[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 07-11196 ELEVENTH CIRCUIT
SEPT 30, 2008
_____________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00971 CV-ORL-22-KRS
ANTHONY G. MARTIN,
Plaintiff-Appellant,
versus
BREVARD COUNTY PUBLIC SCHOOLS,
an entity of the State of Florida,
Defendant-Appellee.
_________________________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________________________
(September 30, 2008)
Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN,* Circuit
Judges.
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:
Anthony G. Martin (“Martin”) appeals the district court’s grant of summary
judgment to Brevard County Public Schools (the “School District”) on his claims
for interference and retaliation under the Family and Medical Leave Act of 1993,
29 U.S.C. §§ 2601-2654 (“FMLA”). We vacate the judgment and remand the case
for further proceedings.
BACKGROUND
In January 2000, the School District hired Martin as a payroll supervisor.
Martin worked for the School District on a contractual basis subject to annual
renewal by the school board. By its terms, Martin’s last contract with the School
District expired on 30 June 2004.
During his time with the School District, Martin lived with his wife and
daughters. In late 2003, Martin’s daughter, Brittany, a student and member of the
Army Reserve, gave birth to Hannah: Martin’s granddaughter. Martin provided
Brittany and Hannah substantial financial support, furnishing them with a home,
utilities, transportation, food, money for expenses, and health insurance.
2
Hannah’s biological father did not live in Martin’s home; Brittany was a single
mother.
Michael Degutis, Assistant Superintendent of Finance for the School
District, was Martin’s immediate supervisor and responsible for evaluating
Martin’s performance. On Martin’s 2001 and 2002 performance reviews, he
received a “professional level” rating—the highest rating possible—in the
“Overall Evaluation” category. The following year, on his 2003 performance
review, Martin received a “professional level” rating in all ten performance
categories, including the “Overall Evaluation” category. According to the School
District, however, Martin’s later performance did not remain at this exemplary
level.
On 19 April 2004, Degutis gave Martin an interim performance review. In
that evaluation, Martin received a “professional level” rating in three categories, a
“needs improvement” rating in five categories, and an “unsatisfactory level” rating
in two categories. Degutis also presented Martin with an improvement plan,
which afforded Martin through 1 June 2004 “to demonstrate significant progress
as outlined . . . in the improvement plan.”
Around the same time, the Army Reserve informed Brittany that her unit
was called to active duty and would soon be deployed overseas. On 29 April
3
2004, Martin submitted to the School District a written request for twelve weeks
of FMLA leave to care for Hannah beginning on 7 May 2004. Martin presented
this explanation: “Due to unforeseeable events, I have day-to-day responsibility
for caring for my granddaughter and stand ‘in loco parentis.’ These
responsibilities include caring for and financially supporting her. She is less than
12-months old . . . .”
Degutis approved Martin’s request for FMLA leave from 7 May through 30
June but not beyond the expiration of Martin’s contract. Martin’s FMLA leave
overlapped with the period set out in Martin’s improvement plan. According to
Martin, he relied on Degutis’s approval “as proof that [he] was FMLA[-]eligible
and that [his] reasons were FMLA-qualifying.” He would not have taken leave
had it not been approved as FMLA-qualifying.
After granting Martin FMLA leave, Degutis consulted with several senior
School District employees, including the Director of Human Resources, the
Director of Compensation/Benefits, and the Deputy Superintendent. Those people
informed Degutis that Martin’s contract with the School District, which expired on
30 June 2004, would not be renewed if FMLA leave prohibited Martin from
fulfilling his improvement plan. Degutis informed Martin of this position on 3
4
May 2004 and asked that Martin sign a statement to that effect. Martin refused to
sign.
On 7 May 2004, Martin took FMLA leave as scheduled. But Brittany was
never deployed. Instead, she continued to attend school and to satisfy her
occasional Army Reserve obligations, just as she had done before Martin
requested FMLA leave. When Brittany was at home, Martin assisted her in
feeding and bathing Hannah and changing Hannah’s diaper. When Brittany was at
school, which occurred about four days a week for three or four hours a day and
some evenings, or was periodically away for weekend Army Reserve drills, Martin
was solely responsible for caring for Hannah. Martin continued to provide
Brittany and Hannah financial support during this period.
While Martin was on FMLA leave, Degutis recommended to the human
resources department that Martin’s contract not be renewed. The School District
followed that recommendation. On 21 June 2004, Martin received a letter from
Degutis stating that the School District did not renew Martin’s contract because
Martin failed to complete his improvement plan. The School District concedes
that this notification was in effect a termination of Martin’s employment. Martin’s
last day with the School District was 30 June 2004.
5
Martin sued the School District for interfering with certain of his FMLA
rights and for retaliating against him for taking FMLA leave. The School District
moved for summary judgment on Martin’s claims, which the district court granted.
The district court concluded that Martin was not entitled to FMLA leave, as “no
reasonable jury could find that [Martin] stood in loco parentis in this situation,”
and that the School District was not estopped from challenging Martin’s in loco
parentis status. The district court, in an abundance of caution, also analyzed the
substance of Martin’s claims and concluded that they were without merit. Martin
appeals.
STANDARD OF REVIEW
We review de novo an order granting summary judgment. Drago v. Jenne,
453 F.3d 1301, 1305 (11th Cir. 2006). In doing so, we view “the evidence and all
reasonable inferences drawn from it in the light most favorable to the nonmoving
party.” Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006). We will
affirm summary judgment only if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
6
DISCUSSION
Martin raises several issues on appeal. As an initial matter, Martin contends
that he stood in loco parentis to Hannah and was therefore entitled to FMLA leave
to care for her. But even if his leave were not FMLA-qualifying, Martin also
claims that the School District was estopped from challenging his entitlement to
that leave because the School District originally approved his leave request. In
addition, Martin points to various supposed errors in the district court’s
substantive analysis of his FMLA claims. We address each issue in turn.
A. Martin’s Entitlement to FMLA Leave
The FMLA affords an eligible employee twelve weeks of unpaid leave in
any one-year period “[b]ecause of the birth of a son or daughter of the employee
and in order to care for such son or daughter.” 29 U.S.C. § 2612(a). A son or
daughter “means a biological, adopted, or foster child, a stepchild, a legal ward, or
7
a child of a person standing in loco parentis.” Id. § 2611(12). Martin sought
FMLA leave to care for Hannah on the basis of in loco parentis status.1
The phrase in loco parentis literally means “in the place of a parent.”
Black’s Law Dictionary 791 (7th ed. 1999). According to its generally accepted
common law meaning, in loco parentis “refers to a person who has put himself in
the situation of a lawful parent by assuming the obligations incident to the parental
relation without going through the formalities necessary to legal adoption.” Dillon
v. Maryland-Nat’l Capital Park & Planning Comm’n, 382 F. Supp. 2d 777, 786 (D.
Md. 2005) (internal quotation marks omitted). The Department of Labor has
further defined in loco parentis under the FMLA to include persons with the “day-
to-day responsibility to care for and financially support a child . . . . A biological
or legal relationship is not necessary.” 29 C.F.R. § 825.113(c)(3).
We cannot agree with the district court that no reasonable jury could find
that Martin stood in loco parentis to Hannah while he was on FMLA leave.
During that period, Martin provided Brittany and Hannah substantial financial
support, including a home, food, and health insurance. Martin also played a
significant role in caring for Hannah even though Brittany was never deployed
1
The parties do not dispute that the School District is a covered employer and that Martin is an
eligible employee under the FMLA. 29 U.S.C. §§ 2611(2)(A), (4).
8
overseas: he helped with Hannah when Brittany was at home; and he assumed
sole responsibility for Hannah when Brittany was at school or Army Reserve
drills. We cannot say as a matter of law that Martin stood in loco parentis to
Hannah; nor can we say that he did not. Martin has presented sufficient evidence
to create a genuine issue of material fact, and the district court erred in concluding
otherwise.
Martin argues that the School District should be estopped from challenging
his entitlement to FMLA leave because it originally approved his leave request.
Martin recognizes that this Court has not yet adopted the estoppel doctrine in the
FMLA context, but nevertheless asks us to follow the lead of other courts that
have done so. We need not accept Martin’s invitation, however; the estoppel
doctrine, as a matter of law, would not apply here in any event.
The equitable doctrine of estoppel is invoked “to avoid injustice in
particular cases.” Heckler v. Cmty. Health Servs. of Crawford County, Inc., 104
S. Ct. 2218, 2221 (1984). A party claiming estoppel must show, among other
things,2 that the party to be estopped misrepresented material facts despite being
2
To invoke estoppel, a party must prove that: “(1) the party to be estopped misrepresented
material facts; (2) the party to be estopped was aware of the true facts; (3) the party to be estopped
intended that the misrepresentation be acted on or had reason to believe the party asserting the
estoppel would rely on it; (4) the party asserting the estoppel did not know, nor should it have
known, the true facts; and (5) the party asserting the estoppel reasonably and detrimentally relied on
the misrepresentation.” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008).
9
aware of the true facts. Busby, 513 F.3d at 1326. That is not the case here. The
School District approved Martin’s request for FMLA leave based on Brittany’s
anticipated deployment overseas. When doing so, the School District did not (and
could not) know that this circumstance would never materialize and thereby call
into question Martin’s entitlement to FMLA leave.3 Accordingly, even if we
adopted the estoppel doctrine in the FMLA context—an issue on which we say
nothing—Martin could not invoke it in this case.
B. Martin’s FMLA Claims
We now turn to the substance of Martin’s interference and retaliation
claims. In doing so, we assume for the sake of discussion that Martin stood in
loco parentis to Hannah and was therefore entitled to FMLA leave to care for her.
3
Martin contends that the School District should be charged with constructive knowledge of all
facts relevant to whether his leave qualified under the FMLA. But Martin identifies no statute,
regulation, or case suggesting that constructive knowledge is appropriate under the facts in this case;
and we are aware of none.
10
1. Interference Claim
To prove FMLA interference, an employee must demonstrate that he was
denied a benefit to which he was entitled under the FMLA. 29 U.S.C. §
2615(a)(1); Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d
1199, 1206-07 (11th Cir. 2001). An employee need not “allege that his employer
intended to deny the right; the employer’s motives are irrelevant.” Strickland, 239
F.3d at 1208. Although Martin claims that the School District interfered with
several of his substantive FMLA rights, we see only one that can survive summary
judgment.
An employee has the right following FMLA leave “to be restored by the
employer to the position of employment held by the employee when the leave
commenced” or to an equivalent position. 29 U.S.C. § 2614(a)(1)(A); see also 29
C.F.R. § 825.214(a). But this right is not absolute; an employer can deny
reinstatement “if it can demonstrate that it would have discharged the employee
had he not been on FMLA leave.” Strickland, 239 F.3d at 1208; see also 29
U.S.C. § 2614(a)(3); 29 C.F.R. § 825.216(a); Parris v. Miami Herald Publ’g Co.,
216 F.3d 1298, 1301 n.1 (11th Cir. 2000) (employer that interferes with
employee’s right to reinstatement “bears the burden of proving that the employee
11
would have been laid off during the FMLA period for reasons unrelated to the
[FMLA leave], and therefore is not entitled to restoration”).
Martin contends that the School District interfered with his right to
reinstatement by not renewing his contract.4 In response, the School District
argues that it terminated Martin for a reason wholly unrelated to his FMLA leave:
failure to fulfill his improvement plan. Even if that reason is true, however, the
record does not establish beyond dispute that the School District would have
discharged Martin had he not taken FMLA leave. In fact, the record is unclear:
whether Martin would have been retained and his contract renewed if he had been
able to complete the final three-plus weeks of his improvement plan is a matter of
speculation.5 Martin was unable to complete the plan as a result of his being—at
least arguably—on proper FMLA leave. A genuine issue of material fact remains
4
Martin cannot use the FMLA to circumvent his improvement plan; if reinstated, he just would
have three-plus weeks of employment either to fulfill that plan or to face termination. See 29 U.S.C.
§ 2614(a)(3)(B) (employee not entitled to “any right, benefit, or position of employment other than
[that] to which the employee would have been entitled had the employee not taken the leave”); 29
C.F.R. § 825.216(a) (“An employee has no greater right . . . to other benefits and conditions of
employment than if the employee had been continuously employed during the FMLA leave period.”).
5
The School District does not argue that Martin’s right to reinstatement is precluded under 29
C.F.R. § 825.216(b), which denies an employee hired “for a specific term” the right to reinstatement
“if the employment term . . . is over . . . and the employer would not otherwise have continued to
employ the employee.” But even if it did, that regulation would not support summary judgment.
The School District fails to show beyond dispute that it would have severed its relationship with
Martin had he not taken FMLA leave.
12
concerning Martin’s claim that the School District interfered with his right to
reinstatement. Summary judgment was not proper.
2. Retaliation Claim
To prove FMLA retaliation, an employee must show that his employer
intentionally discriminated against him for exercising an FMLA right. See 29
U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(c). Unlike an interference claim, an
employee “bringing a retaliation claim faces the increased burden of showing that
his employer’s actions were motivated by an impermissible retaliatory or
discriminatory animus.” Strickland, 239 F.3d at 1207 (internal quotation marks
omitted). Martin alleges that the School District retaliated against him for taking
FMLA leave by terminating his employment.
Absent direct evidence of retaliatory intent,6 we apply the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817
(1973). Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 (11th Cir.
6
Martin argues that the School District’s 21 June 2004 representation to him that it was
terminating his employment because he did not fulfill his improvement plan on account of taking
FMLA leave is direct evidence of retaliatory intent. Because Martin has presented sufficient
circumstantial evidence of retaliatory intent to survive summary judgment, we decline to reach the
question of whether direct evidence is in this case.
13
2000). Under that approach, an employee claiming FMLA retaliation must show
that (1) he engaged in statutorily protected activity, (2) he suffered an adverse
employment decision, and (3) the decision was causally related to the protected
activity. Id.
Once the employee establishes a prima facie case of retaliation, the burden
shifts to the employer “to articulate a legitimate reason for the adverse action.”
Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.
2006). If the employer does so, the employee must then show that the employer’s
proffered reason was pretextual by presenting evidence “sufficient to permit a
reasonable factfinder to conclude that the reasons given by the employer were not
the real reasons for the adverse employment decision.” Id. at 1298 (internal
quotation marks omitted). The employee may rely on evidence that he already
produced to establish his prima facie case. Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997); Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,
921 (11th Cir. 1993).
Martin easily demonstrates a prima facie case of retaliation. In fact, the
School District challenges only the causal relation between Martin’s FMLA leave
and termination. But the close temporal proximity between the two—Martin was
terminated while on FMLA leave—is more than sufficient to create a genuine
14
issue of material fact of causal connection. Hurlbert, 439 F.3d at 1298. To prevail
on summary judgment, therefore, the School District must present a legitimate,
non-retaliatory reason for terminating Martin: a reason that no reasonable jury
could conclude was pretextual. The School District has not met this high standard.
The School District contends that Martin was terminated because he failed
to fulfill his improvement plan, not because he took FMLA leave. The School
District says, in effect, that it was not hostile to FMLA-leave taking but rather
indifferent to it: a subtle distinction, yet a legitimate, non-retaliatory explanation.
Intent is at issue. And the record contains evidence on which reasonable minds
could find pretext, including the School District’s warning to Martin about the
ramifications of his taking FMLA leave and the close temporal proximity between
Martin’s FMLA leave and termination. Although the School District’s
explanation may ultimately prove true, a genuine dispute of material fact
nonetheless remains. Summary judgment was not appropriate.
CONCLUSION
We VACATE the district court’s judgment and REMAND the case for
further proceedings.
VACATED and REMANDED.
15
KRAVITCH, Circuit Judge, specially concurring:
I agree with the majority’s opinion vacating the summary judgment and
remanding to the district court. I write this special concurrence to address
Martin’s interference claim. Although I reach the same conclusion as the majority
that summary judgment on Martin’s interference claim was improper, I do so for
different reasons.
It is undisputed that Martin was unable to fulfill his improvement plan on
account of his leave and that the main reason he was not rehired was because he
was unable to complete the plan. The question, therefore, is whether an employer
must give an employee additional time after returning from leave to improve his
prior poor performance through an established improvement plan where the
employee was on a form of probation before taking leave.
The FMLA regulations provide that “[i]f an employee is no longer qualified
for the position because of the employee’s inability to attend a necessary course,
renew a license, fly a minimum number of hours, etc., as a result of the leave, the
employee shall be given a reasonable opportunity to fulfill those conditions upon
return to work.” 29 C.F.R. § 825.215(b). This raises the question of whether the
completion of a program to demonstrate improvement is the type of qualification
program that an employee is entitled to complete after leave or whether it is a
16
privilege that an employer may withdraw if incompatible with FMLA leave.
Under the circumstances of this case, I believe that it is analogous to the
qualification programs discussed in the regulations. See id. Martin’s superior,
Degutis, approved Martin’s leave request, but then informed him that taking the
leave would prevent him from completing the improvement plan and directly
result in the non-renewal of his contract. Thus, the FMLA leave prevented Martin
from completing a program required for contract renewal. The School District,
therefore, interfered with Martin’s rights under FMLA to take approved leave by
not re-hiring him on account of his inability to complete the improvement plan.1
The School District correctly points out that FMLA provides no greater
protection against termination unrelated to FMLA leave than the employee would
have had if he had not requested leave. 29 C.F.R. § 825.216(a); see Gunnell v.
Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998). This rule
applies, however, where the reason is unrelated to the FMLA leave. See e.g.
O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1355 (11th Cir. 2000)
(involving termination of an employee on FMLA because of legitimate company
down-sizing). Here, Martin’s termination was not unrelated to his leave because
1
Additionally, the district court erred in finding that Martin’s rights pursuant to FMLA were not
violated because they were extinguished when his year-to-year employment contract ended. The
School District’s counsel stipulated that “contract non-renewal” is the same thing as “termination”
for the purposes of FMLA.
17
the reason he was unable to complete the required improvement plan was that he
was on FMLA leave.
Because I feel that Martin established that the School District interfered
with his rights under FMLA, I agree with the majority that the district court’s grant
of summary judgment for the School District on the interference claim was
improper.
18
Martin v. Brevard County Public Schools
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2008-09-30
Citations: 543 F.3d 1261
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