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., 

(5th Cir. 1994); Travis v. Bd.
Of Regents of Univ. of Tex., 

(5th Cir. 1997), cert. denied, 

(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., 

, 804 (5th Cir. 1997) (citation
omitted), cert. denied, 

(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., 

(1st Cir. 1998); Diaz
v. Fort Wayne Foundry Corp., 

(7th Cir. 1997); Morgan v. Hilti, Inc.,

(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., 

(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., 

(N.D.Miss. 1995), aff’d, 

  th
(5 Cir. 1996); 

; 

; 

.
       20
            

; 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., 

(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., 

(5th Cir. 1997); Nichols v. Loral
Vought Sys. Corp., 

(5th Cir. 1996); Hilti.
   29
        See Hypes.
                                        11