RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0239p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 DANIEL DOBROWSKI,
                                                -
                             Plaintiff-Appellant,
                                                -
                                                -
                                                    No. 08-1806
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellee. -
 JAY DEE CONTRACTORS, INC.,
                                                -
                                               N
                  Appeal from the United States District Court
                for the Eastern District of Michigan at Detroit.
              No. 07-13267—Lawrence P. Zatkoff, District Judge.
                                Argued: April 21, 2009
                            Decided and Filed: July 8, 2009
      Before: BOGGS, Chief Judge; and MOORE and SUTTON, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Joseph F. Lucas, SKUPIN & LUCAS, P.C., Detroit, Michigan, for Appellant.
Megan P. Norris, MILLER, CANFIELD, PADDOCK & STONE, P.L.C., Detroit, Michigan,
for Appellee. ON BRIEF: Joseph F. Lucas, SKUPIN & LUCAS, P.C., Detroit, Michigan,
for Appellant. Megan P. Norris, Brian M. Schwartz, MILLER, CANFIELD, PADDOCK
& STONE, P.L.C., Detroit, Michigan, for Appellee. Rae T. Vann, NORRIS TYSSE
LAMPLEY & LAKIS, LLP, Washington, D.C., for Amicus Curiae.
                                  _________________

                                       OPINION
                                  _________________

       BOGGS, Chief Judge. Daniel Dobrowski appeals from the district court’s grant of
summary judgment in his Family and Medical Leave Act (FMLA) action. He argues that
notwithstanding his admitted ineligibility for the Act’s protections, defendant Jay Dee
Contractor should be estopped from now denying his eligibility because defendant
represented, prior to his taking leave, that he was eligible. Although we disagree in part



                                            1
No. 08-1806          Dobrowski v. Jay Dee Contractors, Inc.                             Page 2


with the district court’s reasoning, we agree with its resolution: equitable estoppel should not
bar Jay Dee from raising non-eligibility as a defense to Dobrowski’s FMLA claim.
Accordingly, we affirm the grant of summary judgment.

                                               I

        Dobrowski, a mechanical engineer, was terminated by Jay Dee upon returning to
work from an approved leave of absence for an elective surgical procedure undergone to
treat his epilepsy. He was hired by Jay Dee in September 2003 and assigned to a joint-
venture project for the Detroit Municipal Government to rehabilitate sludge thickeners at
the Detroit Wastewater Treatment Plant.            Dobrowski’s primary responsibility was
evaluating, coordinating, and processing shut-down requests from sub-contractors, which
required portions of the wastewater plant to be turned off for completion of the tasks.

        Dobrowski has been diagnosed with epilepsy since he was a child. Even though he
took regular medication and underwent various treatments to control his disease, Dobrowski
continued to have seizures as an adult. About six months prior to his October 2004 surgery,
Dobrowski, in consultation with his physician, decided to explore additional treatment
options, ultimately settling on a surgical option. In mid-July, his doctor cleared him for the
surgery and scheduled it for October 15.

        At that time, Dobrowski informed Jay Dee that he had scheduled the surgery in a
meeting with his supervisor, A.G. Mekkaoui. He explained, “I got the okay and so I will be
having surgery on this date.” All parties appeared to have assumed that Jay Dee would
grant him time off for the operation, but Dobrowski’s conversations with his superiors over
the next months did not eliminate all confusion over the amount of leave required. On
September 10, 2004, Dobrowski sent an email to Jay Dee’s President, Tom DiPonio,
captioned “leave of absence” that identified his “operation coming up.” He explained how
much work he could miss depending on the “many ways this procedure could end up” and
indicated that he thought with all the information provided, “a small meeting would clear
things up.”

        Following that meeting between Dobrowski, DiPonio, and Makkaoui discussing the
surgery and leave, DiPonio gave a Dobrowski a form headed “APPLICATION FOR LEAVE
No. 08-1806          Dobrowski v. Jay Dee Contractors, Inc.                         Page 3


OF ABSENCE UNDER THE FMLA.” Dobrowski filled out the form and returned it, dated
September 27, 2004. On October 5, DiPonio wrote to Dobrowski, memorializing the
decision as to Dobrowski’s leave. The letter indicated that Dobrowski was to take a week
of paid vacation beginning October 11, 2004, have the surgery on October 15, and that
“[p]ursuant to the Family and Medical Leave Act, Jay Dee Contractors, Inc. will leave
[Dobrowski’s] position open for at least twelve (12) weeks from October 18, 2004.”
DiPonio included with the letter the federal Department of Labor’s “Employer Response to
Employee Request for Family or Medical Leave” form that summarized Dobrowski’s
application, indicated that he was an eligible employee, and confirmed that the company was
providing him with FMLA leave. It also stated that Dobrowski was to receive short term
disability benefits from his insurance company, and that Jay Dee would “supplement the
insurance payments . . . up to the level of [his] present salary.”

        Within four weeks after the surgery, Dobrowski decided that he could resume work
and contacted DiPonio on November 22, 2004 about scheduling his return. They apparently
agreed that, provided he receive his doctor’s consent, Dobrowski would return in early
December. On December 9, Dobrowski called DiPonio and left him a voicemail indicating
that he would have the return-to-work letter on the following Monday, December 13.
Dobrowski reported to Jay Dee’s headquarters on that day and met with DiPonio.

        It was then that DiPonio informed Dobrowski that he was being terminated. DiPonio
explained that Jay Dee’s work at the wastewater plant was winding down and they no longer
needed Dobrowski’s services. Dobrowski inquired about a transfer, but DiPonio said that
none of the company’s other projects needed an additional engineer. When asked why Jay
Dee did not communicate its decision earlier, DiPonio responded “Why? So you could stay
on medical leave?”

        Dobrowski then sued in state court, alleging a violation of the Michigan
Handicapper’s Civil Rights Act. He later amended his complaint to include a claim under
the FMLA, and Jay Dee removed the case to federal court. The district court declined to
exercise supplemental jurisdiction over the state law claim and remanded it to state court.

        Following discovery, Jay Dee moved for summary judgment, arguing that
(1) Dobrowski was not eligible for FMLA protection because Jay Dee employed fewer than
No. 08-1806            Dobrowski v. Jay Dee Contractors, Inc.                                     Page 4


50 employees within 75 miles of Dobrowski’s work site; and (2) he was not entitled to
reinstatement because his job was eliminated from the project. In response, Dobrowski
argued that the doctrine of equitable estoppel applied to prevent Jay Dee from denying his
eligibility after having indicated to him at the time of his surgery that he was eligible, and
that the record established a material dispute of fact as to the second ground. The district
court rejected these arguments, and granted summary judgment on each ground.

         This timely appeal followed.

                                                    II

         The question on summary judgment is whether the moving party has demonstrated
that the evidence available to the court establishes no genuine issue of material fact such that
it is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c). We draw all justifiable
inferences in the light most favorable to the non-moving party, Matushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 

, 587 (1986), and review the district court’s decision
de novo. Smith v. Williams-Ash, 

, 599 (6th Cir. 2008). Because we resolve the
eligibility dispute in Jay Dee’s favor, we will not discuss the district court’s alternative
ground for granting summary judgment.

                                                    A

         All now agree that Dobrowski was not in fact eligible for FMLA protection because
Jay Dee did not have the requisite 50 employees within 75 miles of the Wastewater worksite.
Instead, the dispute centers on whether Jay Dee’s statements that Dobrowski was being given
FMLA leave now bind the defendant under the doctrine of equitable estoppel such that we
                                                             1
should treat him as entitled to the Act’s protections.

         Our circuit recognizes that in certain circumstances equitable estoppel applies
to employer statements regarding an employee’s FMLA eligibility, preventing the



         1
           Jay Dee asserts that Dobrowski waived this estoppel argument by not expressly pleading it
below. Though his initial pleadings do not include the estoppel argument, the question is properly
presented for review because equitable estoppel is not a cause of action but a judicial doctrine that bars
the assertion of a claim or defense. Dobrowski did raise his estoppel argument in his response to the
motion for summary judgment that first asserted the eligibility defense, and the district court decided the
issue.
No. 08-1806            Dobrowski v. Jay Dee Contractors, Inc.                                       Page 5


employer from raising non-eligibility as a defense.2 See Sorrell v. Rinker Materials
Corp., 

, 336 (6th Cir. 2005) (remanding for the district court to consider
whether an employer is estopped from denying its employee’s eligibility); see also Davis
v. Mich. Bell Telephone Co., 

, 353 (6th Cir. 2008) (holding that the plaintiff
could not establish the basis for equitable estoppel); Mutchler v. Dunlap Memorial
Hosp., 

, 860-61 (6th Cir. 2007) (same); Wilkerson v. Autozone, Inc., 152
F. App’x 444, 450 (6th Cir. 2005) (endorsing a district court’s use of an equitable
estoppel jury instruction). But our precedents do not make clear precisely which
situations merit the application of equitable estoppel. We have cited two different
equitable estoppel rules in FMLA cases.

         When we first recognized equitable estoppel in an FMLA case, we collected
decisions from other courts of appeals to support the proposition that “under the right
circumstances, an employer may be equitably estopped from challenging an employee’s
entitlement to [FMLA] leave.” 

(citing Duty v. Norton-Alcoa
Proppants, 

, 493-94 (8th Cir. 2002); Kosakow v. New Rochelle Radiology
Assocs., P.C., 

, 722-27 (2d Cir. 2001); Dormeyer v. Comerica Bank-
Illinois, 

, 582 (7th Cir. 2000)). We provided no additional discussion of
those circumstances, but two of the cited cases (Duty and Kosakow) that elaborated on
them relied on the Supreme Court’s decision in Heckler v. Community Health Services
of Crawford County, Inc., 

, 59 (1986). See, e.g., 

.




         2
           While Jay Dee challenges the applicability of the doctrine, amicus curiae, Equal Employment
Advisory Council and the Chamber of Commerce of the United States, challenge its viability. They argue
that eligibility by estoppel “is impermissible under the act.” Amicus Br. 15. Many courts of appeals,
including this one, have held that a Department of Labor regulation that imposed estoppel-like liability in
all instances where an employer represented to the employee that she was eligible was not a reasonable
interpretation of the statute’s language and therefore was invalid. See 

. The
friends of the court now rely on these cases to assert that a court should not do by case law what the
Secretary of Labor could not do by notice and comment. Amicus Br. at 15. This argument ignores the
difference between statutory interpretation and the exercise of the court’s equitable powers. Equitable
estoppel does not require the court to hold that the FMLA itself allows a theory of eligibility for employees
other than those covered by the statute. Instead, the court uses its traditional equitable power to prevent
the employer from making an argument that it can be fairly determined to have forfeited based on its
behavior toward an employee. See Thomas v. Miller, 

, 300-01 (6th Cir. 2007); cf. Nken v.
Holder, 

, 1760 (2009) (holding that the traditional equitable power to grant a stay pending
review is not affected by statutory restriction of injunction power).
No. 08-1806        Dobrowski v. Jay Dee Contractors, Inc.                               Page 6


There, the Supreme Court, commenting that the core principles of the doctrine are
“tolerably clear,” adopted the Restatement of Torts statement of the rule:

       If one person makes a definite misrepresentation of fact to another person
       having reason to believe that the other person will rely upon it and the
       other in reasonable reliance upon it does an act . . . the first person is not
       entitled
       ...
       (b) to regain property or its value that the other acquired by the act, if the
       other in reliance upon the misrepresentation and before discovery of the
       truth has so changed his position that it would be unjust to deprive him
       of that which he thus acquired.

(quoting Restatement (Second) of Torts § 894(1) (1979)). The
Court continued, “the party claiming the estoppel must have relied on its adversary’s
conduct in such a manner as to change his position for the worse, and that reliance must
have been reasonable in that the party claiming the estoppel did not know nor should it
have known that its adversary’s conduct was misleading.” 

cited
Heckler for the generic proposition that an FMLA defendant should not be estopped
where the plaintiff failed to show that the defendant had made any misrepresentation
regarding her eligibility. See 

.

       In the time between our decisions in Sorrell and Davis applying the Supreme
Court’s estoppel rule, we decided another FMLA estoppel case, Mutchler v. Dunlop
Memorial Hospital, 

. We did not reference Heckler. Instead, we followed
a line of cases that discuss and apply equitable estoppel in the ERISA context. 

(quoting Tegoning v. Am. Community Mutual Ins. Co., 

, 83
(6th Cir. 1993)). Those cases provide a more elaborate basis for estoppel, requiring that
“[t]o successfully invoke the doctrine, a claimant must show”:

       (1) conduct or language amounting to a representation of material fact;
       (2) awareness of true facts by the party to be estopped;
       (3) an intention on the part of the party to be estopped that the
       representation be acted on, or conduct toward the party asserting the
       estoppel such that the latter has a right to believe that the former’s
       conduct is so intended;
       (4) unawareness of the true facts by the party asserting the estoppel; and
No. 08-1806         Dobrowski v. Jay Dee Contractors, Inc.                            Page 7


        (5) detrimental and justifiable reliance by the party asserting estoppel on
        the representation.

of the estoppel rule contain a manifest difference. The
Supreme Court’s version of the rule does not require the party asserting the estoppel to
show that the other party was aware of the “true facts” or that the other party intended
for the statement to be relied upon – “[t]he rule . . . is operative although the one making
the representation believes that his statement is true . . . .” Restatement (Second) of
Torts § 894 cmt. b. And this difference is not without consequence. For instance, it
appears likely that Jay Dee was not intentionally or recklessly misleading Dobrowski.
It simply was mistaken as to how many employees it had near the Wastewater plant.
Indeed, the district court, accurately citing and faithfully applying Mutchler, based its
estoppel decision in part on the fact that a mistake is not sufficient to invoke equitable
estoppel.

        The better approach is to follow the requirements for equitable estoppel endorsed
by the Supreme Court in Heckler. Even if “the hallmark of the doctrine is its flexible
application,” the Court underscored that “certain principles are tolerably clear” and
quoted the Restatement for those principles. 

. Our circuit should
not now impose an additional knowledge or bad faith requirement – doing so only risks
making the doctrine intolerably unclear.

        This has been the view of most of the circuit courts to consider equitable estoppel
in the FMLA context. See, e.g., 

; but see Martin v. Brevard
County Pub. Schs., 

, 1266 & n.2 (11th Cir. 2008) (quoting a version of
equitable estoppel similar to our statement in Mutchler). The two circuit courts to face
the issue directly – whether equitable estoppel requires the party to be estopped to have
known that it was making a misrepresentation – have followed Heckler and held that a
party need only show a misrepresentation, a reasonable expectation of reliance on it, and
reasonable reliance to invoke estoppel. See 

(5th Cir. 2006)
(“[A]n employer who without intent to deceive makes a definite but erroneous
No. 08-1806         Dobrowski v. Jay Dee Contractors, Inc.                         Page 8


representation to his employee that she is an ‘eligible employee’ and entitled to leave
under FMLA, and has reason to believe that the employee will rely on it, may be
estopped to assert a defense of non-coverage . . . .”); 

. We
have favorably cited these cases and their discussion of estoppel (both in and out of the
context of the FMLA). See 

; 

;
Wilkerson, 152 F. App’x at 450. Indeed, Mutchler itself applied only the portions of its
stated rule that accord with Heckler’s approach, holding that the plaintiff’s estoppel
argument failed because she could not show that her reliance was reasonable (because
she knew of her ineligibility) and that she could not show any detriment to her. 

.

         Moreover, there are important practical reasons to sometimes allocate the risk of
a mistaken statement of FMLA eligibility to the employer and not the employee. The
FMLA requires the employer to determine eligibility: “[o]nce an employer is given
notice that the employee is requesting leave for a FMLA-qualifying reason, the employer
bears the obligation to collect any additional information necessary for the leave to
comply with the requirements of the FMLA.” Hammon v. DHL Airways, Inc., 

, 450 (6th Cir. 1999). And the employer is the cheaper cost avoider. The employer
is more likely to know the precise number of employees and more likely to have access
to legal resources to determine the consequences of that number. The employer also
likely will need to determine eligibility only once for each class of employees – the
opposite rule duplicates this burden by requiring each employee, whenever leave is
contemplated, to double-check eligibility. Indeed, a rule requiring the employee to know
her status regardless of what an employer says is especially perverse because the
employer may have exclusive control over employee data such that an employee could
not – even if she wished – review the employer’s assertion of eligibility prior to taking
leave.

         Accordingly, we hold that to prevail on his equitable estoppel argument,
Dobrowski need meet only the requirements for equitable estoppel adopted by the
Supreme Court in Heckler and discussed in the Restatement (Second) of Torts § 894.
No. 08-1806            Dobrowski v. Jay Dee Contractors, Inc.                                       Page 9


He need not show that his employer either was aware of the true facts or intended for the
statement to be relied on.             Instead, Dobrowski need show only (1) a definite
misrepresentation as to a material fact, (2) a reasonable reliance on the
misrepresentation, and (3) a resulting detriment to the party reasonably relying on the
misrepresentation. See 

.

                                                     B

         Applying this standard, we agree with the district court that Dobrowski has not
raised a dispute of material fact as to all the elements required to invoke the court’s
equitable powers. To be sure, Jay Dee’s actions amount to a definite misrepresentation
of his eligibility. He applied for leave on an FMLA form and received written notice
from his company that his leave was “pursuant to the Family and Medical Leave Act”
and that he was an “eligible employee” even though he was, in fact, not covered by the
Act. But on the record before the court, Dobrowski cannot show that he detrimentally
relied on this misstatement of eligibility.

         There is no evidence in the record to show that he “change[d] his position” in
reliance on the belief that his leave would be FMLA-protected. 

.
Had he relied on the erroneous representations, one would expect Dobrowski to be able
to point to some action or statement that indicated that his decision to have the surgery
was contingent on his understanding of his FMLA status; or perhaps evidence that raises
an inference of such contingency – for example, a record that he made an inquiry as to
his rights, asked for written confirmation of his leave arrangement, or changed his
behavior after being told he was eligible. Cf. 

; 

; 

.3 At the very least, Dobrowski could have placed an

         3
            Dobrowski cites one fact that he argues raises an inference of reliance, but we are not persuaded
that it raises a genuine issue of material fact for a jury to decide. He asserts that the fact that he
“compli[ed] with FMLA procedures” permits an inference that he depended on the Act’s protections when
deciding to have the surgery. But the question is not whether Dobrowski acted in conformity with the
FMLA – surely he informed his employer with proper documentation and provided the requisite 30 days
notice – but whether he changed his behavior in reliance on the Act. For instance, in the case Dobrowski
cites for this argument, Duty v. Norton-Alcoa, the plaintiff remained on leave beyond his FMLA period
after receiving written assurance from his employer that his extended leave would be covered. When the
employer defended against his suit on the ground that he had exhausted his leave, the court held that equity
prevented it from doing so because the employee’s actions in compliance with their assurances evidenced
reliance on it. 

. As discussed in the text, there is no comparable evidence that
No. 08-1806          Dobrowski v. Jay Dee Contractors, Inc.                       Page 10


affidavit in the record stating that he would have forgone the surgery but for his belief
that his job status was protected by the FMLA. See FED. R. CIV. P. 56(e). But none of
this is present in the record.

        If anything, the record shows that Dobrowski had already decided on and
scheduled the surgery by the time he was informed of his eligibility. There is no
evidence of a discussion of the FMLA eligibility prior to the application for leave filed
with Jay Dee on September 27 – about three weeks prior to his October 15 surgery, and
well after he informed the company of his planned absence. In deposition, Dobrowski
indicated that he knew that he would undergo the surgery about six months in advance,
and told Jay Dee as soon as he knew the date, “maybe three months before . . . the actual
surgery.” ROA 291-92. At that time, he said “I got the okay so I will be having surgery
on [October 15].” ROA 292. After his superiors asked questions about how long he
planned to take off work, Dobrowski organized a meeting to discuss his absence. His
email preceding the meeting references his “operation coming up” and does not ask for
permission to take leave, discuss his rights under the FMLA, or indicate a willingness
to delay or reschedule depending on his legal status.

        Dobrowski argues that because the surgery was elective, he could have
rescheduled it had he known that he was not FMLA eligible. It is true in the abstract that
he could have rescheduled it; but it is his burden on summary judgment to produce
evidence supporting his estoppel claim, and the record must contain evidence permitting
a finding that he would have. See Celotex Corp. v. Catrett, 

, 323-24 (1986).
Dobrowski points to no such evidence. And on our own review, taking inferences in his
favor, as we must, we cannot find any evidence that tends to support his assertion. In
fact, the most direct statement in the record as to Dobrowski’s intent – that he “got the
okay” and scheduled the surgery – suggests that at the time he was waiting only on his
doctor’s permission and not assurance of legal protection.




Dobrowski’s behavior depended on Jay Dee’s assurances.
No. 08-1806        Dobrowski v. Jay Dee Contractors, Inc.                         Page 11


       In the alternative, Dobrowski argues that because he relied on Jay Dee’s
statement, he did not have the opportunity to investigate the number of employees
working for Jay Dee’s joint venture partner to attempt to argue that their employees
should be pooled as “joint employers” under FMLA’s implementing regulations. See
29 C.F.R. § 825.106. This argument is curious because now, after discovery, Dobrowski
has had an opportunity to investigate whether he was eligible on a joint employer theory.
Had it been true that there were more than 50 employees in the relevant area when
counting both of the joint venturers, there would be no need for this equitable estoppel
analysis, because Dobrowski could then demonstrate a genuine issue of material fact as
to eligibility. See Grace v. USCAR, 

, 662-63 (6th Cir. 2008). Since he
cannot make that argument, he also cannot show that his failure to count other
employees was a detriment because his counting could not have made him an eligible
employee. And even if it could have made him eligible, there remains no evidence that
legal protections for his leave were material to his decision to take it and, consequently,
no evidence that he would have counted up the employees before getting the surgery.

       Dobrowski’s final argument is that this understanding of the record is at odds
with the FMLA’s requirements. The statute places a duty on an employee taking
foreseeable leave to “make a reasonable effort to schedule the treatment so as not to
disrupt unduly the operations of the employer.” 29 U.S.C. § 2612(a)(2)(A). Dobrowski
reasons that by scheduling the surgery before applying for leave, he was merely living
up to his statutory duty and that therefore viewing that action as demonstrating
indifference towards an employer’s later assertion of ineligibility puts an employee in
a “Catch-22”: don’t schedule and you lose statutory protection, schedule and you lose
protection in equity. This argument is premised on a misunderstanding of an employee’s
duties. The provision requires that an eligible employee not inconvenience an employer
by scheduling a foreseeable treatment in an avoidably disruptive way. It does not mean
that the employee must have scheduled treatment prior to applying for FMLA leave.
And even if it did, that legal requirement would not excuse Dobrowski from the
evidentiary requirement on summary judgment that an FMLA plaintiff arguing for
No. 08-1806        Dobrowski v. Jay Dee Contractors, Inc.                        Page 12


eligibility by estoppel must have some evidence permitting a finder of fact to conclude
that the employee relied on the erroneous representation of eligibility.

       The short of it is that the record contains no evidence that Dobrowski relied on
Jay Dee’s definite misrepresentation of his FMLA eligibility. Dobrowski therefore has
not raised a genuine dispute of a material fact as to his equitable estoppel argument, and
Jay Dee is entitled to judgment as a matter of law.

                                           III

       For the foregoing reasons, the decision of the district court granting summary
judgment to defendant Jay Dee Contractors is AFFIRMED.