[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
_______________________ ELEVENTH CIRCUIT
01/18/2000
Nos. 97-5879 & 98-5121 THOMAS K. KAHN
_______________________ CLERK
D. C. Docket Nos. 96-CV-8502-WJZ & 97-CV-8883-LCN
DEBRA LEE O’CONNOR,
Plaintiff-Appellant,
versus
PCA FAMILY HEALTH PLAN, INC.,
Defendant-Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(January 18, 2000)
Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*,
Senior District Judge.
KRAVITCH, Senior Circuit Judge:
*
Honorable Robert B. Propst, Senior U.S. District Judge for the Northern
District of Alabama, sitting by designation.
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.
I. BACKGROUND
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
2
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,1 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 its RIF.
1
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.
3
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
4
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.
II. ANALYSIS
A. CASE NO. 97-5879: THE FMLA SUIT
5
The FMLA provides that an “eligible employee”2 is entitled to a maximum
of twelve weeks of leave3 during which her employment status is protected.4 The
FMLA recognizes two types of claims for alleged violations of these provisions:
interference claims,5 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,6 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
2
“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.”
3
“[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. § 2612.
4
“[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).
5
“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).
6
“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.
§ 2615(a)(2).
6
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).7
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 leave.”8
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
7
See R2 (Case No. 97-5879) at 84-135 (cross-examination of HRD Director Torres by
Plaintiff’s counsel).
8
See Joint Pretial Stipulation at 2, in R1 (Case No. 97-5879) at Tab 26.
7
to the district court was simply, “Whether PCA violated the FMLA?”9 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,10 rather than
remand the case to the district court.11
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 Reg’l Hosp., Inc., 946 F. Supp. 988, 996-
9
See id. at 3.
10
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 (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).
11
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.
8
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,12 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
12
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.
9
does not permit employers to deny such a request, provided the employee follows
proper procedure.13 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 added). 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
13
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.
10
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.14 If anything, PCA’s
oversight of O’Connor’s name and failure to remove it from the final RIF roster
14
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.
11
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 Cir. 1992).
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 (1979).
Res judicata thus precludes claims which a plaintiff actually raised or could have
12
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
13
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
14
claims, on the other hand, all relate to the termination of her employment and
should have been brought together.15 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.
15
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 additional claims.
15
III. CONCLUSION
The judgment of the district court in each case is hereby AFFIRMED.
16