|||U.S. Court of Appeals, Eleventh Circuit
|||Nos. 97-5879, 98-5121.
|||200 F.3d 1349, 2000.C11.0042042 <http://www.versuslaw.com>,
81 Fair Empl.Prac.Cas. (BNA) 1112, 77 Empl. Prac. Dec. P 46,218
|||January 18, 2000
|||DEBRA LEE O'CONNOR, PLAINTIFF-APPELLANT,
PCA FAMILY HEALTH PLAN, INC., DEFENDANT-APPELLEE.
|||Appeals from the United States District Court for the Southern District
of Florida. (No. 96-8502-Cv-WJZ), William J. Zloch, Judge.
|||Before Cox, Circuit Judge, Kravitch, Senior Circuit Judge, and Propst
*fn1 , Senior District Judge.
|||KRAVITCH, Senior Circuit Judge
|||The primary issue these consolidated appeals present, and one of first
impression in this circuit, is the scope of employment protection afforded
by the Family Medical and Leave Act of 1993 (the "FMLA"), 29 U.S.C. §§
2601-54; specifically, we address the circumstances under which an employer
may terminate an employee on FMLA leave. Plaintiff-Appellant Debra O'Connor
brought suit against PCA Family Health Plan, Inc. ("PCA"), her former employer,
claiming PCA violated the FMLA by terminating her employment and attendant
benefits while she was exercising her statutory right to FMLA leave. The
district court found no such violation. We agree and therefore AFFIRM.
|||In March 1995, O'Connor entered the employ of PCA as an Account Executive
in PCA's Boca Raton, Florida, office. O'Connor learned she was pregnant
in August of that year and notified PCA of her intention to take maternity
leave for the birth and post-natal care of her child. Under the terms of
PCA's employee benefits policy, O'Connor had several leave options, including
FMLA leave, sick and vacation leave, short-term disability leave, and leave
without pay. She discussed these options with her supervisors in PCA's Boca
Raton office and requested a period of FMLA leave commencing April 22, 1996,
and ending August 1, 1996. PCA's regional Human Resources Department (the
"HRD") for the state of Florida, housed in PCA's Miami office, instead approved
a leave package commencing on April 18, 1996, the day after O'Connor's last
scheduled day of work, *fn2
and ending on July 10, 1996. O'Connor's child was born on May 2.
|||In June 1996, economic losses experienced during the previous two years
compelled PCA to undergo a reduction in force ("RIF"). PCA implemented the
RIF in multiple phases, the first occurring on July 1, 1996, with the termination
of 190 employees. PCA's HRD selected these employees from lists submitted
by the supervisors of various departments throughout PCA's Florida offices.
O'Connor's name was one of those submitted. While compiling the final roster
of employees to be terminated in the first phase of the RIF, the HRD reviewed
the submitted lists for employees who, as of the date of the first phase
of the RIF, would be on leave. The HRD flagged two employees and removed
them from the final roster, opting to reassess their employment statuses
after they returned from leave. The HRD, however, failed to flag O'Connor's
name; consequently, PCA terminated O'Connor as part of the first phase of
|||On or about July 11, 1996, O'Connor learned of her termination and contacted
her former supervisor in the Boca Raton office to inquire as to the reason.
The supervisor notified the HRD that an employee on leave had been terminated.
Odalys Torres, who at the time was PCA's Director of Human Resources for
Florida, investigated and concluded that the HRD in fact should have removed
O'Connor's name from the RIF roster, as it did with the other two employees
then on leave. On or about August 15, PCA orally offered to reinstate O'Connor
to her former position, but she declined.
|||On July 23, 1996, O'Connor filed a complaint with the United States District
Court for the Southern District of Florida, alleging PCA violated the FMLA
by terminating her while she was on FMLA leave (Case No. 97-5879, the "FMLA
suit"). On or about October 1, 1996, she also filed charges with the Equal
Employment Opportunity Commission (the "EEOC") and the Florida Commission
on Human Relations, alleging discrimination based on her gender, age, and
pregnancy status in violation of Title VII of the Civil Rights Act of 1964
("Title VII"), as amended, 42 U.S.C. § 2000e; the Age Discrimination
in Employment Act of 1967 (the "ADEA"), as amended, 29 U.S.C. §§
621-634; and the Florida Civil Rights Act, Fla. Stat. ch. 760.01-.854. The
EEOC took no action on O'Connor's complaint, and on August 18, 1997, O'Connor
requested and received her Notice of Right to Sue.
|||O'Connor's FMLA suit was adjudicated in a bench trial before the district
court on August 25, 1997. The district court announced its judgment on September
24, 1997, holding that PCA had not violated the FMLA by terminating O'Connor
while she was on FMLA leave.
|||On November 17, 1997, O'Connor exercised her "right to sue" by filing
a second suit against PCA, alleging the various charges of discrimination
included in her EEOC complaint (Case No. 98-5121, the "employment discrimination
suit"). PCA immediately moved for summary judgment on the ground that the
prior adjudication of O'Connor's FMLA suit has res judicata effect on all
claims included in her second suit. The district court agreed and granted
PCA's motion for summary judgment on June 30, 1998.
|||A. CASE NO. 97-5879: THE FMLA SUIT
|||The FMLA provides that an "eligible employee" *fn3
is entitled to a maximum of twelve weeks of leave *fn4
during which her employment status is protected. *fn5
The FMLA recognizes two types of claims for alleged violations of these
provisions: interference claims, *fn6
in which employers burden or outright deny substantive statutory rights
to which their employees are entitled, see 29 U.S.C. § 2615(a)(1) (1999),
and retaliation claims, *fn7
in which employers discharge employees for exercising their FMLA right to
leave, see id. § 2615(a)(2). O'Connor's complaint did not specifically
characterize her FMLA claim as either, but rather asserted some nonspecific
violation of the FMLA. In its resolution of the claim, however, the district
court construed O'Connor's complaint to allege only a retaliatory discharge.
O'Connor appeals this as error, contending she also properly presented an
interference claim to the district court.
|||We must first resolve the character of the FMLA claim O'Connor submitted
to the district court, a question of law we review de novo. See Massaro
v. Mainlands Section 1 & 2 Civic Ass'n, 3 F.3d 1472, 1475 (11th Cir.1993).
After reviewing the record, we are satisfied O'Connor presented sufficient
evidence at trial in support of both cognizable causes of action. The testimony
and documentary evidence elicited at trial reveal O'Connor's attempt to
establish that PCA denied her statutory right to reinstatement upon return
from leave, as provided by 29 U.S.C. § 2614(a)(1). *fn8
|||In opposition to our conclusion, PCA directs our attention to the Joint
Pretrial Stipulation, in which the parties framed O'Connor's allegation
of improper termination as being "in response to her having requested pregnancy
Although this phrasing may suggest O'Connor believed her termination was
retaliatory, we note that this statement was included in the Stipulation's
Statement of the Case, rather than as an Issue of Law for the Court; the
actual issue presented to the district court was simply, "Whether PCA violated
the FMLA?" *fn10
We are not satisfied that the language to which PCA points precluded O'Connor
from also arguing an interference claim at trial. We therefore conclude
the district court erred in not considering both types of FMLA claims in
deciding whether PCA violated the statute. Moreover, because we find the
factual record to be well-developed, we choose to resolve the interference
claim ourselves, *fn11
rather than remand the case to the district court. *fn12
|||The standard for establishing an interference claim under the FMLA is
an issue of first impression in this circuit, but other courts have addressed
it. See Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-14 (7th Cir.1997);
see also Hubbard v. Blue Cross Blue Shield Assoc., 1 F.Supp.2d 867, 874-75
(N.D.Ill.1998) (applying Diaz ); Kaylor v. Fannin Regional Hosp., Inc.,
946 F.Supp. 988, 996-97 (N.D.Ga.1996); cf. Hodgens v. General Dynamics Corp.,
144 F.3d 151, 159-60 (1st Cir.1998) (recognizing interference claims and
citing Diaz ). In Diaz, the Seventh Circuit held that if an employee proves
by a preponderance of the evidence she is entitled to the benefit she claims
and that her employer interfered with or denied that benefit, the employer
violated the FMLA. See 131 F.3d at 713. O'Connor argues 29 U.S.C. §
2614(a)(1) provides that an employee returning from leave is entitled to
reinstatement, yet PCA denied her that benefit by terminating her before
her leave expired, *fn13
thus proving her claim. Essentially, O'Connor, relying on Diaz, asserts
that all FMLA rights, including reinstatement, are absolute.
|||Although we find no fault with the Seventh Circuit's interpretation of
the FMLA, it is not completely apposite to this case. The Diaz plaintiff
requested but was denied his twelve weeks of leave for an alleged medical
condition as authorized by 29 U.S.C. § 2612(a)(1)(D), and the Seventh
Circuit held the FMLA does not permit employers to deny such a request,
provided the employee follows proper procedure. *fn14
See 131 F.3d at 713. Unlike the right to commence leave, an employer can
deny the right to reinstatement in certain circumstances, see Ilhardt v.
Sara Lee Corp., 118 F.3d 1151, 1157 (7th Cir.1997) (holding an employer
may terminate an employee on FMLA leave as part of a RIF), because United
States Department of Labor regulation qualifies the right.
|||An employee has no greater right to reinstatement or to other benefits
and conditions of employment than if the employee had been continuously
employed during the FMLA leave period. An employer must be able to show
that an employee would not otherwise have been employed at the time reinstatement
is requested in order to deny restoration to employment. For example:
|||(1) If an employee is laid off during the course of taking FMLA leave
... the employer's responsibility to continue FMLA leave, maintain group
health plan benefits and restore the employee cease at the time the employee
is laid off.... An employer would have the burden of proving that an employee
would have been laid off during the FMLA leave period and, therefore, would
not be entitled to restoration. 29 C.F.R. § 825.216(a) (1999) (emphasis
|||We hold that when an "eligible" employee who was on FMLA leave alleges
her employer denied her FMLA right to reinstatement, the employer has an
opportunity to demonstrate it would have discharged the employee even had
she not been on FMLA leave. The district court found that PCA slated O'Connor
for termination as part of the first phase of its RIF, the legitimacy of
which O'Connor has never challenged. We have no reason to dispute that finding,
see Massaro, 3 F.3d at 1475 (reviewing findings of fact for clear error),
and therefore conclude PCA was justified in terminating O'Connor even while
she was on FMLA leave.
|||O'Connor emphasizes PCA's election to remove two other employees on FMLA
leave from the final RIF roster while failing to do the same for her as
evidence of PCA's awareness of a duty to refrain from terminating all employees
on FMLA leave. We find this argument to be without merit. PCA's voluntary
adoption of an employment policy designed to avoid legal entanglements (ironically
unsuccessful) does not expand the scope of legally enforceable employment
protection beyond that which the statute affords. *fn15
If anything, PCA's oversight of O'Connor's name and failure to remove it
from the final RIF roster only indicate that O'Connor's FMLA status played
no part in PCA's decision to discharge her.
|||After fully considering O'Connor's interference claim, we agree with the
district court's ultimate conclusion that the termination of O'Connor during
her period of FMLA leave, because it was part of a legitimate RIF, did not
violate the statute.
|||B. CASE NO. 98-5121: THE EMPLOYMENT DISCRIMINATION SUIT
|||1. Res Judicata
|||In its grant of summary judgment, the district court held O'Connor's FMLA
suit had res judicata effect on the discrimination claims brought in her
second suit, thus barring those claims. We review this conclusion of law
de novo. See Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th
|||The Supreme Court has explained that following "a full and fair opportunity
to litigate[, res judicata ] protects [a party's] adversaries from the expense
and vexation attending multiple lawsuits, conserves judicial resources,
and fosters reliance on judicial action by minimizing the possibility of
inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-54,
99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). Res judicata thus precludes
claims which a plaintiff actually raised or could have raised in a prior
suit when (1) there is a final judgment in a prior suit on the merits; (2)
the decision in the prior suit is rendered by a court of competent jurisdiction;
(3) the parties in both suits are identical; and (4) both suits involve
the same cause of action. See Citibank, N.A. v. Data Lease Fin. Corp., 904
F.2d 1498, 1501 (11th Cir.1990). The first three elements are obviously
satisfied in this case and do not warrant discussion. As for the fourth
element, in Citibank, this court explained that " 'if a case arises out
of the same nucleus of operative fact ... as a former action, [then] the
two cases are really the same "claim" or "cause of action" for purposes
of res judicata.' " Id. at 1503 (quoting Ruple v. City of Vermillion, 714
F.2d 860, 861 (8th Cir.1983)). Because O'Connor's FMLA claim and her other
discrimination claims all issue from a single event, namely, the termination
of her employment, we conclude res judicata bars O'Connor's second suit;
the district court's grant of summary judgment was proper.
|||In an attempt to persuade us otherwise, O'Connor cites Pleming v. Universal-Rundle
Corp., 142 F.3d 1354, 1357-59 (11th Cir.1998), in which this court held
res judicata did not bar a plaintiff's second discrimination claim in a
separate suit, even though it was against the same employer and was known
to the plaintiff prior to the adjudication of her earlier suit. The cornerstone
of Pleming 's holding, however, was that the circumstances giving rise to
the allegations of the second suit occurred after she filed her first suit;
in other words, the claims brought in each suit were premised on entirely
different instances of alleged discrimination. See id. O'Connor's reliance
on Pleming is therefore misplaced. We iterate that in the instant case,
the nucleus of facts from which O'Connor's employment discrimination claims
stem is identical to that underlying her FMLA claim.
|||O'Connor contends the procurement of her EEOC Notice of Right to Sue ("Notice"),
which she received after she filed her FMLA suit, rather than her termination,
gave rise to her discrimination claims. She argues that because she was
unable to bring her discrimination claims prior to evaluation by the EEOC
during a statutory 180-day waiting period, see 42 U.S.C. § 2000e-5(f)
(1994), her second suit involves "new rights acquired," against which a
previous judgment has no preclusive effect. See Pleming, 142 F.3d at 1357
(citing Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.1992) (quoting
Los Angeles Branch, NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731,
739 (9th Cir.1984))). Again, O'Connor's reading of Pleming ignores the context
of the decision. Because the claims brought in each of the plaintiff's suits
were premised on entirely different episodes of alleged discrimination,
the Pleming court simply held that the plaintiff was not required to join
unrelated claims in a single suit and that the adjudication of one of those
claims did not preclude the other.
|||O'Connor's claims, on the other hand, all relate to the termination of
her employment and should have been brought together. *fn16
Contrary to O'Connor's implied suggestion, Pleming did nothing to alter
our usual approach to res judicata, which focuses on the identity of the
factual circumstances from which various claims or theories of recovery
may arise. See Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1240 (11th Cir.1999)
(also interpreting Pleming to not alter our usual approach to res judicata
). Accordingly, we agree with the district court that res judicata bars
the claims brought in O'Connor's employment discrimination suit.
|||2. Attorney's Fees
|||Following the district court's grant of summary judgment in the employment
discrimination suit, PCA moved for prevailing defendant attorney's fees
pursuant to 42 U.S.C. § 1988, but the district court has yet to rule
on the motion. PCA, therefore, requests this court to rule on the appropriateness
of an attorney's fees award, but remand for a determination of the amount.
Because the motion is still pending before the district court, however,
we do not address the issue.
|||The judgment of the district court in each case is hereby AFFIRMED.
|||*fn1 Honorable Robert B. Propst, Senior U.S. District Judge for the Northern
District of Alabama, sitting by designation.
|||*fn2 O'Connor's last scheduled day of
work was April 17, 1996. She planned to take personal leave for the work
days between that date and April 22 to delay the commencement of her FMLA
leave. The HRD, however, designated April 18 as her first day of FMLA leave.
|||*fn3 "The term 'eligible employee' means
an employee who has been employed-(i) for at least 12 months by the employer
with respect to whom leave is requested under section 2612 of this title;
and (ii) for at least 1,250 hours of service with such employer during the
previous 12-month period." 29 U.S.C. § 2611(2)(A) (1999). The parties
do not dispute O'Connor was an "eligible employee."
|||*fn4 "[A]n eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-month period
for one or more of the following: (A) Because of the birth of a son or daughter
of the employee and in order to care for such son or daughter...." Id. §
|||*fn5 "[A]ny eligible employee who takes
leave under section 2612 ... shall be entitled, on return from such leave-(A)
to be restored by the employer to the position of employment held by the
employee when the leave commenced; or (B) to be restored to an equivalent
position...." Id. § 2614(a)(1).
|||*fn6 "It shall be unlawful for any employer
to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this subchapter." Id. § 2615(a)(1).
|||*fn7 "It shall be unlawful for any employer
to discharge or in any other manner discriminate against any individual
for opposing any practice made unlawful by this subchapter." Id. §
|||*fn8 See R2 (Case No. 97-5879) at 84-135
(cross-examination of HRD Director Torres by Plaintiff's counsel).
|||*fn9 See Joint Pretial Stipulation at
2, in R1 (Case No. 97-5879) at Tab 26.
|||*fn10 See id. at 3.
|||*fn11 Although we find O'Connor presented
both claims to the district court, she does not appeal the district court's
analysis of the retaliation claim, to which it applied the burden-shifting
approach outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973), and common to employment discrimination
claims. She has therefore abandoned the issue. See Greenbriar, Ltd. v. City
of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989).
|||*fn12 This court may decide this issue
because we hold infra that even under this alternate theory of recovery,
PCA did not violate the FMLA, and thus affirm the district court's final
judgment. See Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir.1995)
(holding this court may affirm a district court on any basis). Furthermore,
because this court may consider issues not even raised before the district
court when they are pure legal questions or the proper outcome is beyond
doubt, cf. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994) (stating
the five exceptions to the general rule against considering such issues),
disposing of such an issue actually presented to but not addressed by the
district court is certainly within our discretion.
|||*fn13 There is some confusion as to
whether O'Connor was still on FMLA leave on the date of her termination.
Under the leave package approved by the HRD, O'Connor's FMLA leave expired
on July 10,1996, twelve weeks after her last day at work, April 17, 1996.
The letter announcing O'Connor's termination was initially dated July 1,
1996, but once HRD Director Torres learned O'Connor was on leave on July
1, she allegedly post-dated the effective date of O'Connor's termination
to reflect her last date of protected leave. PCA argues that because O'Connor
received the entire twelve weeks of leave to which she was entitled, she
has no actual FMLA claim. See Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1275 (11th Cir.1999) (per curiam ). The district court, without explanation,
found O'Connor was on FMLA leave when she was terminated. The record testimony
surrounding this issue is ambiguous at best, so we are unable to conclude
the district court clearly erred in finding this fact. Furthermore, the
issue is mooted by our eventual holding that, even assuming O'Connor was
on FMLA leave when terminated, the termination did not violate the FMLA.
|||*fn14 We note that the Seventh Circuit
ultimately held that the plaintiff did not qualify for relief because he
had not complied with his employer's request for a second medical opinion,
as is an employer's right under the FMLA, 29 U.S.C. § 2613(c). See
Diaz, 131 F.3d at 713-14.
|||*fn15 At trial, O'Connor brought to
the district court's attention 29 C.F.R. § 825.700(a) (1999), which
explains "[a]n employer must observe any employment benefit program or plan
that provides greater family or medical rights to employees than the rights
established by the FMLA." O'Connor argued PCA's removal of employees on
FMLA from the RIF roster was tantamount to such a "program or plan," requiring
PCA to treat all similarly situated employees equally. O'Connor did not
reassert this argument on appeal, however, so we deem it waived. See Greenbriar,
881 F.2d at 1573 n. 6.
|||*fn16 O'Connor could have either delayed
filing or continued her FMLA suit until she received her Notice. Furthermore,
O'Connor did not request her Notice until August 18, 1997, only a week before
she adjudicated her FMLA suit. She could have requested the Notice as early
as April 1, 1997, the approximate date on which the EEOC's 180-day waiting
period expired and nearly five months prior to the first trial; O'Connor
would have had ample time to amend her initial complaint to include the
O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349
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