IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30539
Summary Calendar
_____________________
MARION BECKENDORF,
Plaintiff-Appellant,
versus
SCHWEGMANN GIANT SUPER MARKETS,
INCORPORATED,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
USDC No. 95-CV-3822-K
_________________________________________________________________
December 18, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff Marion Beckendorf appeals from a summary judgment
dismissing her claims for violation of the Family and Medical Leave
Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq., and for
retaliation prohibited by Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Because we find no error, we
affirm the district court’s award of summary judgment.
I
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Defendant Schwegmann Giant Super Markets, Inc. (“Schwegmann”)
employed Beckendorf as an Accounts Payable Audit Supervisor in
April 1989. Beckendorf supervised one employee and was herself
supervised by Robert Oertling. On July 28, 1994, Beckendorf
suffered a severe anxiety attack. The following day, she went to
see her personal physician, Dr. Scott Acosta, who diagnosed her as
suffering from severe hypertension and anxiety. Dr. Acosta
considered her malady a short-term disability and recommended that
she not return to work at that time. Schwegmann granted her a
leave of absence pursuant to its leave of absence policy and in
accordance with the FMLA.
Throughout Beckendorf’s period of disability, Dr. Acosta
continued to see and treat her. He also filled out physician’s
statements on August 10, October 5, and November 15, 1994, noting
each time that Beckendorf was totally disabled with respect to her
regular occupation. Dr. Acosta did not release her to return to
her previous job without restriction until December 6, 1994.
Beckendorf contends that she contacted Schwegmann in late
September and October 1994 and inquired about returning to work.
According to her, Schwegmann told her she would have to wait until
Mr. Lee Janies, Schwegmann’s Human Resources Director, returned
from his own medical leave of absence before her concerns could be
addressed. Following the expiration of Beckendorf’s rights under
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the FMLA, Schwegmann decided not to reinstate her to her former
position because of continuing concerns over her health and her
history of conflict with Mr. Oertling and others in the department.
Beckendorf met with Mr. Janies in December to discuss other
alternatives for her within Schwegmann’s employ. Mr. Janies
mentioned the possibility of a job in shipping and receiving which
required training and testing, paid less and involved no
supervisory responsibilities. He did not offer her the job,
however, and she did not return to work for Schwegmann.
Schwegmann’s established leave policy set out that any employee who
had not returned to work upon the expiration of the maximum leave
available under the FMLA would be fired. An exception existed for
those employees eligible under the company policy to receive six
months continued medical coverage. Such employees had up to six
months to return to work, but any employee who had not returned
after that time would be fired. Beckendorf was eligible for
continued coverage but failed to return to work within the
requisite time period. She was fired on January 29, 1994.
II
We review a district court’s grant of summary judgment de
novo, applying the same standard as would the district court.
Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559
(5th Cir. 1997); Estate of Bonner v. United States, 84 F.3d 196
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(5th Cir. 1996). Summary judgment is proper where the pleadings
and summary judgment evidence present no genuine issue of material
fact and the moving party is entitled to a judgment as a matter of
law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 106 S.Ct. 2548,
2552 (1986). A factual dispute will preclude an award of summary
judgment if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). When ruling on a motion
for summary judgment, the inferences to be reasonably drawn from
the underlying facts in the record must be viewed in the light most
favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith
Radio, 106 S.Ct. 1348, 1356 (1986). The court may not weigh the
evidence nor make credibility determinations. Anderson, 106 S.Ct.
at 2511.
III
The evidence is undisputed that Dr. Acosta did not release
Beckendorf to return to her position with Schwegmann until
December 6, 1994--well after the expiration of the 12 weeks of
leave provided by the FMLA. Prior to that time, Dr. Acosta
certified that Beckendorf was totally disabled from returning to
her former position. Relying on these undisputed facts, the FMLA
and certain implementing regulations, the district court determined
that Beckendorf’s FMLA claim must fail. The court similarly found
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Beckendorf’s summary judgment evidence insufficient to defeat
Schwegmann’s properly supported motion with respect to her
retaliation claim. The district court granted Schwegmann’s motion
for summary judgment and dismissed Beckendorf’s claims. Beckendorf
now appeals.
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IV
One of the findings that prompted Congress to enact the FMLA
was its belief that “there is inadequate job security for employees
who have serious health conditions that prevent them from working
for temporary periods.” 29 U.S.C. § 2601(a)(4). In relevant part,
the FMLA provides that:
. . . an 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:
. . . .
(D) Because of a serious health condition that
makes the employee unable to perform the
functions of the position of such employee.
29 U.S.C. § 2612 (a)(1). When any eligible employee returns from
leave taken pursuant to the FMLA, the employer must restore the
employee to her previous position or an equivalent position. Id.
§ 2614(a)(1).1
1
In granting Schwegmann’s motion, the district court relied on
final regulation 29 C.F.R. § 825.214(b) which states:
If the employee is unable to perform an essential
function of the position because of a physical or mental
condition, including the continuation of a serious health
condition, the employee has no right to restoration to
another position under the FMLA.
Schwegmann cites to this regulation in its brief as support
for its arguments that the district court properly granted its
summary judgment motion. The quoted regulatory language is from
the final regulations released by the Secretary of Labor that
became effective April 6, 1995. The Family and Medical Leave Act
of 1993, 60 Fed.Reg. 2180, 2180 (1995), as amended 60 Fed.Reg.
6658, 6658 (1995). Because Schwegmann terminated Beckendorf’s
employment on January 29, 1995, before the release of the final
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A
Beckendorf contends that Schwegmann’s failure to reinstate her
to her former position violated the FMLA. Beckendorf began her
leave of absence on July 29, 1994. Her 12-week window under the
FMLA thus closed on October 21, 1994. Dr. Acosta released
Beckendorf to return to her former position on December 6, 1994--
more than six weeks after the 12-week deadline. He did not release
her for any other position until November 1, 1994--almost two weeks
after the deadline. Under either scenario, the unrefuted evidence
indicates Beckendorf was physically unable to return to work until
after her leave expired under the FMLA.
regulations, the interim regulations govern this leave dispute.
Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 n.2 (5th Cir.
1995). Interim regulation § 825.214(b) provides:
Ordinarily an employee will be restored to the same
position the employee held prior to FMLA leave, with the
same pay and benefits, if the position remains available.
However, an employee has no right to return to the same
position.
Neither party addresses this issue on appeal. In her response
to Schwegmann’s motion for summary judgment and in her appellate
brief, Beckendorf cites to a provision of the Code of Federal
Regulations in effect in 1994. She does not, however, cite as
error the district court’s reliance on the final regulations. In
any event, application of the relevant interim regulations does not
mandate a result different from that reached by the district court.
Unless specifically designated as a final regulation, the
regulations referenced in this opinion are those that were in
effect in 1994.
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This circuit has yet to address this specific factual
situation,2 but we agree today that Schwegmann did not violate the
FMLA’s express statutory provisions when it refused to reinstate
Beckendorf. The FMLA entitles an eligible employee to 12 weeks of
leave. As a district court has aptly put it:
Common sense dictates that since the statute states that
an employer must hold open an employee’s position for
twelve weeks during his or her leave of absence, that is
exactly what the employer must do and no more.
Nunes, 1997 WL 638431, *5. The interim regulations do not evince
an interpretation contrary to that embraced by the district court.
2
Neither party directed this court’s attention to any
controlling case law regarding the consequences befalling an
employee who fails to return to work after the expiration of the
maximum leave. Although this circuit has not established any
explicit precedent in this area, other courts have spoken to the
issue. See, e.g., Brown v. TransWorld Airlines, ___ F.3d ___, 1997
WL 610821, *7 (4th Cir. 1997) (affirming summary judgment in part
because plaintiff conceded she took leave in excess of that
required to be provided under the FMLA); Nunes v. Wal-Mart Stores,
Inc., 1997 WL 638431, *5 (N.D.Cal. Sept. 24, 1997) (noting absence
of case law in area, but holding that “[a]ccording to federal law,
Wal-Mart’s obligation to hold open Nunes’ position continues for
twelve weeks; after this period, the employer has no legal
obligation to hold an employee’s position open.”); Watkins v. J&S
Oil Co., 1997 WL 592149, *3 (D.Me. Sept. 15, 1997) (noting
defendant would have no duty to provide plaintiff equivalent
employment if plaintiff was unable to return to work after twelve
weeks of leave; citing final regulations); Voskuil v. Environmental
Health Ctr.-Dallas, 1997 WL 527309, *9 (N.D.Tex. Aug. 18, 1997)
(same); Soodman v. Wildman, Harrold, Allen & Dixon, 1997 WL 106257,
*8 (N.D.Ill. Feb. 10, 1997) (same); Urbano v. Continental
Airlines, Inc., 1996 WL 767426, *4 (S.D.Tex. Nov. 1, 1996) (noting
plaintiff failed to indicate any FMLA provision requiring
reinstatement when plaintiff still could not perform her original
job after leave expired).
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Interim regulation § 825.214(b) provides that “[o]rdinarily an
employee will be restored to the same position the employee held
prior to FMLA leave.” 29 C.F.R. § 825.214(b). “FMLA leave,” as
that term is employed in the interim regulation, obviously may not
refer to more than the maximum amount of leave required to be
provided under the Act. Thus, the interim regulation contemplates
the return of the employee to his or her same position after
exhaustion of “FMLA leave,” 12 weeks being the maximum amount. The
final regulations lend support to this interpretation. Final
regulation § 825.214(b) states that “[i]f an employee is unable to
perform an essential function of the position . . ., the employee
has no right to restoration . . . under the FMLA.” 29 C.F.R.
§ 825.214(b). Beckendorf never returned from her FMLA leave and
her right to be reinstated thus never arose. Another way of
putting it is that once her leave expired, any right to restoration
also expired and Schwegmann was no longer under any express
statutory duty imposed by the FMLA to reinstate Beckendorf.3
3
Interestingly, Beckendorf alludes to another basis upon which
Schwegmann could have relied in denying reinstatement. Section
825.312 of the interim regulations says that “an employer may deny
restoration . . . if an employee fails to provide a requested
fitness-for-duty certification to return to work.” 29 C.F.R.
§ 825.312. Beckendorf concludes that “[a]ccording to the
Regulation, Schwegmann could deny restoration until Beckendorf
provided the certificate.” It is undisputed that Beckendorf’s
doctor could not have provided such a fitness-for-duty certificate
until well after the expiration of FMLA leave.
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B
Beckendorf alternatively argues that Schwegmann’s actions
misled her with respect to her rights under the FMLA.
Specifically, she contends that when she called Schwegmann in
September and October inquiring about returning to work and was
told that she would have to wait for the return of Mr. Janies, her
12-week window remained open until such time as she spoke with Mr.
Janies. Schwegmann denies that it instructed Beckendorf to wait
for Mr. Janies’ return. While these facts may be disputed, they
are immaterial to the resolution of this appeal.
The undisputed facts illustrate Beckendorf’s physical
inability to return to her former position, or any position, until
after the expiration of her statutory leave period. She cannot
argue that she would have returned to work earlier, when her right
to restoration remained ripe under the express provisions of the
FMLA, except for her reliance on Schwegmann’s actions and that her
rights under the FMLA should thus be extended so as to disallow
Schwegmann any benefit from its misleading behavior. She could not
have relied to her detriment on Schwegmann’s instructions to wait
for the return of Mr. Janies because she physically could not have
returned to work before the expiration of her FMLA leave.4 No
4
This circuit has not addressed whether an employee’s maximum
amount of leave under the FMLA may be extended due to some bad
action on the part of the employer. We need not resolve that issue
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genuine issue of material fact exists with respect to this matter
and the district court correctly dismissed this argument.
C
Beckendorf also invites us to hold that Schwegmann’s company
policy of allowing up to six months leave time extended her FMLA
rights a parallel amount of time. While the FMLA encourages
employers to provide more than the minimum 12 weeks of leave,5 the
fact that employers do so alone is not indicative of their
intention to likewise extend their employees’ statutory rights.6
There is no evidence in the record indicating that Schwegmann’s
company leave policy extended Beckendorf’s FMLA leave rights.7
This contention offers Beckendorf no relief. The record indicates
that no genuine issues of material fact exist with respect to
here because, assuming arguendo that such an extension was
available under the FMLA, Beckendorf would still not be entitled to
the extra protection under these facts.
5
Section 2653 provides that “[n]othing in this Act . . . shall
be construed to discourage employers from adopting or retaining
leave policies more generous than any policies that comply with
the . . . Act . . . .” 29 U.S.C. § 2653.
6
Section 825.700(a) provides in relevant part that “[i]f an
employer provides greater unpaid family leave rights than are
afforded by FMLA, the employer is not required to extend additional
rights afforded by FMLA.” 29 C.F.R. § 825.700(a).
7
Beckendorf attempts to argue that the facts state a claim for
breach of Schwegmann’s company policy. Such an action is not
cognizable under the FMLA, however.
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Beckendorf’s claims under the FMLA. The district court properly
granted Schwegmann’s motion for summary judgment in this respect.
V
Beckendorf also alleges that Schwegmann retaliated against her
in violation of Title VII when it refused to reinstate her and
ultimately fired her. To prove a prima facie case of retaliation,
the plaintiff must demonstrate that: (1) she engaged in an activity
protected by Title VII; (2) an adverse employment action occurred;
and (3) a causal connection existed between the participation in
the protected activity and the adverse employment action. Long v.
Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996); Dollis v.
Rubin, 77 F.3d 777, 781 (1995). Schwegmann disputes only
Beckendorf’s establishment of the causation factor.
Before Schwegmann terminated her employment, Beckendorf had
filed two charges with the EEOC alleging that Oertling and
Schwegmann had discriminated against her. Her first charge, filed
in July, 1989, was dismissed by the EEOC in May, 1990. Her second
charge, filed in September, 1991 was dismissed a year later. After
Beckendorf’s right to leave under the FMLA expired, Schwegmann
decided not to reinstate her to her former position because of
“past difficulties” with Mr. Oertling, concern for her health, and
the fact that the Auditing Department was running smoothly without
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her, according to affidavits filed as part of the summary judgment
record.
Beckendorf argues that the “past difficulties” to which
Schwegmann alludes include her claims filed with the EEOC.
Schwegmann urges this court to hold that the lapse of time between
the protected activity and the adverse employment action mandates
summary judgment against Beckendorf. See Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995) (noting timing is
significant but not determinative); Shirley v. Chrysler First,
Inc., 970 F.2d 39, 43-44 (5th Cir. 1992) (same). In this case,
over three years had passed since Beckendorf’s last EEOC filing.
While the past EEOC filing alone may not be sufficient to overcome
a summary judgment motion, the past filing, along with inferences
drawn from Schwegmann’s own statements are sufficient to create a
genuine issue of material fact as to the final element of
Beckendorf’s prima facie case.
However, Beckendorf has not demonstrated a fact issue
concerning whether or not Schwegmann’s proffered legitimate non-
discriminatory reasons were a pretext for discrimination. See St.
Mary’s Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2752 (1993). When
confronted with a properly supported motion for summary judgment,
the plaintiff may not simply rely on her pleadings to escape
judgment as a matter of law. Fed.R.Civ.P. 56(e); S.E.C. v. Recile,
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10 F.3d 1093, 1097 (5th Cir. 1993). Schwegmann presented unrefuted
evidence that Beckendorf was terminated in accordance with
Schwegmann’s standard leave of absence procedures. That is, an
employee who has not returned to work upon expiration of the
maximum leave available under FMLA is terminated unless she is
eligible under company policy (as Beckendof was) for medical
coverage for up to six months. Any employee who does not return to
work after six months is terminated. There is no evidence that the
company varied from this policy in Beckendorf’s case or in any
other case. The district court properly granted Schwegmann’s
motion for summary judgment with respect to Beckendorf’s
retaliation claim.
VI
The district court committed no error when it granted
Schwegmann’s motion for summary judgment and we affirm for
essentially the same reasons as set forth by that court. The
evidence is undisputed that Beckendorf was physically unable to
return to work before the expiration of the maximum amount of leave
provided under the FMLA. After the exhaustion of her 12 weeks of
leave, Beckendorf’s right to reinstatement under the Act collapsed.
Schwegmann did not violate the FMLA by refusing to restore
Beckendorf to her former position. The evidence is also
insufficient to create a genuine issue of material fact as to
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Beckendorf’s claims that she reasonably relied upon Schwegmann’s
actions to her detriment and that Schwegmann’s company leave policy
extended her statutory rights. Finally, the record is completely
devoid of any evidence that Schwegmann terminated Beckendorf’s
employment in retaliation for her engagement in an activity
protected under Title VII.
The judgment of the district court is hereby
A F F I R M E D.
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