NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 20-2645 _____________
MANUEL PONTES, PH.D., Appellant
v.
ROWAN UNIVERSITY _____________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1-18-cv-17317) District Judge: Honorable Renee M. Bumb ______________
Submitted Under Third Circuit. L.A.R. 34.1(a) May 27, 2021 ______________
Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, AND ROBRENO, * District Judge
(Opinion Filed: September 13, 2021)
* Honorable Eduardo C. Robreno, District Judge, United States District Court for the Eastern District of Pennsylvania, sitting by designation. ______________
OPINION * ______________
GREENAWAY, JR., Circuit Judge.
Manuel Pontes, Ph.D. brought suit against Rowan University (the “University”), a
public university, alleging that the University violated the Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601, et seq., and the New Jersey Constitution. Dr. Pontes alleged
that the University retaliated against him for taking FMLA-protected leave, interfered
with his ability to take future FMLA leave, and violated his substantive due process
rights by interfering with his employment by a state institution. The District Court
dismissed Dr. Pontes’s claims pursuant to the University’s Rule 12 motion. We will
affirm in part and reverse in part.
I. Background
In the fall of 2017, Dr. Pontes travelled to India to provide emergency assistance
to his ninety-year-old mother. Due to the exigent circumstances, Dr. Pontes did not
provide the University notice of his travel. Dr. Pontes ensured that his classes would be
handled during his absence. Upon his return to the United States, Dr. Pontes’s supervisor
inquired about why Dr. Pontes’s timesheet indicated that he taught while he was out of
the country. Dr. Pontes responded that his conduct was consistent with past practices
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 within his academic department. Dr. Pontes’s timesheet for the period covering his trip
to India was approved.
On or around March 11, 2018, Dr. Pontes’s mother again required assistance,
requiring Dr. Pontes to return to India. Dr. Pontes departed during the University’s
spring break and intended to return for classes after spring break. He did not apply for
FMLA leave prior to his departure. But after his mother suffered two falls and was
seriously injured, Dr. Pontes informed the University that he needed to apply for FMLA
leave and would continue teaching remotely until a replacement could be located. The
University approved Dr. Pontes’s request for FMLA leave, effective March 24, 2018.
On April 24, 2018, Dr. Pontes’s supervisor informed him that the University was
going to suspend him without pay for one week due to his absences. Dr. Pontes objected
and the University reversed course, rescinding the suspension in a letter dated June 4,
2018. In the same letter, the University stated that it intended to begin a “formal de-
tenure process and termination of Dr. Pontes’[s] employment in light of his absence
without notification, dereliction of instructional duties, and the fact that this [was] not the
first time [Dr. Pontes had] engaged in this type of conduct.” Am. Compl., Ex. A.
After Dr. Pontes’s counsel contacted the University, the University once again
changed course. On September 4, 2018, the University informed Dr. Pontes that he
would be suspended for a three-week period, December 29, 2018 through January 18,
2019. Dr. Pontes inferred from the University’s communication that it was reversing the
decision to initiate de-tenure proceedings. Dr. Pontes alleges that his “pay for January
2019 was substantially reduced.” Am. Compl. ¶ 16.
3 On November 20, 2018, Dr. Pontes initiated the instant suit in the Superior Court
of New Jersey, Camden County. The University removed the case to the U.S. District
Court for the District of New Jersey on December 18, 2018. The University’s initial
motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), was granted
without prejudice, and Dr. Pontes filed the operative amended complaint on September
27, 2019.
The University again moved to dismiss pursuant to Rule 12(b)(6). As a threshold
matter, the District Court decided whether it could consider the University’s 2017-2018
Academic Calendar, which was attached to the University’s first motion to dismiss, and
payroll documents, which were attached to the University’s second motion to dismiss and
its reply brief. Finding that both the calendar and the payroll documents were “integral”
to Dr. Pontes’s claims, the District Court concluded that it could consider those
documents in its analysis of the University’s motion to dismiss. J.A. 12–13. The District
Court then found that Dr. Pontes lacked Article III standing to assert his FMLA claims
because his “redressable injuries ha[d] already been cured through the University’s
corrective action.” J.A. 16. The District Court also found that even if Dr. Pontes had
standing to bring his claims, those claims were nonetheless deficient. This timely appeal
followed.
II. Discussion
The District Court had original jurisdiction over Dr. Pontes’s FMLA claim
pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over his substantive due
process claim under 28 U.S.C. § 1367. We have jurisdiction pursuant to 28 U.S.C.
4 § 1291. “We exercise plenary review over a district court’s decision to grant a motion to
dismiss.” Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004).
A. The District Court Erred When Reviewing the University’s Standing Challenge
We first address the legal standard that governs our review of the University’s
challenge to Dr. Pontes’s standing. The University styled its motion to dismiss as one
brought pursuant to Rule 12(b)(6) that attacked Dr. Pontes’s Article III standing. The
District Court accepted the University’s framing of the motion and considered the
challenge to Dr. Pontes’s standing under Rule 12(b)(6). We disagree with that approach
and conclude that the University’s challenge to Dr. Pontes’s standing should have been
considered under Rule 12(b)(1). In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (“A motion to dismiss for want of
standing is . . . properly brought pursuant to Rule 12(b)(1), because standing is a
jurisdictional matter.” (quoting Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.
2007)) (alteration in original)).
1. Legal Standard
We must first determine whether the University’s challenge to Dr. Pontes’s
standing is a “facial” attack or a “factual” attack “because that distinction determines how
the pleading must be reviewed.” Const. Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d
Cir. 2014) (stating that a court “has to first determine . . . whether a Rule 12(b)(1) motion
presents a ‘facial’ attack or a ‘factual’ attack on the claim at issue”). “A facial attack, as
the adjective indicates, is an argument that considers a claim on its face and asserts that it
5 is insufficient to invoke the subject matter jurisdiction of the court,” while a factual attack
“is an argument that there is no subject matter jurisdiction because the facts of the
case . . . do not support the asserted jurisdiction.” Id. at 358. When “reviewing a facial
attack, ‘the court must only consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most favorable to the plaintiff.’” Id.
(quoting Schering Plough, 678 F.3d at 243). When reviewing a factual attack, the district
court “may look beyond the pleadings to ascertain the facts.” Id. at 358.
The University argued that Dr. Pontes lacked standing because he “failed to allege
any ‘injury in fact’. . . . [b]ecause his allegations are merely conjecture and hypothetical.”
J.A. 49. The University’s attack on Dr. Pontes’s standing was confined to the facts and
allegations contained in the operative complaint, and, as a result, we conclude that it was
a facial attack, not a factual attack. 1 See Const. Party of Pa., 757 F.3d at 358–59
(concluding that, contrary to the district court’s assessment that the defendants’ attack
was a factual attack, the defendants advanced a facial attack because the defendants did
not raise a factual dispute). Thus, we consider whether Dr. Pontes’s claims can withstand
the University’s facial attack.
1 In its recitation of facts in the motion to dismiss, the University included a footnote averring that Dr. Pontes was “made whole in March 2019, when [the University] repaid [Dr.] Pontes the shortfall in pay from January 2019.” J.A. 47. Despite this allegation, which arguably supports the conclusion that the University’s standing challenge was a factual attack, we conclude that the University did not mount a factual attack because the University did not argue that the repayment of Dr. Pontes’s withheld wages impacted his Article III standing. 6 The scope of federal judicial power is limited to the adjudication of “cases” and
“controversies.” U.S. Const., art. III, § 2. “The courts have developed several justiciability
doctrines to enforce the case-or-controversy requirement, and ‘perhaps the most important
of these doctrines’ is the requirement that ‘a litigant have “standing” to invoke the power
of a federal court.’” Schering Plough, 678 F.3d at 244 (quoting Allen v. Wright, 468 U.S.
737, 750 (1984)). “A plaintiff must ‘demonstrate standing for each claim he seeks to
press.’” Long v. Se. Pa. Transp. Auth., 903 F.3d 312, 323 (3d Cir. 2018) (quoting Neale v.
Volvo Cars of N. Am., LLC, 794 F.3d 353, 359 (3d Cir. 2015)).
Article III standing “consists of three elements[:] [t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (citation
omitted). An “injury-in-fact requires ‘an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.’” Const. Party of Pa., 757 F.3d at 361 (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992)). “[T]he traceability prong focuses on who inflicted that harm[,
and] [t]he plaintiff must establish that the defendant’s challenged actions, and not the
actions of some third party, caused the plaintiff’s injury.” Toll Bros., Inc. v. Twp. of
Readington, 555 F.3d 131, 142 (3d Cir. 2009) (emphasis omitted). Redressability is
‘“closely related’ to traceability, and the two prongs often overlap.” Id. (quoting Pub.
Interest Research Grp. of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 73 (3d Cir.
1990)). “[T]raceability looks backward (did the defendants cause the harm?),” and
7 “redressability looks forward (will a favorable decision alleviate the harm?).” Id.
“Redressability is not a demand for mathematical certainty. It is sufficient for the
plaintiff to establish a ‘substantial likelihood that the requested relief will remedy the
alleged injury in fact.’” Id. at 143 (quoting Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens,
529 U.S. 765, 771 (2000)).
2. Analysis
Dr. Pontes does not have standing to bring his FMLA interference claim because
he has not asserted a sufficient injury in fact to support the claim. Dr. Pontes alleged that
the University’s conduct “will interfere with [his] ability to take future FMLA leave as
they have created in him a fear that doing so will subject him to disciplinary proceedings
[including] withholding pay and threatened de-tenure.” Am. Compl. ¶ 25 (emphasis
added). Dr. Pontes does not allege that the University denied him the opportunity to take
FMLA leave. In fact, Dr. Pontes alleges that the University approved his FMLA leave
when he requested it. Because Dr. Pontes’s FMLA interference claim is premised upon a
potential future interference with or denial of his ability to take FMLA leave, his alleged
injury is too conjectural and hypothetical to support Article III standing. 2 See Reilly v.
2 On appeal, Dr. Pontes contends that he has Article III standing based, in part, on the University’s withholding of his wages, but he fails to distinguish between his interference and retaliation claims. Even if we were to conclude that Dr. Pontes had Article III standing to pursue his interference claim, we would affirm the District Court’s dismissal of that claim based on his failure to state a claim. His failure to allege that he was denied benefits under the FMLA is fatal to his interference claim. See Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005) (“In order to assert a claim of deprivation of entitlements, the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them.”). 8 Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (“Allegations of ‘possible future injury’
are not sufficient to satisfy Article III. Instead, ‘[a] threatened injury must be ‘certainly
impending[]’ and ‘proceed with a high degree of immediacy, so as to reduce the
possibility of deciding a case in which no injury would have occurred at all.’” (first
alteration in original) (internal citations omitted) (quoting Whitmore v. Arkansas, 495
U.S. 149, 151 (1990), then quoting Lujan, 504 U.S. at 564 n.2)).
Dr. Pontes has standing to bring his FMLA retaliation claim and his substantive
due process claim. In support of his retaliation claim, Dr. Pontes alleged that the
University punished him for “expressing his rights under the FMLA” by reducing his pay
in January 2019. Am. Compl. ¶ 16. Similarly, in support of his due process claim, Dr.
Pontes alleged that the reduction in pay was a “deprivation of his property rights.” Am.
Compl. ¶ 19. The withholding of an employee’s pay as punishment for invoking his or
her rights under the FMLA is an actual, concrete, and particularized injury. See 29
C.F.R. § 825.220(c) (providing that the FMLA’s “prohibition against interference
prohibits an employer from discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to exercise FMLA rights”).
Assuming that Dr. Pontes has a property interest in his pay as a state employee, the
withholding of that pay is a sufficient injury in fact.
As to the redressability prong, the District Court concluded that (1) Dr. Pontes
“lacks a redressable injury because the alleged harms have already been cured by the
University,” and (2) because Dr. Pontes’s “redressable injuries have already been cured
through the University’s corrective action, [he] would not be entitled to any further relief,
9 such as punitive damages or attorneys’ fees, even if he could succeed in demonstrating
that [the University] violated the FMLA.” J.A. 16. We disagree with both conclusions
and conclude that Dr. Pontes satisfies the traceability and redressability prongs for his
retaliation claim and his due process claim. 3
The District Court’s view that Dr. Pontes’s harms had been “cured” was based on
a theory developed in an unpublished, out-of-circuit district court opinion, King v. Inova
Health Care Servs., No. 1:19-CV-31, 2020 WL 2108728 (E.D. Va. May 1, 2020). King,
however, is inapposite because in that case the fulsome factual record presented at
summary judgment reflected that the “plaintiff lost neither compensation nor benefits as a
result of [the] defendant’s actions.” King, 2020 WL 2108728, at *12. Here, the litigation
is at the motion to dismiss stage and lacks the factual record that would be presented at
the summary judgment stage. Also, Dr. Pontes alleged that the University withheld his
wages and the University concedes that it did so. 4 This Court, moreover, has never held
that a defendant could “cure” alleged FMLA violations by returning wages that it
previously withheld. 5
3 The second prong of standing—traceability—does not require an extended discussion in this case. Dr. Pontes’s alleged injuries arise from the University’s withholding of his wages, and there can be no reasonable dispute about whether his alleged injuries are traceable to the University’s conduct. 4 We reiterate that the District Court erred when considering the University’s allegation that it repaid Dr. Pontes his withheld wages—a fact that was not alleged in Dr. Pontes’s complaint—as part of its analysis of a facial attack to standing pursuant to Rule 12(b)(1). 5 In fact, several sister circuits have held that temporary loss of use of money is itself a sufficiently concrete injury to establish standing. See, e.g., Van v. LLR, Inc., 962 F.3d 1160, 1164 (9th Cir. 2020) (“[W]e hold that the temporary loss of use of one’s money constitutes an injury in fact for purposes of Article III.”); MSPA Claims 1, LLC v. Tenet 10 The FMLA provides for multiple forms of relief, including: (1) “any wages,
salary, employment benefits, or other compensation denied or lost to such employee by
reason of the violation,” or (in certain cases) other “actual monetary losses sustained by
the employee as a direct result of the violation,” (2) interest on denied or lost wages or
actual monetary losses; (3) liquidated damages, and (4) “equitable relief as may be
appropriate, including employment, reinstatement, and promotion.” 29 U.S.C.
§ 2617(a)(1). To be entitled to these remedies, Dr. Pontes must prove that the University
violated the FMLA, and “even then, [the FMLA] provides no relief unless the employee
has been prejudiced by the violation.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S.
81, 89 (2002).
The District Court correctly found that (1) under the FMLA, Dr. Pontes is not
entitled to punitive damages or damages for pain and suffering or emotional distress, and
(2) a favorable judgment was a prerequisite for an award of attorneys’ fees. J.A. 16–17.
The District Court erred, however, when it did not consider, inter alia, (1) whether Dr.
Pontes’s wages could be considered denied or lost, (2) whether this was a case where Dr.
Pontes suffered any actual losses recoverable under the FMLA during the period when
the University withheld his wages, (3) whether Dr. Pontes would be entitled to interest on
Fla., Inc., 918 F.3d 1312, 1318 (11th Cir. 2019) (“The inability to have and use money to which a party is entitled is a concrete injury.”); Habitat Educ. Ctr. v. U.S. Forest Servs., 607 F.3d 453, 457 (7th Cir. 2010) (“Every day that a sum of money is wrongfully withheld, its rightful owner loses the time value of the money.”); cf. In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 66 (D.C. Cir. 2019) (per curiam) (addressing damages rather than standing and noting that “[t]he delay in those Plaintiffs’ receipt of their refunds, and the forgone time value of that money, is an actual, tangible pecuniary injury”). 11 (i) any denied or lost wages, or (ii) any actual losses, (4) whether Dr. Pontes would be
entitled to liquidated damages, and (5) whether Dr. Pontes would be entitled to equitable
relief.
Because Dr. Pontes seeks (1) to recover the legal fees and costs associated with
securing legal representation to respond to the University’s actions, (2) “monetary
losses,” and (3) “liquidated damages,” Am. Compl. ¶¶ 22, 25, we conclude that he has
satisfied the redressability prong of the standing analysis for his FMLA retaliation and
substantive due process claims.
To sum up, Dr. Pontes does not have Article III standing to pursue his FMLA
interference claim. He does, however, have Article III standing to pursue his FMLA
retaliation claim and his substantive due process claim.
In addition to attacking Dr. Pontes’s standing, the University attacked the merits of
Dr. Pontes’s claim. We now address the District Court’s conclusions as to the merits of
Dr. Pontes’s FMLA retaliation claim and his substantive due process claim.
B. Dr. Pontes Stated a Claim for FMLA Retaliation
The District Court concluded that even if Dr. Pontes had Article III standing, his
FMLA Retaliation claim was nevertheless subject to dismissal under Rule 12(b)(6)
because Dr. Pontes’s “allegations imply that the University had a legitimate, non-
discriminatory, and non-retaliatory reason for imposing discipline.” J.A. 21. The District
Court also concluded that Dr. Pontes’s allegations failed “to support any inference . . .
12 that the University’s stated reasons for discipline were pretextual and causally connected
to Plaintiff’s approved FMLA leave.” J.A. 22–23. We disagree. 6
“[I]n deciding a motion to dismiss, all well-pleaded allegations of the complaint
must be taken as true and interpreted in the light most favorable to the plaintiffs, and all
inferences must be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521,
526 (3d Cir. 2009) (citation omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted).
6 Despite setting forth the elements that Dr. Pontes was required to plead to establish a prima facie case for retaliation under the FMLA, the District Court then subjected Dr. Pontes’s claims to the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). That framework applies when the plaintiff’s claim is based on circumstantial evidence and is most often employed at summary judgment. See, e.g., Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014). By accepting the University’s stated reasons for disciplining Dr. Pontes as true and then requiring Dr. Pontes to offer evidence to rebut those reasons, without the benefit of discovery, the District Court misapplied the McDonnell Douglas burden-shifting framework, and so it erred in dismissing Dr. Pontes’s FMLA retaliation claim. See Castleberry v. STI Grp., 863 F.3d 259, 266 (3d Cir. 2017). 7 The District Court did not abuse its discretion when considering Dr. Pontes’s payroll records, in the context of a Rule 12(b)(6) motion, because it correctly concluded they are integral to his claims. Dr. Pontes claims that “he was punished for expressing his rights under the FMLA, insofar as his pay for January 2019 was substantially reduced.” J.A. 34. Thus, the payroll records are integral to the harm Dr. Pontes alleges, and he likely relied on those records to discover that Rowan withheld his wages. Moreover, considering the payroll records prevents Dr. Pontes from “extracting an isolated” portion of those records, which also show that the University reimbursed Dr. Pontes. See Burlington Coat Factory, 114 F.3d at 1426.
The District Court also acted within its discretion to consider the University’s academic calendar because it is both a matter of public record and integral to Dr. Pontes’s claims. 13 To assert a prima facie claim for retaliation under the FMLA, Dr. Pontes had to
allege facts from which it may be inferred that “(1) []he invoked h[is] right to FMLA-
qualifying leave, (2) []he suffered an adverse employment decision, and (3) the adverse
action was causally related to h[is] invocation of rights.” Budhun v. Reading Hosp. &
Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014). Dr. Pontes established his prima facie claim
by plausibly alleging that (1) he requested and took FMLA leave in relation to his second
trip to India, (2) he suffered an adverse employment decision when the University
withheld his pay, and (3) the withholding of his pay was causally related to his taking
FMLA leave because it was punishment for his being “absent from the classroom without
justification.” Am. Compl. ¶ 16.
The University raises several unavailing arguments in opposition to the conclusion
that Dr. Pontes asserted a prima facie claim for retaliation under the FMLA. First, the
University contends that Dr. Pontes is asserting a new theory of his case on appeal or
otherwise attempting to amend his complaint via his appellate brief. These arguments
fail because they simply ignore relevant portions of the amended complaint in which Dr.
Pontes bases his retaliation claim on the University’s withholding of his pay. See Am.
Compl. ¶ 22.
First, the public has unqualified access to the University’s academic calendars on its website, and Dr. Pontes does not dispute its authenticity. Second, the calendar is integral to Dr. Pontes’s claims. Dr. Pontes alleged that “[w]hen he left [to visit his mother], [the University] was on its Spring Break vacation” and that he “intended to return for classes after Spring Break.” Am Compl. ¶ 9. Thus, when the University’s spring break occurred is integral to Dr. Pontes’s allegations, and the Court acted within its discretion to consider the calendar. 14 Second, the University contends that “Dr. Pontes has failed to present any
authority standing for the proposition that withholding pay temporarily, in the absence of
a disciplinary action, constitutes a violation of § 2615 of the FMLA.” Appellee’s Br. 21.
The substance of this argument—that withholding an employee’s pay is not an adverse
employment decision under the FMLA—contradicts our view that an adverse
employment decision “is an action that ‘alters the employee’s compensation, terms,
conditions, or privileges of employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an employee.’” Budhun, 765 F.3d
at 257 (emphasis added) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300
(3d Cir. 1997)).
Third, the University argues that Dr. Pontes cannot show that he was prejudiced
because the University “took timely corrective action.” Appellee’s Br. 21. But prejudice
is not an element of the prima facie case for an FMLA retaliation claim and Dr. Pontes
was not required to plead that he was prejudiced.
Fourth, the University repeats the District Court’s conclusion that Dr. Pontes’s
allegations fail to support an inference that the University’s reasons for disciplining Dr.
Pontes were pretextual or causally connected to his FMLA leave. The assessment of
whether the University’s reasons for disciplining Dr. Pontes were pretextual is a part of
the McDonnell Douglas analysis and that analysis is better left for the summary judgment
stage because it relies upon the parties’ competing evidence. As to whether the
University’s withholding of Dr. Pontes’s wages was causally connected to his taking
FMLA leave, we have stated that “whether a causal link exists ‘must be considered with a
15 careful eye to the specific facts and circumstances encountered.’” Budhun, 765 F.3d at
258 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000)).
The FMLA provides that “[e]mployers ‘cannot use the taking of FMLA leave as a
negative factor in employment actions.’” Id. (quoting 29 C.F.R. § 825.220(c)). Under
the facts and circumstances of the instant case and at this stage of the litigation, Dr.
Pontes’s allegation that the University withheld his wages as punishment for taking
FMLA leave is sufficient to establish a causal connection.
C. Dr. Pontes Did Not State a Substantive Due Process Claim Under the New Jersey Constitution
The District Court dismissed Dr. Pontes’s substantive due process claim under the
New Jersey Constitution, finding that based on this Court’s holding in Nicholas v.
Pennsylvania State University, 227 F.3d 133 (3d Cir. 2000), “tenured public employment
is not a property interest entitled to substantive due process protection.” J.A. 18. The
District Court further reasoned that “if public employees cannot assert a property interest
in continued tenured employment, they also cannot assert a claim for continued salary
from the same employment.” J.A. 19. As a result, Dr. Pontes could not assert a
substantive due process claim based on a property interest in his withheld salary. We
agree.
In Nicholas, this Court stated that a plaintiff bringing “a non-legislative
substantive due process claim . . . ‘must establish as a threshold matter that he has a
protected property interest to which the Fourteenth Amendment’s due process protection
applies.’” Nicholas, 227 F.3d at 139–40 (quoting Woodwind Ests., Ltd. v. Gretkowski,
16 205 F.3d 118, 123 (3d Cir. 2000), abrogated on other grounds by United Artists Theatre
Cir., Inc. v. Twp. of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003)). That protected
property interest must be of a “particular quality,” which “depends on whether that
interest is ‘fundamental’ under the United States Constitution.” Id. at 140. The Nicholas
Court held that the plaintiff’s claimed property interest in tenured public employment was
not a “fundamental” property interest entitled to substantive due process protection. Id.
at 142.
Applying the holding in Nicholas to Dr. Pontes’s substantive due process claim,
we agree with the reasoning of the District Court. If tenured public employment is not a
fundamental property interest entitled to substantive due process protection, then Dr.
Pontes’s withheld salary, which is derived from his tenured public employment, is
similarly not fundamental and not entitled to substantive due process protection under the
United States Constitution and the New Jersey Constitution. See Roman Check Cashing,
Inc. v. N.J. Dep’t of Banking & Ins., 777 A.2d 1, 3 (N.J. 2001) (“In cases raising
substantive due process claims under our state constitution, this Court uses the ‘standards
developed by the United States Supreme Court under the federal Constitution.’” (quoting
State Farm Mut. Auto. Ins. Co. v. State, 590 A.2d 191, 198 (N.J. 1991))).
Dr. Pontes contends that the District Court mistakenly relied on Salah v. Gilson,
No. A-3617-11T2, 2013 WL 1688379 (N.J. Super. Ct. App. Div. Apr. 19, 2013).
Appellant’s Br. 24. Specifically, he argues that Salah stands for the proposition that a
tenured teacher has a fundamental property interest entitled to substantive due process
protections. See Appellant’s Br. 24. Dr. Pontes, however, misreads and misquotes Salah,
17 which held that “a non-tenured teacher does not possess a sufficient property interest in
continued employment to trigger substantive due process protection.” Salah, 2013 WL
1688379, at *10 (emphasis added). The District Court, accordingly, did not err when it
dismissed Dr. Pontes’s substantive due process claim.
III. Conclusion
For the reasons set forth above, we will affirm the District Court’s dismissal of
Pontes’s FMLA interference claim and his substantive due process claim. We will vacate
the District Court’s dismissal of Dr. Pontes’s FMLA retaliation claim and remand for
further proceedings consistent with this opinion.