Filed: May 02, 2014
Latest Update: Mar. 02, 2020
Summary: Bellone what it later characterized as an FMLA eligibility notice. 1998)(Evidence that is inadmissible at trial, such as, inadmissible hearsay, may not be considered on summary judgment. The district court thus, properly treated that fact as undisputed, and we will do the same.the employee.
United States Court of Appeals
For the First Circuit
No. 13-1341
SCOTT BELLONE,
Plaintiff, Appellant,
v.
SOUTHWICK-TOLLAND REGIONAL SCHOOL DISTRICT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Scott Bellone, pro se.
Patricia M. Rapinchuk, Jeffrey J. Trapani, and Robinson
Donovan, P.C. on brief for appellee.
May 2, 2014
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., 741 F.3d 310,
313 (1st Cir. 2014). Bellone has attempted to supplement the
record on appeal with certain evidence that he did not present to
the district court. As we made clear in a December 2013 order, we
will decide this appeal on the basis of the record compiled before
the district court. See Fed. R. App. P. 10(a) (describing the
composition of the record on appeal); Smith v. Jenkins,
732 F.3d
51, 76 (1st Cir. 2013) ("Save for certain exceptions not applicable
here, we do not consider arguments or evidence not presented to the
district court.").
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-
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
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, 134 F.3d 28,
33 (1st Cir. 1998)("Evidence that is inadmissible at trial, such as
inadmissible hearsay, may not be considered on summary judgment.").
However, because Bellone did not raise any objection to the
affidavit below, the district court was free to consider it. See
Desrosiers v. Hartford Life & Accident Ins. Co., 515 F.3d 87, 91
(1st Cir. 2008). In any event, Bellone has not challenged the
underlying medical record from Dr. Pugach, which would almost
certainly have been admissible, see Fed. R. Evid. 803(6), even if
the statement in the affidavit was not.
-3-
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.
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-
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:
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-
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.
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-
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., 915 F. Supp. 2d 187 (D. Mass.
2013). This appeal followed.
II. Analysis
Our review is de novo. See McArdle v. Town of
Dracut/Dracut Pub. Sch., 732 F.3d 29, 32 (1st Cir. 2013). Summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a).
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-
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
-8-
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, 732 F.3d at 34-35; Dube v. J.P. Morgan
Investor Servs.,
201 F. App'x 786, 788 (1st Cir. 2006) (per
curiam). The harm Bellone claims is that he could have structured
his leave differently in order to preserve some of his FMLA
entitlement if the School District had given him the proper notice.
See
Ragsdale, 535 U.S. at 91;
McArdle, 732 F.3d at 34; Dube, 201 F.
App'x at 788.
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
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
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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.,
950 F.2d 816, 822
(1st Cir. 1991)); see Fed. R. Civ. P. 56(c)(1).
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).
-10-
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, 924 F.2d 355, 357 (1st Cir. 1991),
nor upon "denials of [the movant's] pleading, but must set forth
specific facts showing that there is a genuine issue of material
fact as to each issue upon which he would bear the ultimate burden
of proof at trial," Sensing v. Outback Steakhouse of Fla., LLC,
575
F.3d 145, 152 (1st Cir. 2009) (citation and internal quotation
marks omitted) (alteration in original); see also Rivera-Colón v.
Mills,
635 F.3d 9, 12 (1st Cir. 2011) ("Unsupported allegations and
speculation do not demonstrate either entitlement to summary
judgment or the existence of a genuine issue of material fact
sufficient to defeat summary judgment."). Bellone did not satisfy
that burden, nor did he demonstrate, "by affidavit or declaration
that, for specified reasons," he could not "present facts essential
to justify" his opposition to the summary judgment motion. Fed. R.
Civ. P. 56(d).
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., 364 F.3d 135 (3d Cir. 2004), upon which he relies. In
Conoshenti, as in this case, the defendant employer did not provide
the requisite FMLA notice.
Id. at 143. Part of the leave
-11-
Conoshenti had taken was due to a shoulder surgery, which he
insisted he could have scheduled differently in order to preserve
some of his leave time, had he known about his FMLA rights. Id. at
145 n.8. The Third Circuit reversed a grant of summary judgment in
favor of Conoshenti's employer, emphasizing that the employer had
"never asserted that Conoshenti could not meet his burden of
proving that he could have structured his leave differently" and
thus "did not satisfy its initial burden of pointing to an absence
of evidence as to whether Conoshenti had been prejudiced."
Id. at
146. "Conoshenti was therefore not required . . . to respond with
specific facts establishing a genuine issue with respect to the
prejudice requirement."
Id. Here, on the other hand, the School
District came forward with affirmative evidence demonstrating that
Bellone was unable to return to work before the end of the academic
year. At that point, it was up to Bellone to establish a genuine
issue for trial by presenting more than just a bare allegation that
he could have done things differently if he had known that his
leave would count toward his FMLA entitlement.
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.
-12-
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.,
429 F.3d 325, 332
(1st Cir. 2005); see 29 C.F.R. § 825.216(c). The undisputed facts
in this case demonstrate that Bellone went out on leave on March 4,
2010 and was medically unable to return to work before at least the
end of the academic year on June 21, 2010. That was a leave period
of about fifteen weeks -- more than the twelve weeks guaranteed to
Bellone under the FMLA. We therefore need not address whether the
new position to which Bellone was assigned in the fall of 2010 was
equivalent to his old one within the meaning of the FMLA. See
Colburn, 429 F.3d at 332. The School District's failure to provide
timely notice does not salvage Bellone's reinstatement argument,
since he has not demonstrated that he could have returned to work
within the FMLA period even if the School District had properly
notified him of his rights. See Sarno v. Douglas Elliman-Gibbons
& Ives, Inc.,
183 F.3d 155, 161-62 (2d Cir. 1999) (assuming that
-13-
employer did not provide proper notice to employee of his FMLA
rights but nonetheless finding no right to reinstatement where
undisputed evidence demonstrated that employee was unable to return
to work at end of leave period).
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, 575 F.3d at 152-53;
Meuser, 564 F.3d
at 515. On appeal, Bellone claims that he could not prove the
absence of a uniform policy before discovery, but he never raised
that argument in opposition to the School District's summary
judgment motion, as required by Federal Rule of Civil Procedure
56(d), so we will not consider it at this stage. See Nieves-Romero
v. United States,
715 F.3d 375, 381-82 (1st Cir. 2013).
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,
-14-
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.
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