NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2261
______________
MATTHEW CALIO,
Appellant
v.
CAMDEN COUNTY BOARD OF
CHOSEN FREEHOLDERS,
doing business as
CAMDEN COUNTY DEPARTMENT OF CORRECTIONS;
XYZ CORP. 1-10; ABC 1-10, Individuals (all ficticious names and/or
entities who should be identified through discovery)
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civ. Action No. 1-19-cv-08393)
District Judge: Honorable Renee M. Bumb
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 24, 2023
______________
Before: JORDAN, GREENAWAY, JR., and MCKEE, Circuit Judges.
(Opinion Filed: May 26, 2023)
______________
OPINION*
______________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Matthew Calio, an employee at the Camden County Detention Center (CCDC),1
seeks reversal of the District Court’s dismissal of his complaint. Although the District
Court did not use the word “moot” in its opinion, its analysis and conclusion that, based
on the concessions from the CCDC and the lack of damages to Calio, there were no
issues left for trial, essentially embraces our mootness jurisprudence. Since this analysis
is correct, we will affirm the order dismissing the complaint. 2
I. Background
Despite what can only be described as a tortured procedural history, the facts of
this case are relatively straightforward. Calio began working at the CCDC as a
Corrections Officer in 2001. In addition to his work responsibilities, he assists with the
care of his mother, who suffers from dementia. Calio applied for intermittent leave
pursuant to the Family and Medical Leave Act (FMLA) and the New Jersey Family
Leave Act3 (NJFLA) four times: once in 2016, once in 2017, and twice in 2018. The first
application was denied because Calio had not worked enough hours to qualify for FMLA
1
The defendant/appellee in this case is the Camden County Board of Chosen
Freeholders, doing business as the Camden County Department of Corrections. Since the
CCDC took all the actions at issue before us, we will refer to the appellee as the CCDC.
2
Even if the District Court’s analysis did not implicate the mootness doctrine, we
would raise “the issue sua sponte because it implicates our jurisdiction.” Donovan ex rel
Donovan v. Punxsutaney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir. 2003).
3
After dismissing the FMLA claims, the District Court declined to exercise
supplemental jurisdiction over Calio’s NJFLA claims. Because Calio does not challenge
that decision here, we will only address the FMLA claims.
2
leave, but the other three applications were approved.
Specifically, he received three designation notices, 4 each of which authorized his
use of FMLA leave during a specific six-month period. The first designation notice,
dated March 24, 2017, covered the period from March 21, 2017 through September 21,
2017, and authorized Calio to use FMLA leave up to three times per month, each time
with a duration of five days. The second designation notice, dated June 12, 2018,
covered the period of June 11, 2018 through December 11, 2018, and authorized Calio to
use FMLA leave for an undetermined frequency and duration. The third designation
notice, dated December 4, 2018, covered the period from December 12, 2018 through
June 12, 2019, and authorized Calio to use FMLA leave once per month, for a duration of
five days.
At issue is the request that was approved in a designation notice dated December
4, 2018. As already noted, the designation notice authorized Calio to take intermittent
FMLA leave for five days, once per month. 5 The frequency and length of the leave was
4
A designation notice “informs the employee whether the FMLA leave request is
approved; [it] also informs the employee of the amount of leave that is designated and
counted against the employee’s FMLA entitlement. An employer may also use this form
to inform the employee that the certification is incomplete or insufficient and additional
information is needed.” U.S. Dep’t of Labor, Wage and Hour Div.,
https://www.dol.gov/agencies/whd/fmla/forms (last visited May 11, 2023).
5
The CCDC viewed once per month as meaning once every 30 days, rather than
once every calendar month, which is consistent with timeframes set forth in the FMLA.
See 29 C.F.R. §§ 825.300(d)(6), 308(c).
The appropriate method for counting “per month” is not at issue. As explained
below, regardless of how “per month” is determined, Calio exceeded his authorized
FMLA leave usage twice in January 2019.
3
based on the medical certification Calio submitted. In the certification, his mother’s
physician estimated that Calio’s mother would have flare ups once every four weeks,
lasting between eight hours and five days per flare up. The designation notice also
informed Calio that, pursuant to the CCDC’s policy, he was required to use his sick days
concurrently with his FMLA leave. This requirement is authorized by the FMLA. 29
U.S.C. § 2612(d)(2); 29 C.F.R. § 825.207(a).
Calio twice exceeded the FMLA leave authorized by his December 4, 2018
designation notice. The first time he exceeded his authorized FMLA leave was on
January 6, 2019, which was within 30 days of his December 15, 2018, use of FMLA
leave. He next took FMLA leave on January 14, 2019, which was approved because it
was the first use of FMLA leave within the 30-day period of January 12, 2019 to
February 12, 2019. On January 28, 2019, he sought to use FMLA leave again. That
request was denied because it was the second request within the 30-day period of January
12, 2019 to February 12, 2019.6
These violations of the FMLA policy led the CCDC to provide Calio with two
notices of disciplinary action on February 19, 2019. Together, the notices of disciplinary
action recommended four days’ suspension. On March 26, 2019, Calio was notified that
the discipline would not be imposed and he would not need to serve any suspension time.
He was further notified that “[t]he 2 dates utilized that initiated the Staff Complaints have
6
Calio argues that he was authorized to take leave on January 6, 2019, as it was
his first use of FMLA leave that month. Even if the January 6, 2019 leave was an FMLA
approved absence, Calio still had two additional, unapproved leave days in January 2019:
January 14, 2019 and January 28, 2019.
4
been converted to sick days and this matter has been officially closed.” Suppl. App. 3.
The memorandum also encouraged Calio to recertify his FMLA leave if he needed more
time than what was approved in the designation notice.
After discovery, Calio and the defendant cross-moved for summary judgment.
The District Court administratively terminated both motions and sought additional
briefing on the procedures used to approve Calio’s FMLA leave.7
New motions for summary judgment were filed by both parties, which the District
Court denied based on its finding that genuine disputes of fact existed, albeit not relevant
to this appeal. In doing so, the District Court noted that “Calio was not terminated,
demoted, or reassigned, nor did he otherwise suffer any adverse financial or employment
effects.” App. 72.
After the Joint Final Pretrial Order (“JPTO”) was filed, the District Court ordered
additional briefing from the parties on what issues remained for trial. Calio reiterated his
claims for equitable relief. In addition, he asserted a claim for injunctive relief, based on
a theory that the CCDC had a practice of strictly enforcing FMLA approvals. Calio also
sought a declaratory judgment that the CCDC’s practice violated the FMLA.
After reviewing both parties’ submissions, the District Court dismissed Calio’s
federal claims with prejudice and declined to exercise supplemental jurisdiction over the
state claims. The District Court found that Calio “failed to show that he suffered any
7
The District Court wanted to clarify whether the CCDC’s approval of a five-day
period, once per month, was sufficient, or if Calio was entitled to more FMLA leave
beyond what the designation notice approved.
5
damages” and that “there is no issue for the jury to decide.” App. 10, 13. Specifically,
the District Court observed that Calio failed to show he suffered any damages because, as
it turned out, he did not actually lose any of his sick days and any mention of FMLA
leave in his performance reviews inured to Calio’s benefit, not detriment. Further,
punitive or nominal damages are not recoverable under the FMLA.
The District Court also concluded that injunctive relief and a declaratory judgment
were improper because the “argument that [the CCDC] violated the FMLA merely by
disciplining employees who exceeded their intermittent (i.e., frequency and duration)
FMLA allotments is misguided and without merit.” App. 8. Alternatively, the theory
underlying these claims was based on evidence not contained in the JPTO. The District
Court noted that allowing Calio to pursue them “would essentially be allowing [Calio] to
add a claim on the eve of trial” and “would be a miscarriage of justice.” App. 10.
Calio filed a timely notice of appeal. Before us, he argues: (1) unforeseeable,
intermittent leave cannot be strictly enforced, by its nature, so the original designation
notice capping him at a five-day period once per month is, in effect, unenforceable; (2) he
was therefore protected by the FMLA when he took the two days of unauthorized leave
in January 2019; (3) converting those days to sick leave is FMLA interference; (4)
including FMLA leave in his attendance record is a negative inference and the District
Court made a credibility determination, thus erroneously granting summary judgment;8
8
The argument regarding the grant of summary judgment is irrelevant because the
District Court dismissed the case.
6
(5) the District Court applied the wrong standard when prohibiting him from amending
the JPTO; and (6) the District Court’s decision to dismiss the case was an unwarranted
sanction. As a result, Calio seeks equitable relief and an injunction barring strict
enforcement of FMLA approvals. He also wishes to recover costs and fees.
II. Legal standard 9
“We review de novo a district court’s determination that claims are moot.” CMR
D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 622 (3d Cir. 2013). “A ‘case becomes
moot only when it is impossible for a court to grant any effectual relief whatever to the
prevailing party.’ The case remains live ‘[a]s long as the parties have a concrete interest,
however small, in the outcome of litigation.’” MOAC Mall Holdings LLC v. Transform
Holdco LLC, 143 S.Ct. 927, 934 (2023) (alteration in original) (citations omitted)
(quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)).
“[T]he central question of all mootness problems is whether changes in
circumstances that prevailed at the beginning of the litigation have forestalled any
occassion [sic] for meaningful relief.” Jersey Cent. Power & Light Co. v. New Jersey,
772 F.2d 35, 39 (3d Cir. 1985). “The court’s ability to grant effective relief lies at the
heart of the mootness doctrine. That is, ‘[i]f developments occur during the course of
adjudication that eliminate a plaintiff’s personal stake in the outcome of a suit or prevent
a court from being able to grant the requested relief, the case must be dismissed as
9
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
7
moot.’”10 Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216
(3d Cir. 2003) (alteration in original) (citation omitted) (quoting Blanciak v. Allegheny
Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996)).
The FMLA
provides no relief unless the employee has been prejudiced by the violation:
The employer is liable only for compensation and benefits lost “by reason
of the violation,” [29 U.S.C.] § 2617(a)(1)(A)(i)(I), for other monetary
losses sustained “as a direct result of the violation,” [29 U.S.C.]
§ 2617(a)(1)(A)(i)(II), and for “appropriate” equitable relief, including
employment, reinstatement, and promotion, [29 U.S.C.] § 2617(a)(1)(B).
The remedy is tailored to the harm suffered.
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).
Here, Calio seeks equitable relief for the discipline he suffered (the alleged
suspension), the conversion of his “protected leave days to unprotected sick days,” and
removal of “his taking of FMLA leave as a negative factor in his performance
evaluations.” Appellant’s Br. at 8. Since none of these actions resulted in any harm to
Calio, this Court, like the District Court, lacks the ability to grant any relief to him.
First, as the record makes clear, the CCDC decided not to impose the
recommended discipline. As a result, Calio suffered no loss in pay, nor did he lose any
leave time. Therefore, Calio is not entitled to any monetary or equitable relief related to
his claims based on the recommended suspension. There was no suspension.
Second, his argument that he somehow lost a benefit because the leave days he
took in excess of his approved FMLA leave were simply counted as sick days lacks logic.
10
Though the District Court did not use the word “moot” in its opinion, the
District Court applied this reasoning in dismissing the case.
8
The CCDC’s policy requires—and the FMLA allows—-employees to use their sick days
concurrently with FMLA leave. 29 U.S.C. § 2612(d)(2); 29 C.F.R. § 825.207(a). Even if
the two days had been treated as FMLA leave, Calio would have been required to use
sick leave. As to his request that his “leave days should be restored,” Appellant’s Br. 54,
he provides no explanation as to how this would create an equitable remedy for him.
Third, nothing in the record indicates that Calio’s use of FMLA leave was a
negative factor in his performance reviews. For example, when Calio took sixteen days
of leave between January 2019 and July 2019, eleven days were authorized FMLA leave.
Despite these leave days, he received the highest possible attendance rating. When Calio
took twelve days of leave from January 2020 to July 2020, and only four were FMLA
authorized, he received an “Unsatisfactory” attendance rating.
As the District Court aptly observed, “[Calio’s] argument that these were negative
inferences is belied by the record, by the fact that he had more overall absences in the
[the 2019 period] than he did in [the 2020 period] but still received a higher score in the
[2019 period].” App. 12. Distinguishing the number of FMLA days from the overall
absences in the attendance record establishes that the use of excess regular sick days is
what led to the unsatisfactory rating.
As to his request for an injunction, Calio has identified no policy or procedure that
requires correction. He asks that this Court enjoin the CCDC from continuing its
“widespread policy and practice of strictly enforcing limits on FMLA leave.”
Appellant’s Br. 39. However, the only evidence Calio offers demonstrates that the
9
CCDC is simply disciplining employees who abuse or misuse their FMLA leave. 11
Calio’s request for declaratory relief fails for essentially the same reason: this
Court cannot direct the CCDC to stop applying the strictures of the FMLA.
Finally, Calio’s argument that the case was dismissed as a sanction misapprehends
the District Court’s reasoning. Nothing in the District Court’s opinion suggests that the
dismissal was entered as a sanction. Rather, the District Court explained that the federal
courts could provide no relief to Calio. 12
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s judgment dismissing
the case.
11
For example, discipline was recommended, but not imposed, when one
employee sought to use FMLA leave because he or she was “putting [his or her] dog
down today.” App. 161. Nothing in the FMLA remotely implies that a pet can be
considered a family member. As a result, it appears that this employee misused his or her
FMLA leave and was notified of the misuse, but, like Calio, no discipline was ever
imposed.
12
Calio raises other arguments, none of which challenge our decision that the
District Court correctly concluded the case is moot. As already mentioned, mootness
divests the court of jurisdiction. Donovan, 336 F.3d at 216. We therefore cannot reach
any of Calio’s other arguments.
10