Conoshenti v. Public Service Elec. & Gas

• Decision Date: 13 April 2004
• Docket Number: No. 03-2257.,03-2257.
• Citation: 364 F.3d 135
• Parties: Richard CONOSHENTI Appellant v. PUBLIC SERVICE ELECTRIC & GAS COMPANY.
• Court: U.S. Court of Appeals — Third Circuit

364 F.3d 135

Richard CONOSHENTI Appellant v. PUBLIC SERVICE ELECTRIC & GAS COMPANY.

No. 03-2257.

United States Court of Appeals, Third Circuit.

Argued January 26, 2004.

Filed April 13, 2004.

COPYRIGHT MATERIAL OMITTED

Gerald J. Resnick (Argued), Andrea Rachiele, Deutsch & Resnick, Hackensack, NJ, for Appellant.

Patrick Westerkamp (Argued), Public Service Electric & Gas Company, Newark, NJ, for Appellee.

Before NYGAARD, FUENTES and STAPLETON, Circuit Judges.

STAPLETON, Circuit Judge.

Appellant Richard Conoshenti alleges that his employment with Public Service Electric and Gas Company ("PSE & G") was terminated in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., ("FMLA"), New Jersey public policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (N.J.1980), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq., ("NJLAD"). The District Court granted summary judgment in favor of PSE & G on all of Conoshenti's claims. We will reverse the District Court's judgment with respect to Conoshenti's FMLA claim and remand for further proceedings. We will affirm, however, the District Court's judgment with respect to Conoshenti's Pierce and NJLAD claims.

I. Facts and Procedural History

Richard Conoshenti was employed as a First Grade Mechanic with PSE & G since 1972. In April and May 1999, PSE & G accused him of keeping inaccurate time records and leaving his shift early to take a shower. Conoshenti denied keeping inaccurate records, claiming that he was merely engaged in the accepted practice of correcting times that were inappropriately recorded. As for leaving his shift early, Conoshenti claimed that he had been working with chemicals that irritated his skin, and that a shower was necessary. Nevertheless, on May 21, 1999, PSE & G made a decision to discharge him for these violations of company policy.

Upon the advice of Conoshenti's union, and because he was willing to accept blame to keep his job,¹ he agreed to enter into a Last Chance Agreement ("LCA"). Under the LCA, PSE & G agreed that 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 clean safety record. Conoshenti understood that if he were to violate any of these requirements, such violation would automatically constitute just cause for his immediate discharge.

From August 10, 1999, the date he entered into the LCA, to December 3, 1999, Conoshenti performed each of his obligations and was not warned, reprimanded, or fired for any improper conduct. On December 4, 1999, however, 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 In particular, Conoshenti was not told that he was entitled, under the FMLA, to twelve weeks of protected leave. He was also not told that the leave he was using would be considered FMLA leave.

On December 16, 1999, Conoshenti met with an orthopedic surgeon, Dr. Alexander P. Russoniello, who diagnosed him with torn rotator cuffs and recommended immediate surgery. The surgery was scheduled for early January 2000. Conoshenti notified PSE & G of his plan to undergo the surgery and was told to take time to recuperate. On December 17th, he sent PSE & G a form completed by Dr. Russoniello that indicated his diagnosis and that he would be unable to work until approximately April 2000.

Thereafter, on or about December 20, 1999, PSE & G began administrative steps to end Conoshenti's employment for violating the LCA. These steps included the preparation of a Recommendation for Disciplinary Action, which recommended that Conoshenti be discharged because he "was unavailable for work on 12/6/99 and the following 9 work days, a violation of his `Last Chance Agreement.'" App. at 236a. The recommendation was approved by several PSE & G officers on December 20th, but no action was taken. PSE & G also drafted a termination letter, dated December 20th, that cited Conoshenti's absence on December 6th and the subsequent ten days as the reason for his discharge. App. at 237a. This letter, however, was not signed and was never sent.

Meanwhile, Conoshenti had become concerned about his job security and therefore contacted his union to determine what he needed to do to protect himself. The union advised him to notify PSE & G that he desired to have his leave counted as FMLA leave. Following this advice, Conoshenti, on December 27, 1999, sent a letter to his direct supervisor at PSE & G, Bob Wasser, stating:

I would like to request an immediate leave under the Family and Medical Leave Act. I am requesting this leave due to the fact that I was in an accident on December 4, 1999. If I can provide any other information or doctor 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 ½ hour later. I called and was informed by Tiberi that we must hold off on the discharge, because: He is entitled to benefits while he is on disability. It is against the law to discharge under these conditions. Tiberi said that he will be discharged upon his return to work 1st day back.

App. at 246a. Conoshenti then underwent surgery for his torn rotator cuff in early January 2000. Thereafter, Conoshenti's doctors periodically updated PSE & G on his condition. Conoshenti claimed that throughout his recovery, he was told by several different people at PSE & G, including Wasser, to take his time recovering and to not hurry back until he was "100%." App. at 294a, 295a. Conoshenti also claimed that he was assured that "light duty" would be available to him when he was able to return to work. App. at 295a.

On March 28, 2000, Dr. Russoniello authorized Conoshenti to return to work for "desk duty" as of April 3, 2000, and Conoshenti, in turn, notified PSE & G of his ability to return to work. PSE & G informed him, however, that the facility where he worked could not accommodate desk duty and that his return to work would have to be delayed until his doctor cleared him for full active manual labor. In April 2000, Conoshenti's doctor authorized his return to unrestricted work duty. On April 12, 2000, Conoshenti took and passed a physical examination required by PSE & G. It was Conoshenti's understanding that passing the physical examination was the only condition placed on his returning to work. Also on April 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 the job, however, he was called into his supervisor's office and told he was being terminated for violation of the LCA. The termination letter stated, in part:

On December 6, 1999, you were unable to report to work as a result of being involved in a motor vehicle accident. Subsequently, you were out of work for 92 days, a violation of the terms and conditions of your "Last Chance Agreement." As a result of your failure to comply with the terms and conditions of this agreement, your employment with Public Service Electric and Gas Company is being terminated April 17, 2000.

App. at 269a.

It is undisputed that Conoshenti's absence from work exceeded the twelve weeks of leave that are protected by the FMLA. If Conoshenti's protected leave were considered to have begun on December 6, 1999, the twelve week period would have expired on March 1, 2000. Even if the twelve week period were considered to have begun on December 27, 1999, the protected period would have expired on March 19, 2000.

After his discharge, Conoshenti and his union filed a grievance and the case was arbitrated pursuant to the LCA. Although the arbitrator noted that the LCA was very stringent and possibly even "draconian," he nevertheless found that Conoshenti had violated its terms and therefore denied the grievance.

Conoshenti then filed a complaint against PSE & G in the Superior Court of New Jersey, Union County. Counts One and Two of the complaint alleged violations of NJLAD. Count Three alleged that Conoshenti had been wrongfully discharged in violation of public policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (N.J.1980). Count Four alleged violations of the FMLA. PSE & G removed the case to the United States District Court for the District of New Jersey.

Conoshenti and PSE & G filed cross-motions for summary judgment. The District Court granted summary judgment in favor of PSE & G on all of Conoshenti's claims. This timely notice of appeal followed.⁵

II. Discussion

Conoshenti argues that the District Court erred in granting PSE & G's motion for summary judgment and denying his own motion for summary judgment. We review the District Court's grant of summary judgment de novo. American Medical Imaging Corp. v. St. Paul Fire & Marine Ins. Co., 949 F.2d 690, 692 (3d Cir.1991). Summary judgment is appropriate if there are no genuine issues of material fact...