                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 98-2490
                                  ___________


Jayson Sepe,                            *
                                        *
            Appellant,                  *
                                        *   Appeal from the United States
      v.                                *   District Court for the
                                        *   Eastern District of Missouri.
McDonnell Douglas Corporation,          *
                                        *
            Appellee.                   *

                                  ___________

                            Submitted: January 15, 1999

                                 Filed: June 7, 1999
                                  ___________

Befor e RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and TUNHEIM,2
       District Judge.
                            ___________




      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
      2
        Th e HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota, sitting by designation.
WOLLMAN, Chief Judge.

       Jayson Sepe appeals the district court’s3 adverse grant of summary judgment on
his claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654,
against his former employer, McDonnell Douglas Corporation. We affirm.

                                         I.

       Sepe was hired by McDonnell Douglas in 1984 as a sheet metal riveter and was
later promoted to the position of builder. Both positions were union positions, and
Sepe was a member of the International Association of Machinists and Aerospace
Workers, District Lodge 837. Sepe was continuously employed by McDonnell
Douglas until his termination in August, 1995, except for a one year period in 1991,
when he was temporarily laid off as a result of a reduction in force.

       During his lay-off in 1991, Sepe and his wife started an excavating business
called J&K Excavating and Bobcat Services (J&K). Sepe’s wife was the president of
the business and handled the day-to-day affairs. Sepe assisted her when he was not
working at McDonnell Douglas.

      McDonnell Douglas did not prohibit its employees from working a second job,
and Sepe’s supervisors knew of his work at J&K. McDonnell Douglas did , however,
prohibit its employees from working on another job while on leave from the company.
McDonnell Douglas’s general operating procedures state:

      Employees accepting other employment or engaging in self-employment
      while on authorized leave of absence will be terminated by the Company



      3
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.

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      unless written authorization has been granted by the Manager-Employee
      Records prior to commencement of the [leave of absence].

Appellee’s Appx. at 21. In addition, the collective bargaining agreement (CBA), which
applies to all union employees, prohibited Sepe from engaging in other employment
while on leave from McDonnell Douglas. Specifically, Article VII, Section 7 of the
CBA provides:

      An employee accepting other employment or engaged in business for
      himself while on leave of absence shall be discharged by the Company
      unless the Union and the Company have jointly, prior to the
      commencement of such leave of absence, agreed in writing that it could
      be done.

Appellee’s Appx. at 17-18.

      In May 1995, Sepe requested and was granted a twelve-week leave of absence
from McDonnell Douglas in connection with the birth of his daughter. Sepe had taken
medical leave from June 14, 1994, to December 19, 1994, and from March 13, 1995,
to March 27, 1995. As a result, Sepe had worked only 822 hours during the previous
twelve months.

       McDonnell Douglas officials received notice in May 1995 that Sepe was
working at J&K while on leave. A McDonnell Douglas investigation team
subsequently videotaped Sepe working at J&K during his normally scheduled hours at
McDonnell Douglas. When Sepe returned to work in August 1995, he was terminated
for violating the terms and conditions of the CBA.

       Sepe filed this action against McDonnell Douglas, alleging a violation of his
rights under the FMLA. The district court found that Sepe was not an “eligible”
employee for purposes of the FMLA because he had not worked the minimum number


                                         -3-
of hours required by the statute. The district court also found that Sepe was fired for
violating the terms of the CBA and not in retaliation for exercising his rights under the
FMLA.

                                           II.

       We will affirm a grant of summary judgment if the evidence, viewed in the light
most favorable to the nonmoving party, establishes that no genuine question of material
fact exists and that the moving party is entitled to judgment as a matter of law. See
Montandon v. Farmland Indus., Inc., 116 F.3d 355, 357 (8th Cir. 1997); Bashara v.
Black Hills Corp., 26 F.3d 820, 823 (8th Cir.1994); see also Fed. R. Civ. P. 56.

       The FMLA grants eligible employees up to twelve weeks of leave during any
twelve-month period for enumerated circumstances, including “the birth of a son or
daughter of the employee.” 29 U.S.C. § 2612(a)(1)(A). See Moore v. Payless Shoe
Source, Inc., 139 F.3d 1210, 1213 (8th Cir. 1998) (discussing the FMLA). An eligible
employee is one who has been employed “for at least 12 months by the employer” and
provided “at least 1250 hours of service during the previous 12-month period.” 29
U.S.C. § 2611(2)(A)(i)-(ii). Because Sepe worked only 822 hours during the year
preceding his request for leave, he does not qualify as an “eligible employee” and
therefore is not entitled to FMLA protection.

       Despite Sepe’s ineligibility under the statute, he argues that McDonnell Douglas
is estopped from challenging his eligibility by operation of 29 C.F.R. § 825.110(d),
which states:

      If an employee notifies the employer of need for FMLA leave before the
      employee meets these eligibility criteria, the employer must either confirm
      the employee’s eligibility based upon a projection that the employee will
      be eligible on the date leave would commence or must advise the
      employee when the eligibility requirement is met. If the employer

                                          -4-
      confirms eligibility at the time the notice for leave is received, the
      employer may not subsequently challenge the employee’s eligibility.

29 C.F.R. § 825.110(d). Sepe argues that McDonnell Douglas is estopped from
challenging his eligibility because it approved his request for leave and subsequently
failed to notify him of his ineligibility under the FMLA.

        We need not grapple with the question whether the regulation in question grants
rights greater than those conferred by the FMLA, for we agree with the district court
that Sepe was fired because he had violated the terms of the CBA and not in retaliation
for having exercised any rights under the FMLA. Sepe does not dispute that he
engaged in “other employment” by working at J&K while on leave. Thus, McDonnell
Douglas was within its rights -- indeed, was required to under the terms of the CBA --
to fire Sepe after he engaged in such employment without written permission to do so.

      The judgment is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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