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An employer’s failure to notify a worker of his rights under the Family and Medical Leave Act may later be deemed an “interference” with those rights if the worker can show that he would have structured his leave differently to preserve his job, the 3rd U.S. Circuit Court of Appeals has ruled. In Conoshenti v. Public Service Electric & Gas Co., a unanimous three-judge panel revived a suit that was dismissed on summary judgment, finding that the lower court had imposed too heavy a burden on the plaintiff to show that the employer’s failure to explain his FMLA rights had prejudiced him. Instead, the court said, the burden should have been on the employer to show that there was no evidence of prejudice and that even if his rights had been fully explained, the plaintiff would not have been able to structure his leave to avoid being fired. According to court papers, plaintiff Richard Conoshenti had worked as a mechanic for PSE&G since 1972. In April and May 1999, PSE&G accused Conoshenti of keeping inaccurate time records and leaving his shift early to take a shower. Conoshenti insisted that it was an accepted practice to correct times that were inappropriately recorded and that he needed a shower before ending his shift because he was working with chemicals that irritated his skin. To avoid being fired, Conoshenti agreed to enter into a “last-chance agreement” that threatened immediate firing if he violated any of its provisions — including that he report to work every day on time. In December 1999, Conoshenti was seriously injured in an auto accident and soon after told his boss that he would be out of work for at least two weeks. Doctors later told Conoshenti that he had a torn rotator cuff and would need surgery. When Conoshenti notified PSE&G of his plan to undergo the surgery, Conoshenti said, he was told to take time to recuperate. He later informed PSE&G that he would be unable to work until April 2000. But in the meantime, PSE&G began taking the administrative steps to fire Conoshenti for violation of the last-chance agreement. On the advice of his union, Conoshenti notified PSE&G that he wanted his leave to be counted as FMLA leave. Corporate memos show that PSE&G officials decided soon after to “hold off” on firing Conoshenti — which they had planned to do by mail in the first week of January 2000 — and decided instead to fire him on his first day back to work. Conoshenti underwent surgery for his torn rotator cuff and claimed that throughout his recovery, he was told by several officials at PSE&G to take his time recovering and to not hurry back until he was “100 percent.” On April 17, 2000, Conoshenti reported back to work. After one hour on the job, he was called in to his supervisor’s office and told he was being fired for violation of the last-chance agreement. The termination letter said: “On Dec. 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.” In his suit, Conoshenti claimed that he was never properly informed of his FMLA rights, including the fact that he was entitled to only 12 weeks of protected leave. If he had understood his rights, the suit said, he could have postponed the surgery to a subsequent FMLA period to preserve his job. Now the 3rd Circuit has ruled that Conoshenti’s claim — at least in theory — was a valid one and that U.S. District Judge Joseph A. Greenaway Jr. of the District of New Jersey therefore erred in dismissing the case. Writing for the court, Senior U.S. Circuit Judge Walter K. Stapleton noted that it was stipulated for purposes of summary judgment that PSE&G did not advise Conoshenti of his rights under the FMLA. “Conoshenti argues,” Stapleton said, “that PSE&G’s failure to advise him of his right to 12 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.” If he received the proper FMLA advice, Stapleton said, “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 FMLA. “We conclude that this is a viable theory of recovery,” Stapleton wrote, “and that the district court accordingly erred in granting summary judgment on it against Conoshenti.” Stapleton, who was joined by 3rd Circuit Judges Richard L. Nygaard and Julio M. Fuentes, found that Greenaway appeared to have accepted Conoshenti’s theory as a valid one but erred in his approach to the summary judgment standard on the issue. In dismissing the case, Greenaway said Conoshenti’s theory could be used only to delay the commencement of his 12 weeks of FMLA-protected leave — from Dec. 6 to Dec. 27, the date when Conoshenti advised his employer by letter that he was invoking his FMLA rights. The case was fatally flawed, Greenaway said, because Conoshenti had “no evidence that he could have made a different choice had PSE&G informed him that his FMLA leave began on Dec. 6″ and made “only the bare assertion that he could have made different decisions.” Stapleton disagreed, saying, “Nothing in the record … indicates that Conoshenti knew that he was entitled to only 12 weeks of protected leave. … The summary judgment record thus does not speak to Conoshenti’s knowledge of his relevant FMLA rights on Dec. 27 or thereafter during his leave.” Greenaway erred, Stapleton said, by failing to put the burden on the defendant. “PSE&G never asserted that Conoshenti could not meet his burden of proving that he could have structured his leave differently. Nor did PSE&G argue that a showing of prejudice was an essential element of Conoshenti’s claim or that such a showing was material in any way,” Stapleton wrote. “Accordingly, we conclude that PSE&G, as the moving party, did not satisfy its initial burden of pointing to an absence of evidence as to whether Conoshenti had been prejudiced. Conoshenti was therefore not required … to respond with specific facts establishing a genuine issue with respect to the prejudice requirement.”

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