights. It was called upon to determine the validity of a regulation,
The Ragsdale Court expressly noted that the validity of notice requirements of the regulations themselves was not before it. Accordingly, Ragsdale is not dispositive of anything before us. It is helpful, however, because the Court found “reasonable” Ragsdale‘s suggestion that a failure to advise of FMLA rights could constitute an interference with “an employee‘s exercise of basic FMLA rights in violation of § 2615“:
Section 825.700(a), Ragsdale contends, reflects the Secretary‘s understanding that an employer‘s failure to comply with the designation requirement might sometimes burden an employee‘s exercise of basic FMLA rights in violation of § 2615. Consider, for instance, the right under § 2612(b)(1) to take intermittent leave when medically necessary. An employee who undergoes cancer treatments every other week over the course of 12 weeks might want to work during the off weeks, earning a paycheck and saving six weeks for later. If she is not informed that her absence qualifies as FMLA leave – and if she does not know of her right under the statute to take intermittent leave – she might take all 12 of her FMLA-guaranteed weeks consecutively and have no leave remaining for some future emergency. In circumstances like these, Ragsdale argues, the employer‘s failure to give the notice required by the regulation could be said to “deny,” “restrain,” or “interfere with” the employee‘s exercise of her right to take intermittent leave.
This position may be reasonable, but the more extreme one embodied in § 825.700(a) is not. . . . [It] establishes an irrebuttable presumption that the employee‘s exercise of FMLA rights was impaired – and that the employee deserves 12 more weeks. There is no empirical or logical basis for this presumption, as the facts of this case well demonstrate. Ragsdale has not shown that she would have taken less leave or intermittent leаve if she had received the required notice.
Ragsdale, 535 U.S. at 89-90. This portion of the Ragsdale opinion, together with our own assessment of the reasonableness of the notice regulations, persuades us that the Supreme Court would find an actionable “interference” in violation of § 2615(a) here in the event Conoshenti is able to show prejudice as a result of that violation.
The District Court from which this appeal comes to us has previously endorsed the theory of recovery Conoshenti advances here. In Nusbaum v. CB Richard Ellis, Inc., 171 F. Supp. 2d 377, 379-80 (D.N.J. 2001), after plaintiff Margot Nusbaum learned that she required back surgery, she requested that her employer allow her to take medical leave and also requested information regarding the employer‘s medical leave policy. The employer refused to provide this information. Moreover, Nusbaum never received any materials providing information on FMLA leave and the employer had not complied with
[T]he purpose of the regulations enacted by the DOL . . . is to ensure that employers allow their employees to make informed decisions about leave. . . . The overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations. Without such an opportunity, the employee hаs not received the statutory benefit of taking necessary leave with the reassurance that her employment, under proscribed conditions, will be waiting for her when she is able to return to work.
Id. at 385-86. The court concluded that Nusbaum “was, therefore, not given the proper information that would have allowed her to structure her leave in a way that would have left her protected by the FMLA.” Id. at 386. We find this reasoning of the Nusbaum Court persuasive.
The District Court in Conoshenti‘s case accepted his claim that the regulations imposed a duty on PSE&G to advise him of his FMLA rights and that a failure to do so could result in an “interference” under § 2615(a)(1). It distinguished Nusbaum, however, on the ground that Conoshenti had proven no prejudice as required by Ragsdale. In support of this conclusion, the Court first noted that “his ignorance of the nature of his leave ended on December 27.” Accordingly, it held that Conoshenti‘s reliance on Nusbaum could only be used to delay the commencement of his twelve weeks of FMLA-proteсted leave from December 6th to December 27th; this would, in any event, have left him unprotected by the FMLA before he returned to work. The Court then observed that Conoshenti had “presented no evidence that he could have made a different choice had PSE&G informed him that his FMLA leave began on December 6,” and made “only the bare assertion that he could have made different decisions.” App. at 16a. We hold that the District Court‘s analysis is at odds with well-established principles governing the propriety of summary judgments.
The record indicates that in December 1999, Conoshenti contacted his union in order to learn what he needed to do to protect his job during his recovery. In response to this inquiry, the union advised Conoshenti to inform PSE&G that he wanted his leave to be considered FMLA leave. The record further indicates that Conoshenti then sent a letter to PSE&G on December 27, 1999 stating that he “would like to request an immediatе leave under the Family and Medical Leave Act.” App. at 73a. Nothing in the record, however, indicates that Conoshenti knew that he was entitled to only twelve weeks of protected leave. Rather, the record simply reflects what Conoshenti was told to say and what he did say. The summary judgment record thus does not speak to Conoshenti‘s knowledge of his relevant FMLA rights on December 27th or thereafter during his leave.
Similarly, the summary judgment record, as the District Court correctly noted, contains no competent evidence regarding the alternatives that would have been available to Conoshenti had PSE&G advised him of his rights when he requested leave on December 6th. Only Conoshenti‘s brief contains a statement of what he would have done had he been advised of his rights.8
While we agree with the District Court that these gaps in the record required it to deny Conoshenti‘s motion for summary judgment, they clearly did not warrant the grant of PSE&G‘s motion. It is well established that “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
2. The Discharge Claim
Subsection 825.220(c) of the FMLA regulations provides:
An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.
It is apparent from thе face of § 825.220(c) that to be successful on this claim, Conoshenti must show that (1) he took an FMLA leave, (2) he suffered an adverse employment decision, and (3) the adverse decision was causally related to his leave.9 There is no dispute that Conoshenti took an FMLA leave and that PSE&G discharged him on April 17, 1999. The issue for decision, accordingly, is whether the summary judgment record reflects a material dispute of fact as to whether there was a causal connection between the two.
The Ninth Circuit, we believe appropriately, has predicated liability in such situations on § 825.220(c) of the regulations (quoted above), which is found in a section implementing § 2615(a) of the statute that, as we have noted, makes it unlawful to interfere with, restrain or deny any FMLA right. See Bachelder, 259 F.3d at 1124. In Bachelder, the Ninth Circuit Court of Appeals rejected a challenge to the validity of that regulation. It did so by pointing out that § 2615(a) was patterned on § 8(a)(1) of the National Labоr Relations Act (“NLRA“),
Even though
PSE&G insists that Conoshenti was discharged because he violated the LCA. In support of his claim that his FMLA leave was responsible for that decision, Conoshenti points primarily to three documents: (1) the April 17th termination letter which assigned as the reason for the discharge all 92 days of his absence from work; (2) the draft termination letter dated December 20th stating that Conoshenti would be terminated because of his absence from work from December 6th to December 16th; and (3) Wasser‘s December 27th note indicating that Conoshenti would be discharged upon his return to work.
The District Court concluded, and PSE&G does not contest, that these documents were sufficient “direct evidence” of Conoshenti‘s FMLA leave having been a factor in the discharge decision to give Conoshenti the benefit of the Supreme Court‘s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Walden v. Georgia Pacific Corp., 126 F.3d 506 (3d Cir. 1997); Woodson v. Scott Paper, 109 F.3d 913 (3d Cir. 1997) (both recognizing that Price Waterhouse may properly be applied in a retaliation case when there is “direct evidence” of retaliatory animus). Under the Price Waterhouse framework, when an FMLA plaintiff “alleging unlawful termination presents ‘direct evidence’ that his [FMLA leave] was a substantial factor in the decision to fire him, the burden of persuasion on the issue of causation shifts, and the employer must prove that it would have fired the plaintiff even if it had not considered [the FMLA leave].” Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002) (applying the “direct evidence” analysis to a claim under the Age Discrimination in Employment Act).10
Because there is such direct evidence here and Price Waterhouse accordingly places the burden of showing the absence of but-for cause on the employer, we have no occasion to consider whether the reference in
Justice O‘Connor explained that this burden requires the employer:
To convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor. The employer need not isolate the sole cause for the decision; rather it must demonstrate that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same employment action. This evidentiary scheme essentially requires the employer to place the employee in the same position he or she would have occupied absent discrimination.
Price Waterhouse, 490 U.S. at 276-77.11
The District Court held that “there [was] no genuine issue of material fact regarding the proposition that [PSE&G] would have discharged [Conoshenti] for reasons not related to the FMLA leave.” App. at 15-16. We agree.
Even when viewed in a light most favorable to Conoshenti, the record clearly indicates that Conoshenti would have been discharged absent any consideration of his twelve weeks of FMLA-protected leave. Conoshenti himself conceded to the District Court, as well as in his brief on appeal, that any violation of the LCA “would be deemed automatic just cause and he would be fired.” Pl.‘s Mem. Supp. Summ. J. at 2; Appellant‘s Br. at 7. Here, there is no question that Conoshenti exceeded his twelve weeks of protected leave and, under the LCA, he was subject to immediate discharge on the very first workday that he was both absent from work and no longer protected by the FMLA.
Ironically, the evidence that Conoshenti relies upon, while permitting an inference that his absence from work during the twelve weeks following December 6th was a substantial factor in the decision to discharge him on April 17th, also demonstrates that he would have been discharged on April 17th had that prior absence not occurred. The December 20th draft termination letter, the Wasser December 27th note, and the fact that the draft termination letter was not sent demonstrate that PSE&G was determined both to respect Conoshenti‘s right to FMLA leave аnd to discharge him under the LCA as soon as it could legally do so. While the reference to 92 days in the April 17th termination letter might, in isolation, support an inference that the protected leave was considered in connection with the discharge decision, it would not support a finding that Conoshenti would not have been discharged on April 17th in the absence of having taken 12 weeks of protected leave.
Because a rational trier of fact could not find in Conoshenti‘s favor, summary judgment in favor of PSE&G on this claim was appropriate.12
B. The New Jersey Pierce Claim
In Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (N.J. 1980), the New Jersey Supreme Court recognized that an at-will employee “has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy.” An employee can prove such a wrongful discharge claim by “show[ing] that the retaliation is based on the employee‘s exercise of certain established rights, violating a clear mandate of public policy.” MacDougall v. Weichert, 144 N.J. 380, 403, 677 A.2d 162, 168 (N.J. 1996). “The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions.” Pierce, 84 N.J. at 72, 417 A.2d at 512. Furthermore, the New Jersey Supreme Court has recognized that “federal law and policy can constitute New Jersey‘s clear mandate of public policy.” D‘Agostino v. Johnson & Johnson, Inc., 133 N.J. 516, 531, 628 A.2d 305, 312 (N.J. 1993). Whether a plaintiff has established the existence of such a public policy is an issue of law. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187, 707 A.2d 1000, 1012 (N.J. 1998). “A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee.” Id. at 187-88, 707 A.2d at 1013. The public policy must also be “clearly identified and firmly grounded . . . . A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate.” MacDougall, 144 N.J. at 391, 677 A.2d at 167. “[U]nless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause.” Pierce, 84 N.J. at 72, 417 A.2d at 512.
Conoshenti contends that he is entitled to recover under Pierce because he was discharged in violation of a clear public policy established by the FMLA,13 i.e., a policy of ensuring the job security of employees who have serious health conditions that require temporary leave. If the record would support a finding that Conoshenti was discharged because he took FMLA leave, this might be a viable theory, although it is not clear to us that a Pierce claim in that event would be of any additional benefit to him. As we have held, however, the record will not support a finding that Conoshenti was discharged in retaliation for taking his FMLA leave.
We also conclude that Conoshenti would not have a meritorious Pierce claim based on the FMLA even if he were able to show that the failure to advise him of his FMLA rights caused him prejudice. The Pierce doctrine is about wrongful discharges, and it has only been applied where the discharge itself offended a clear public policy. Thus, all cases in which it has been successfully advancеd have involved situations in which the discharge was in retaliation for conduct supported by the policy or for the employee‘s exercise of some established right. As the Supreme Court of New Jersey explained in MacDougall v. Weichert, 144 N.J. 380, 403, 677 A.2d 162, 168 (N.J. 1996) (citations omitted):
In most cases of wrongful discharge, the employee must show retaliation that directly relates to an employee‘s resistance to or disclosure of an employer‘s illicit conduct. In some cases, however, the employee may show that the retaliation is based on the employee‘s exercise of certain established rights, violating a clear mandate of public policy.
Conoshenti was discharged for violating the LCA and the conduct constituting that violation, and that discharge, accordingly, was unrelated to his having taken FMLA leave. As a result, we predict that the New Jersey Supreme Court would hold that Conoshenti‘s discharge did not give rise to a Pierce claim even if it was preсeded by a failure to provide advice required by the FMLA. The District Court‘s summary judgment on Conoshenti‘s Pierce claim will, accordingly, stand.
Conoshenti also asserts before us a Pierce claim based on the NJLAD. He expressly advised the District Court, however, that his Pierce claim was based solely on the FMLA and not on the NJLAD. Accordingly, any Pierce claim based on the NJLAD has been waived.
C. The NJLAD Claim
The NJLAD prohibits “any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment.”
Conoshenti claims that PSE&G violated his rights under NJLAD by denying him a reasonable accommodation. “Generally, a prima facie case of failure to accommodate requires proof that (1) the plaintiff had a LAD handicap; (2) was qualified to perform the essential functions of the job, with or without accommodation; and (3) suffered an adverse employment action because of the handicap.” Bosshard v. Hackensack University Medical Center, 345 N.J. Super. 78, 91, 783 A.2d 731, 739 (N.J. Super. Ct. App. Div. 2001) (citing Seiden v. Marina Assoc., 315 N.J. Super. 451, 465, 718 A.2d 1230, 1237 (N.J. Super. Ct. Law Div. 1998)).
The District Court first correctly ruled that Conoshenti‘s temporary disability constituted a handicap under NJLAD. See Soules v. Mount Holiness Mem. Park, 354 N.J. Super. 569, 573-74, 808 A.2d 863, 865-66 (N.J. Super. Ct. App. Div. 2002) (holding that a “temporary inability to work while recuperating from surgery or injury is a handicap” under NJLAD); see also Viscik v. Fowler Equip. Co., 173 N.J. 1, 15, 800 A.2d 826, 835 (N.J. 2002) (noting that “[t]he term ‘handicapped’ in LAD is not restricted to ‘severe’ or ‘immutаble’ disabilities and has been interpreted as significantly broader than the analogous provision of the Americans with Disabilities Act (ADA)“).
As to the second element, however, the District Court found that, as of the end of his FMLA-protected leave, Conoshenti was unable to perform any of the functions of his job. Accordingly, the District Court concluded that the only reasonable accommodation that would protect his employment status as of that date would have been a leave of absence. While noting the existence of federal cases recognizing a leave of absence as a “reasonable accommodation” under the ADA, the District Court nevertheless held that a leave of absence was not a reasonable accommodation under the NJLAD. It did not err in so holding.
As we have noted, the New Jersey Administrative Code provides an exception to an employer‘s obligation to provide a reasonable accommodation “where it can reasonably be determined that an applicant or employee, as a result of the individual‘s disability, cannot presently perform the job even with reasonable accommodation.”
We decline to hold that a temporary leave of absence must be granted under NJLAD to reasonably accommodate a handicapped employee‘s inability to presently perform the essential functions of his job. Such a holding would effectively defeat the application of the present performance exception. Requiring PSE&G to grant Conoshenti a leave of absence as an accommodation following his FMLA leave would not have enabled him to presently perform his job; rather, it would have excused Conoshenti from present performance contrary to the explicit requirements of the NJLAD regulation. We are confident that the New Jersey Supreme Court would not sanction such a conflict. We will therefore affirm the District Court‘s grant of summary judgment in favor of PSE&G on Conoshenti‘s NJLAD failure-to-accommodate claim.
V. Conclusion
The judgment of the District Court will be reversed insofar as it granted summary judgment to PSE&G on Conoshenti‘s FMLA failure to advise claim. It will be affirmed in all other respects. This matter will be remanded to the District Court for further proceedings consistent with this opinion.