Case Information
*2
STAHL, Circuit Judge . In this action alleging violations of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654, plaintiff-appellant Scott Bellone appeals from the district court's grant of summary judgment in favor of his former employer, the Southwick-Tolland Regional School District. He argues, among other things, that the district court overlooked several genuine issues of material fact, misapplied the parties' burdens of production, and relied upon inadmissible evidence. [1] We disagree and affirm.
I. Facts & Background
We recite here only the undisputed facts that are
relevant to this appeal, construing those facts in the light most
favorable to Bellone. See Ponte v. Steelcase Inc.,
*3 Bellone began working for the Southwick-Tolland Regional School District in November 2005, as a fourth grade teacher at Woodland Elementary School in Southwick, Massachusetts. On March 4, 2010, Bellone informed the School District that he needed to take a two-week leave of absence for medical reasons. He provided a note from his physician, Dr. Aleksandr Pugach, stating that he would be unable to work from March 3, 2010 to March 23, 2010. On March 23, 2010, Bellone provided a second note from Dr. Pugach, stating that he would be unable to work from March 23, 2010 to April 15, 2010. On March 24, 2010, the School District sent Bellone what it later characterized as an FMLA eligibility notice. The letter instructed Bellone to fill out a certification form and return it within fifteen days. Dr. Pugach submitted the completed form on April 10, 2010, representing that Bellone was unable to perform the job function of "teach[ing] children" for what Dr. Pugach estimated would be an "uncertain" period of time. [2] On May *4 3, 2010, the School District notified Bellone that the form did not provide enough specific information about his medical condition. On May 10, 2010, Bellone gave the School District permission to communicate directly with Dr. Pugach. For the remainder of the academic year, which ended on June 21, 2010, the School District continued to receive correspondence from Dr. Pugach stating that Bellone was unable to work. [3]
On July 9, 2010, the School District sent Bellone what is known as an FMLA designation notice, informing him that he had been approved for FMLA leave, that the School District had designated his twelve-week leave period as March 4, 2010 through June 4, 2010, that he had exhausted his FMLA entitlement during that time, and, therefore, that the School District was "requiring that [Bellone's] physician indicate his/her medical opinion regarding [Bellone's] ability to come back to work for the next school year." The letter also informed Bellone that, if he was not medically able to return to work, he could apply for an unpaid leave of absence for up to one year, pursuant to the applicable collective bargaining agreement.
*5 The School District did not hear from Bellone regarding his ability to return to work until it sent him another letter, on August 25, 2010, informing him that his position remained open and that he had seven days to provide evidence of his fitness for duty. [4] In response, the School District received a letter, dated August 30, 2010, from psychologist Robert L. Wing, who stated that he could "see no psychological reasons why [Bellone] should not return to work at the beginning of the new academic year."
The academic year began on September 1, 2010. On September 9, 2010, the School District sent Bellone a letter informing him that: (1) he was being placed on paid administrative leave as of the date it received the documentation from Robert Wing; (2) his salary would be at a 6B15 level for the coming year; and (3) he was expected to return to work on September 22, 2010, at which point he would be notified of his teaching assignment. Ultimately, the School District assigned Bellone to the following position, as described in the affidavit of the school superintendent:
*6 Half of Mr. Bellone's workday would be spent as a co-teacher in the same classroom and grade where he previously taught. The other half of the day would be spent as a teacher of individual students and small groups from the 3rd and 4th Grades, providing MCAS-based math tutoring and instruction.
The new position provided the same benefits and salary as the fourth grade teaching position Bellone had held before he went out on leave. [5]
Bellone, who believed the new position to be a demotion, did not report for work on September 22, 2010. He was immediately suspended without pay and then officially terminated in October 2010. He filed this lawsuit in June 2012, alleging that: (1) the School District interfered with his FMLA rights by failing to provide proper and timely FMLA eligibility and designation notices; (2) the School District's request for a fitness-for-duty certification interfered with his FMLA rights and was retaliatory; and (3) the School District's actions were retaliatory and caused Bellone severe emotional distress.
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The School District filed a motion to dismiss Bellone's
complaint, see Fed. R. Civ. P. 12(b)(6), which the district court
converted into a motion for summary judgment, see Fed. R. Civ. P.
56, because the School District had attached certain exhibits that
were outside the pleadings, see Fed. R. Civ. P. 12(d). Bellone
filed an opposition and cross-motion for summary judgment. In
January 2013, the district court granted summary judgment in favor
of the School District. The court concluded, as relevant here,
that: (1) the School District's FMLA eligibility and designation
notices were indeed both inadequate and untimely, but Bellone had
failed to demonstrate that he suffered any harm from the lack of
notice; and (2) the School District's request for a medical opinion
as to Bellone's ability to return to work constituted neither
interference with his FMLA rights nor retaliation.
[6]
Bellone v.
Southwick-Tolland Reg'l Sch. Dist.,
II. Analysis
Our review is de novo. See McArdle v. Town of
Dracut/Dracut Pub. Sch.,
*8 Under the FMLA, an eligible employee is guaranteed twelve weeks of unpaid leave during any twelve-month period for, among other things, a serious medical condition that renders the employee unable to perform his job duties. 29 U.S.C. § 2612(a)(1)(D). It is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the FMLA]." Id. § 2615(a)(1). According to the Labor Department regulations that accompany the FMLA, when an employer "acquires knowledge that an employee's leave may be for an FMLA–qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances." 29 C.F.R. § 825.300(b)(1). This is known as an eligibility notice. Once the employer "has enough information to determine whether the leave is being taken for a[n] FMLA–qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances." Id. § 825.300(d)(1). This is known as a designation notice.
Here, the district court concluded that the March 24, 2010 eligibility notice and the July 9, 2010 designation notice were both untimely, and that the eligibility notice was also inadequate, as it did not contain any of the information required by 29 C.F.R. § 825.300(b)(2) and (c). Bellone , 915 F. Supp. 2d at *9 194-95. The School District has not challenged those findings, so we accept them as correct for purposes of this appeal.
Nor has the School District challenged the validity of
the Labor Department regulations, which provide that an employer's
failure to follow the FMLA notice requirements "may constitute an
interference with, restraint, or denial of the exercise of an
employee's FMLA rights." 29 C.F.R. § 825.300(e). Late or
inadequate notices, however, are not actionable unless they harm
the employee. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S.
81, 90-91 (2002); McArdle,
We agree with the district court that Bellone has
demonstrated no genuine dispute of material fact that would support
a finding that he suffered harm as a result of the School
District's late and inadequate notices. The record shows that
Bellone went out on leave on March 4, 2010,
[7]
and, from that point
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through the end of the academic year on June 21, 2010, the School
District received regular communications from Dr. Pugach stating
that Bellone was medically unable to work. Indeed, there is no
affirmative evidence that Bellone was fit to return to work until
August 30, 2010, which is when psychologist Robert Wing submitted
his letter, stating that he saw "no psychological reasons why
[Bellone] should not return to work at the beginning of the new
academic year." Once the School District put forward evidence that
Bellone could not have structured his leave differently, the burden
was on Bellone to "offer 'definite, competent evidence to rebut the
motion.'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st
Cir. 2009) (quoting Mesnick v. Gen. Elec. Co.,
Yet Bellone presented no evidence whatsoever to contradict the notes from Dr. Pugach. He simply made unsupported statements in his amended complaint, which he repeated in his brief opposing the School District's summary judgment motion, that, had he known that his leave would count toward his FMLA entitlement, he could have preserved some of that leave by modifying his medical treatment, requesting a workplace accommodation or intermittent be suggesting is that his leave should not have started counting toward his FMLA entitlement until the School District provided the proper notice. That, however, is not the governing rule. See Ragsdale, 535 U.S. at 84 (striking down a Labor Department regulation that provided that, if an employer did not properly designate a particular leave period as FMLA leave, it would not count toward the employee's FMLA entitlement).
leave, or returning to work earlier. Our case law is clear that,
in the summary judgment context, a "nonmovant may not rest upon
mere allegations in, say, an unverified complaint or lawyer's
brief," Kelly v. United States,
Bellone's burden to present evidence that it would have
been medically possible for him to structure his leave differently
distinguishes his case from Conoshenti v. Public Service Electric
& Gas Co.,
The district court thus properly treated as undisputed the fact that Bellone could not have returned to work before the expiration of his FMLA leave. See Fed. R. Civ. P. 56(e)(2). "In short, nothing was lost, nor was any harm suffered, by reason of the alleged violations," McArdle, 732 F.3d at 35, and summary judgment was appropriate with respect to Bellone's notice claim.
Bellone's failure of production also dooms his claim that
the School District violated the FMLA's requirement that a covered
employee returning from leave be restored to his previous position,
29 U.S.C. § 2614(a)(1)(A), or "to an equivalent position with
equivalent employment benefits, pay, and other terms and conditions
of employment," id. § 2614(a)(1)(B); see also 29 C.F.R. § 825.215
(defining the phrase "equivalent position"). We have held that an
employee is not entitled to reinstatement under the FMLA if he is
unable to return to work until after the expiration of his leave.
Colburn v. Parker Hannifin/Nichols Portland Div.,
Bellone also claims that the School District did not
uniformly apply its fitness-for-duty certification requirement, see
29 U.S.C. § 2614(a)(4), but he has failed to satisfy his summary
judgment obligation on this point as well. The School District put
forward evidence, in the form of an affidavit from the
superintendent of schools, that it consistently requires a fitness-
for-duty certification for any employee returning to work after a
serious illness. Bellone did not offer any evidence to refute that
assertion and thus has not demonstrated the existence of a genuine
factual dispute. See Sensing,
Bellone also argues for the first time on appeal that the district court should have analyzed his case pursuant to the FMLA's special rules for school employees. See 29 U.S.C. § 2618; 29 C.F.R. §§ 825.600-825.604. We find that claim forfeited as well, *15 since it was not raised below. See United States v. Nee, 261 F.3d 79, 86 (1st Cir. 2001). In any event, we fail to see how the regulation that Bellone cites, 29 C.F.R. § 825.602(a)(1), would change the analysis here. Bellone has presented no evidence that he attempted to return to work "during the three-week period before the end of the term," id. § 825.602(a)(1)(ii), or that he was capable of doing so.
III. Conclusion
For the foregoing reasons, we affirm. Each party shall bear its own costs.
Notes
[1] Bellone was represented by counsel before the district court and in his opening brief on appeal. He filed his reply brief pro se.
[2] The School District established this fact by attaching, as
an exhibit to its summary judgment motion, the actual form
submitted by Dr. Pugach and by describing Dr. Pugach's
representations in an affidavit from the School District's
superintendent. On appeal, Bellone challenges that portion of the
affidavit as hearsay. See Vazquez v. Lopez-Rosario,
[3] The record in this case includes several notes from Dr. Pugach certifying Bellone's inability to perform his job duties from March 3, 2010 through May 27, 2010, as well as an affidavit from the superintendent stating that "[t]hroughout the remaining months of the school year, the District continued to receive correspondence from Dr. Pugach advising of Mr. Bellone's inability to perform the duties of his position." Bellone did not object to that portion of the affidavit before the district court, nor has he done so on appeal.
[4] At around the same time, the School District offered Bellone's position to another individual, since the first day of the 2010-2011 academic year (September 1) was approaching, and teachers were required to report to work on August 30, 2010. That offer was qualified as to whether it would be for the entire academic year, given Bellone's uncertain health status.
[5] In his pro se reply brief, Bellone belatedly suggests that there exists a genuine dispute of material fact as to whether the new position involved a reduction in salary. He has attempted to support that assertion with evidence not submitted to the district court, which we will not consider on appeal. See Smith, 732 F.3d at 76. The School District, on the other hand, supported with admissible evidence its representation before the district court that 6B15 was the correct salary level. The district court thus properly treated that fact as undisputed, and we will do the same. See Fed. R. Civ. P. 56(e)(2).
[6] Bellone has not challenged the district court's grant of summary judgment with respect to either of his retaliation claims, so we do not address them here.
[7] Bellone argues that the exact start date of his FMLA leave is a genuine issue of material fact, but he does not dispute that he stopped coming to work on March 4, 2010, used more than twelve weeks of leave, and did not inform the School District until August 30, 2010 that he was able to return to work. What Bellone seems to