Revised December 28, 1998
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50445
BERNARDO G. BOCALBOS,
Plaintiff-Appellee/Cross-Appellant,
versus
NATIONAL WESTERN LIFE INSURANCE COMPANY,
Defendant-Appellant/Cross-Appellee.
Appeals from the United States District Court
for the Western District of Texas
December 23, 1998
Before POLITZ, Chief Judge, JONES and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
National Western Life Insurance Company seeks reversal of judgment on
a jury verdict based on claims that it violated the Family Medical Leave Act of
1993 (“FMLA”),1 by interfering with Bernardo Bocalbos’ leave and subsequently
terminating his employment in retaliation for taking FMLA leave.
1
29 U.S.C. §§ 2601-2619.
Background
Bocalbos was born in the Philippines and became a naturalized citizen in
1987. In January 1989, he began working in National Western’s actuarial
department as an assistant actuary. In 1992 the Chief Actuary implemented a
Student Actuarial Program which required all assistant actuaries to earn 40
Society of Actuaries examination credits by May 1994 in order to remain
employed in the actuarial department.2 The Program provided certain incentives
for assistant actuaries to take the examinations, including permitting study time
at work, paying for study materials and the costs of the first two examinations,
and increasing the employee’s salary for examinations passed. The
memorandum describing the Program stated that “[w]hile the taking of the exams
is an individual decision on the part of the student, it should be understood that
a decision to not continue with the exams, without Chief Actuary approval, may
reduce the likelihood of continued employment within the Actuarial Department.”
From 1992 to early 1995, there were three assistant actuaries in the
department – Bocalbos, Carol Lo, and David Olson. By the end of the May 1994
examinations none of the employees had achieved the requisite 40 credits; Lo
2
The actuarial exams are given twice a year in May and November. A person sitting
for an examination can earn between 10 to 40 credits depending on the examination
that is taken.
2
had earned 35 credits, Olson had earned 15, and Bocalbos had earned none.
The Chief Actuary extended the time, permitting all three employees to sit for the
November 1994 exams. After the November 1994 exams Lo picked up an
additional 40 credits, bringing her total exam credits to 75, Olson earned an
additional 15 credits bringing his total to 30, but Bocalbos did not pass any exam,
leaving him with zero credits.
In April 1992, Bocalbos adopted his brother’s two children who lived in the
Philippines. On April 13, 1993, Bocalbos petitioned the Immigration and
Naturalization Service for Relative Immigrant Visas. The visas were granted on
November 2, 1994. In February 1995, Bocalbos requested FMLA leave, from
April 10, 1995 to June 16, 1995, to bring the children from the Philippines to
Austin, Texas. Defendant approved the leave on March 7, 1995. On March 28,
1995 Bocalbos read and initialed a memorandum from the Chief Actuary that
stated that unless he passed at least 40 credits in the Actuarial Examination
sittings in May of 1995, his employment would be terminated.
Before his leave began Bocalbos signed up to take several Society of
Actuaries examinations in May 1995. Upon his return to work on July 3, 1995,
3
however, he reported that he did not take the May exams.3 Shortly thereafter,
Bocalbos was terminated for failure to take and pass the actuarial examinations.
He filed this complaint in state court claiming that he was fired in violation of the
FMLA and Title VII. After removal to federal court, both parties filed motions for
summary judgment. The district court dismissed the Title VII claim, but denied
the motion as to the FMLA claims. A jury found that National Western had
interfered with Bocalbos’ FMLA rights and terminated him in retaliation for having
requested and taken leave. National Western unsuccessfully moved for
judgment as a matter of law. The district court ultimately awarded Bocalbos
damages of $26,106.82 with post-judgment interest. The court ordered that
Bocalbos be reinstated, but denied his request for liquidated damages. Both
parties timely appealed.
Analysis
We review de novo the trial court’s ruling on a motion for judgment as a
matter of law under Fed.R.Civ.P. 50(a).4 Such a judgment should be granted not
3
Bocalbos faxed a memorandum to Carol Jackson, National Western’s Vice-
President of Human Resources, requesting an additional two weeks, which was
granted. As a result, Bocalbos’ leave lasted 12 weeks, beginning on April 10, 1995 and
ending on June 30, 1995.
4
Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316 (5th Cir. 1994); Travis v. Bd.
Of Regents of Univ. of Tex., 122 F.3d 259 (5th Cir. 1997), cert. denied, 118 S.Ct. 1166
(1998).
4
only when the non-movant presents no evidence, but also when there is not a
sufficient “conflict in substantial evidence to create a jury question.”5
The Family Medical Leave Act of 1993 was enacted to permit employees
to take reasonable leave for medical reasons, for birth or adoption of a child, and
for the care of a child, spouse, or parent who has a serious health condition.6
The Act seeks to meet the needs of families in a manner that accommodates the
legitimate interests of employers.7 The Act applies to private-sector employers
of 50 or more employees8 and an employee is eligible for FMLA leave after
working for a covered employer for at least 1250 hours during the preceding 12
months.9 It is undisputed that National Western is a covered employer and that
Bocalbos is an eligible employee.
The Act has two distinct provisions. First, it provides certain entitlements.10
5
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 (5th Cir. 1997) (citation
omitted), cert. denied, 118 S.Ct. 1050 (1998).
6
29 U.S.C. § 2601(b)(1) & (2).
7
29 U.S.C. § 2601(b)(3).
8
29 U.S.C. § 2611(4).
9
29 U.S.C. § 2611(2).
10
See Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998); Diaz
v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997); Morgan v. Hilti, Inc.,
108 F.3d 1319 (10th Cir. 1997).
5
An eligible employee of a covered employer has the right to take unpaid leave
for a period of up to 12 workweeks in any 12-month period when the employee
has “a serious health condition that makes [him or her] unable to perform the
functions of [his or her] position”;11 to care for a close family member with a
serious health condition;12 because of the birth of a son or daughter;13 or
placement of a child with the employee for adoption or foster care.14 Following
a qualified leave period, the employee is entitled to reinstatement to the former
position or an equivalent one with the same benefits and terms.15 Second, the
Act protects employees from interference with their leave as well as against
discrimination or retaliation for exercising their rights.16 It is “unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any rights provided under” the Act.17 Further, an employer is prohibited
from discriminating or retaliating against an employee for exercising his rights
11
29 U.S.C. § 2612(a)(1)(D).
12
29 U.S.C. § 2612(a)(1)(C).
13
29 U.S.C. § 2612(a)(1)(A).
14
29 U.S.C. § 2612(a)(1)(B); see also § 2611(12).
15
29 U.S.C. § 2614(a).
16
Hypes v. First Commerce Corp., 134 F.3d 721 (5th Cir. 1998); Hodgens; Diaz.
17
29 U.S.C. § 2615(a)(1).
6
under the Act.18
Bocalbos asserts violations of the anti-discrimination provisions of the Act
because National Western allegedly improperly interfered with his right to take
leave by requiring that he take the exam during his leave and then subsequently
discharging him in retaliation for having taken the FMLA leave. To establish a
prima facie case for discrimination or retaliation under the FMLA, the plaintiff
must demonstrate that: (1) he is protected under the FMLA; (2) he suffered an
adverse employment decision; and either (3a) that the plaintiff was treated less
favorably than an employee who had not requested leave under the FMLA; or
(3b) the adverse decision was made because of the plaintiff’s request for leave.19
If the plaintiff succeeds in making a prima facie case, the burden shifts to the
employer to articulate a legitimate nondiscriminatory or nonretaliatory reason for
the termination. Once the employer has done so, the plaintiff must show by a
preponderance of the evidence that the employer’s reason is a pretext for
discrimination or retaliation.20
18
29 U.S.C. § 2615(a)(2).
19
Oswalt v. Sara Lee Corp., 889 F.Supp. 253 (N.D.Miss. 1995), aff’d, 74 F.3d 91
th
(5 Cir. 1996); Hodgens, 144 F.3d at 160-161; Diaz, 131 F.3d at 712; Hilti, 108 F.3d
at 1323.
20
Oswalt, 889 F.Supp. at 259; Hypes.
7
The district court, in its summary judgment order, found that although the
adoption proceedings began in the Philippines in 1991, the INS procedures for
bringing the children to the United States were not completed until the INS
granted the children their visas in November 1994. The trial court observed that
the Act suggests “that the adoption provision was intended in part, to address the
needs for the parent’s presence when the child is first introduced into his or her
new home. The text of the FMLA notes the importance to a child’s development
that parents be able to participate in early child rearing.”21 The district court
concluded that under the unique facts of this case, Bocalbos was protected under
the FMLA. We do not agree.
The statute permits employees to take unpaid leave “[b]ecause of the
placement of a son or daughter with the employee for adoption or foster care.”22
Further, when taking such leave because of the placement of a child, the
employee’s entitlement to FMLA leave “shall expire at the end of the 12-month
period beginning on the date of such . . . placement.”23 We conclude that the Act
is inapplicable in the situation at bar. The adoption of the two children was made
21
District Court “Order and Partial Judgment,” December 10, 1996 at 6.
22
29 U.S.C. § 2612(a)(1)(B).
23
29 U.S.C. § 2612(a)(2); 29 C.F.R. § 825.201.
8
final in April 1992, more than one year before the effective date of the Act on
August 5, 1993. In April 1992, Bocalbos had become a parent of the children,
with complete rights, obligations and responsibilities, yet he sought FMLA leave
almost three years after the adoption was finalized.24 While we recognize the
importance of child-parent bonding and of a parent’s presence in early child
rearing, we cannot read the Act to extend “placement for adoption” to encompass
Bocalbos’ situation. The children, ages 17 and 12, were not being placed for
adoption in April 1995, but were being brought to the United States to live in
Austin, Texas. The Act contemplates placement for adoption to include the
circumstances in which a child is placed in a home before the adoption is
finalized.25 There is no indication, however, that Congress intended placement
to include a situation in which the children were actually adopted, left in another
24
The Department of Labor regulations provide:
Employers covered by FMLA are required to grant FMLAleave
pursuant to paragraph (a)(2) of this section before the actual placement or
adoption of a child if an absence from work is required for the placement
for adoption or foster care to proceed. For example, the employee may be
required to attend counselling sessions, appear in court, consult with his
or her attorney or the doctor(s) representing the birth parent, or submit to
a physical examination. The source of an adopted child (e.g., whether
from a licensed placement agency or otherwise) is not a factor in
determining eligibility for leave for this purpose.
29 C.F.R. § 825.112(d).
25
See 29 C.F.R. § 825.112(d) (1997).
9
country for an extended period of time, and then retrieved at the convenience of
the adoptive parent. Congress placed a 12-month limitation on the eligibility so
that the period of time for employees to request leave would not be indefinite or
too far removed from the actual adoption.26
Bocalbos also contends that the defendant granted the leave and therefore
should not be permitted to now insist that the FMLA was not applicable.27 His
argument is not persuasive in light of the fact that National Western was not
aware at the time of his request that he had adopted the children in 1992.
Even if the Act did apply to the facts of this case, it is clear that National
Western did not interfere with Bocalbos’ leave and tendered a nonretaliatory
reason for his termination. National Western did not “interfere with, restrain, or
deny the exercise of or the attempt to exercise” Bocalbos’ FMLA rights. Rather,
National Western made it clear that the actuary students would be required to
take the exams in May and November of each year until they achieved the
requisite score. Bocalbos was fully aware of the test dates when he placed his
request for leave from April through June. When questioned, he acknowledged
26
29 U.S.C. § 2612(a)(2).
27
It is the employee’s responsibility to determine whether leave qualifies under the
FMLA. 29 C.F.R. § 825.208(a); see also Manuel v. Westlake Polymers Corp., 66
F.3d 758 (5th Cir. 1995).
10
that he could have chosen the time period after the exam to take the leave.
As for Bocalbos’ termination, the attainment of the Society of Actuaries
examination credits had been a job requirement since June 1992, and at the time
of his termination in June 1995, Bocalbos had attained no credits whatsoever.
The failure to satisfy a legitimate job requirement is a nondiscriminatory reason
and sufficient grounds for his termination.28 We conclude and hold that no
reasonable juror could conclude that National Western fired Bocalbos because
he took leave under the FMLA.29
The judgment against National Western is REVERSED and judgment is
RENDERED herein in favor of National Western, rejecting the claims of
Bernardo Bocalbos.
28
Faruki v. Parsons S.I.P, Inc., 123 F.3d 315 (5th Cir. 1997); Nichols v. Loral
Vought Sys. Corp., 81 F.3d 38 (5th Cir. 1996); Hilti.
29
See Hypes.
11