          United States Court of Appeals
                      For the First Circuit

No. 13-1044

                       RAYMOND C. MCARDLE,

                       Plaintiff, Appellant

                                v.

      TOWN OF DRACUT/DRACUT PUBLIC SCHOOLS, THERESA ROGERS,
               W. SPENCER MULLIN, DR. STACY SCOTT,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
              Torruella and Kayatta, Circuit Judges.




          Jeffrey R. Mazer, with whom Mazer Law Group, LLC, was on
brief, for appellant.
          Thomas A. Mullen, for appellees.



                         October 9, 2013
             KAYATTA,   Circuit   Judge.   Appellant   Raymond   McArdle

("McArdle") is a former teacher in the public schools of the town

of Dracut, Massachusetts.         He claims, among other things, that

Dracut improperly handled his request for leave under the Family

and Medical Leave Act, 29 U.S.C. § 2612 ("FMLA") and forced him to

resign in retaliation for seeking such leave.      The district court

granted summary judgment dismissing all of McArdle's claims, ruling

that he had not worked enough to be eligible for FMLA leave, and

otherwise finding his claims meritless. For the following reasons,

we affirm.

                              I. Background

             Because the district court dismissed McArdle's claims on

summary judgment before any factfinder could evaluate the competing

evidence and inferences, we will describe the facts giving rise to

this lawsuit in a light as favorable to McArdle as the record will

reasonably allow.       Colburn v. Parker Hannifin/Nichols Portland

Div., 429 F.3d 325, 327 (1st Cir. 2005).

             McArdle began working as a middle school English teacher

for Dracut in 1997.      In 2007, he entered divorce proceedings with

his wife and began drinking excessively.         Depression, anxiety,

foreclosure on his home, and personal bankruptcy followed. Reeling

from these personal crises, McArdle began to miss work. He went to

work at school only ten of twenty-one school days in September of

2008 and did not appear at all in October, November, or December of


                                    -2-
2008. After the winter break, his record improved temporarily. He

went to work fifteen out of seventeen days in January, fourteen out

of fifteen days in February, twenty out of twenty-one days in

March, twelve days out of sixteen in April, and eleven out of

twenty days in May.   He did not work at school at all in June, the

final month of the school year.    In total, he came to school for

only eighty-two days in the 2008-2009 school year.

          These absences exhausted the fifteen days of sick leave

and the two days of personal leave to which he was entitled in the

2008-2009 year.   He then exercised, after some disagreement with

his superintendent, a contractual right to use in the 2008-2009

school year his fifteen days of sick leave for the 2009-2010 year.

He also had fifty-two "deduct days" during which school was in

session but he did not work and was not paid.   Throughout the 2008-

2009 school year, McArdle provided cursory explanations for his

absences, supplying his principal with two notes that indicated

that he had a "medical condition" and was unable to work for

"medical reasons." He was disciplined--over his objection--for not

attending faculty meetings when he was absent from work.     He was

also disciplined for failing to leave lesson plans for a substitute

with the vice-principal, even though he had done so.

          On September 1st, the day the 2009-2010 school year

began, McArdle again did not appear at school.    Instead, that day

he called his principal, Defendant Theresa Rogers, and informed her


                                -3-
that, "at the very last minute," he had made the decision that it

would not be in anyone's interest for him to come back to school.

During the same conversation he also stated that he wanted to apply

for FMLA leave.   Rogers informed him that he would have to contact

the Dracut superintendent, Defendant W. Spencer Mullin.        When

McArdle called Mullin's office, he spoke with Mullin's secretary,

RayAnn L'Heureux, who agreed to send him "the appropriate paperwork

for the FMLA."     Two weeks later he received a United States

Department of Labor fact-sheet about the FMLA and a form to be

completed by his doctor. Included with these materials was a note,

which McArdle concedes he read, informing him that he had to notify

the superintendent in writing of any request for FMLA leave.   This

requirement was also stated clearly in Dracut's FMLA leave policy,

which was posted on its website.

          McArdle did not send any notice to the superintendent of

his desire to take FMLA leave.        Nor did he return a completed

medical certification.   McArdle testified that after he received

the materials from Ms. L'Heureux he decided that he must need some

additional form to fill out. He called the superintendent's office

and spoke with Ms. Curtis, another of Superintendent Mullins's

secretaries.   In his first conversation with her, he asked that

someone in the superintendent's office "send [him] what [he]

need[ed] to fill out."   McArdle called the superintendent's office

five to seven more times requesting to speak to Mullins himself,


                                -4-
but never received a call back.    McArdle decided that submitting

the medical certification was "optional" and did not do so.   He is

correct that the school district's FMLA policies, which he read,

state only that the district "may" require a medical certification

from an employee seeking FMLA leave, but he does not explain why he

did not believe that such a request had been made when L'Heureux

sent him the certification form.      And he completely ignores the

fact that he had previously agreed in writing (as a condition to

being allowed to return to work for Dracut in 2008) that he would

"provide a physician's statement whenever sick leave prevails for

five (5) consecutive school days."

          On September 28, 2009, Rogers sent a letter to McArdle

terminating him for abandoning his position "since we have not

received any written correspondence from you nor have you called

the substitute call-in service to alert the district that your

classes would be unattended."   McArdle promptly replied, pointing

out that the town was required to first give him notice of intent

to terminate his employment before actually firing him.   McArdle's

reply noted for the first time in writing his desire to take FMLA

leave, explained that he believed he had not yet been sent the

proper form to submit, and denied that there was any need to call

the substitute call-in service because the principal knew he was

out and had arranged for a long-term substitute.    He still failed

to provide any physician's statement as the town had plainly


                                -5-
required.    Rogers sent a second letter on October 5, this one

notifying McArdle of Dracut's intent to terminate (for the same

reasons) and giving him ten days to respond.         Nine days later,

McArdle spoke with Rogers by telephone and resigned his position

after Rogers told him that everything relating to his termination

would be removed from his record if he did so.

            McArdle filed this suit in 2011, alleging in Count I that

all defendants violated his rights under the FMLA.           Counts II

and   III   alleged   Massachusetts    state   law   tort   claims   of,

respectively, intentional infliction of emotional distress and

intentional interference with advantageous business relations.

Both counts were alleged against individual decision-makers in the

Dracut schools (defendants Theresa Rogers, W. Spencer Mullin, who

was the superintendent prior to and at the time of McArdle's

dismissal, and Stacy Scott, who assumed Mullins's position after

McArdle's termination).    After discovery, defendants successfully

moved for summary judgment on all of McArdle's claims.          He now

appeals.

                       II. Standard of Review

            "We review the district court's grant of summary judgment

de novo."    Ortiz-Bonilla v. Federación de Ajedrez de Puerto Rico,

Inc., ___ F.3d ___, 12-1022, 2013 WL 4457427 (1st Cir. Aug. 21,

2013).   "Summary judgment is appropriate when there is 'no genuine

issue of material fact, and the moving party is entitled to


                                 -6-
judgment as a matter of law.'"     Id. (quoting Kelley v. Corr. Med.

Servs., Inc., 707 F.3d 108, 115 (1st Cir.2013)).

                              III. Analysis

A.    McArdle's FMLA Claims

           The FMLA guarantees an eligible employee the right to

take twelve weeks of unpaid leave because of, among other things,

a serious medical condition that renders the employee unable to do

his job.   See 29 U.S.C. § 2612;1 Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81, 86 (2002).     The Act further makes it "unlawful

for any employer to interfere with, restrain, or deny the exercise

of or the attempt to exercise, any right provided [by the FMLA]."

29 U.S.C. § 2615(a)(1).

           McArdle claims that Dracut violated the FMLA both by

interfering with his attempt to seek permission to take FMLA leave,

and by terminating him because he attempted to avail himself of the

protections of the FMLA for the leave he took.             In this rather

unusual case, McArdle has not claimed that Dracut violated the FMLA

by refusing to grant him FMLA leave, or by firing him for taking

such leave.   This departure from the more customary path followed

by   terminated,   leave-taking   employees   might   be    explained   by



      1
       Section 2612(a)(1) provides, inter alia, that "an eligible
employee shall be entitled to a total of 12 workweeks of leave
during any 12-month period . . . (D) Because of a serious health
condition that makes the employee unable to perform the functions
of the position of such employee."


                                   -7-
McArdle's recognition that, as we explain below, he was not

eligible to take FMLA leave.   But McArdle does in fact argue that

he was eligible for FMLA leave.

          Be that as it may, absent exceptional circumstances not

present here, we endeavor to assess the claims a party makes,

rather than to ponder why he makes those claims and not others.

And, in the end, that assessment here will demonstrate that McArdle

had no cause for complaint of any type under the FMLA.

     1.   McArdle Was Not Eligible To Take FMLA Leave

          As a foundation on which he largely but not completely

erected his claims, McArdle argued below, and now argues on appeal,

that he was eligible for FMLA leave, or that the town should be

estopped from denying that he was eligible. We therefore begin our

analysis of the claims McArdle does make by explaining why the

district court correctly ruled, as a matter of law, that McArdle

was not eligible to take FMLA leave.

          To be eligible for FMLA leave, an employee must have "at

least 1,250 hours of service with [the employer] during the

previous 12-month period."   29 U.S.C.A. § 2611(2)(A).   The parties

presume that the phrase "hours of service" means hours actually

worked, and both the applicable regulations and case law support

this presumption. See, e.g., 29 C.F.R. § 825.110(c)(1); Plumley v.

S. Container, Inc., 303 F.3d 364, 372 (1st Cir. 2002).        Under

regulations promulgated by the Department of Labor, an employer of


                                  -8-
a full-time teacher who challenges the FMLA eligibility of that

teacher "must be able to clearly demonstrate . . . that . . . [the

teacher] did not work 1,250 hours."     29 C.F.R. § 825.110(c)(3).

           Dracut demonstrated that McArdle attended school for only

eighty-two days in the twelve months preceding September 1st, 2009.

McArdle nevertheless suggests that the number of days he worked is

a disputed question of material fact because the record contains a

letter from Dracut's superintendent to McArdle's counsel that

calculates that McArdle worked 975 hours, based on a determination

that he was paid for 130 days.   But the record demonstrates beyond

dispute that the mere fact that a teacher is paid for a day does

not mean that he worked that day.      McArdle, for example, took

personal days, sick days and a paid leave of absence as well as,

presumably, vacation days or paid holidays.      In any event, the

actual books and records of the Dracut Public Schools showed that

McArdle came to work on only 82 days, with an entry for each such

day.   McArdle offered no testimony that he was present at work on

any other days.

           Estoppel aside, that leaves one question: how many hours

did McArdle work?    He testified that, when he actually came to

school, he was typically in his classroom from 6:15 AM to 1:45 PM,

a total of 7.5 hours. The collective bargaining agreement to which

he is subject also specifies a 7.5 hour workday.    7.5 hours times

82 days equals 615 hours worked.


                                 -9-
          Of course, proving that McArdle was in school only 615

hours is not the same as proving that he worked only 615 hours.   As

McArdle plausibly testified, in addition to time spent at school,

he (like many teachers) sometimes worked at home "correct[ing]

writing journals . . . issue[ing] and sign[ing] writing papers,

term papers."     Moreover, some of that work may have been done on

days other than those when McArdle also went to school.   A busy and

conscientious teacher, for example, might grade papers or prepare

for the next day's classes on a weekend.

     Dracut, however, did not need to prove that McArdle worked

only 615 hours.    It's burden was only to clearly demonstrate that

McArdle worked less than 1250 hours. The gap between 615 hours and

1250 hours is so large that it is entirely implausible on this

record that McArdle worked anywhere close to 1250 hours. Cf.

Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 142-44

(2d Cir. 2012) (1247 hours assumed under CBA close enough to 1250

hours to create factual issue that other, take-home work pushed

total over 1250).      McArdle's own description of what he might

sometimes do at home falls far short of suggesting that a Dracut

public school teacher's work at home is so substantial as to exceed

his work at school.    McArdle, moreover, was not working at school

at all for two separate three month periods, each uninterrupted by

any activity that might have generated take-home work.      In sum,

McArdle has "failed to present sufficient evidence to create a


                                 -10-
genuine issue of fact as to the number of hours [he] actually

worked during the twelve-month period preceding [his] request for

leave."    Staunch v. Cont'l Airlines, Inc., 511 F.3d 625, 631 (6th

Cir. 2008).

     2.      McArdle Has Not Established That The Town's Handling Of
             His FMLA Leave Application Caused Him Any Harm

             Unable to establish that Dracut in any way interfered

with a right to take leave, McArdle is reduced to arguing that,

even if he was not eligible for FMLA leave, Dracut nevertheless

interfered      with     his   FMLA   rights      by   violating      29   C.F.R.

§ 825.300(b)(1), which provides that "[w]hen an employee requests

FMLA leave, or when the 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 . . . ."           It is not clear on the face of the notice

regulations whether they require notice of ineligibility to a

person    who   is     ineligible.    Nor    is   it   clear   that    McArdle's

communications to Dracut were sufficient to trigger an obligation

by Dracut to provide a "notice of eligibility" to McArdle when it

had already sent him the medical certification form and a written

notice that a written request was required to obtain FMLA leave.

             We need not decide these issues because, even if we were

to assume a violation of the notice requirements, Dracut would be

liable only for "compensation and benefits lost by reason of the

violation . . . or any other relief tailored to the harm suffered."

                                      -11-
29 C.F.R. § 825.300(e). McArdle points to nothing that he could or

would have done differently had Dracut told him in early September

that he was not eligible for FMLA leave.      To the contrary, the

undisputed record is that, without advanced notice, he failed to

show up for work.

          McArdle offers no evidence that he would have been able

to return to work had he known there was no FMLA leave for him.   He

claims that in the prior year, he always found a way to ensure that

his absences were authorized or permitted, asking us to infer that

he would have done so in the new school year as well if he knew

that he had to do so.   Speculation, however, does not suffice for

reasonable inference.   Even three years after the fact, McArdle

offers no explanation for how he would have secured authorization

for the leave he contends he had no choice but to take.   Such leave

would have been especially hard to obtain from a school that, by

his own claim, was plainly unenthusiastic about accommodating his

needs.

          In short, nothing was lost, nor was any harm suffered, by

reason of the alleged violations.     Therefore, even assuming that

Dracut should have sent McArdle a notice that he was ineligible for

FMLA leave, no remedy could or need be tailored for such a harmless

error.   McArdle's claim that the town should be estopped from

denying his ineligibility fails for this same reason, as he is only

entitled to estoppel if he "relied on [Dracut's] misrepresentations


                               -12-
to its detriment." Nagle v. Acton-Boxborough Reg'l Sch. Dist., 576

F.3d 1, 3 (1st Cir. 2009).

     3.   Dracut Did Not Unlawfully Retaliate Against McArdle

          In addition to granting workers important rights, the

FMLA also precludes employers from retaliating against employees

for exercising those rights.      Colburn v. Parker Hannafin/Nicholas

Portland Div., 429 F.3d 325, 330-32 (1st Cir. 2005); Hodgens v.

Gen. Dynamics Corp., 144 F.3d 151, 160-61 (1st Cir. 1998).              "To

make out a prima facie case of retaliation [McArdle] must show (1)

he availed himself of a protected right under the FMLA; (2) he was

adversely affected by an employment decision; (3) there is a causal

connection   between    the   employee's   protected   activity   and   the

employer's adverse employment action."        Id. at 161 (applying the

standard from McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), to FMLA cases).

          In the more typical case, an employee who is subject to

an adverse employment decision after or while taking FMLA leave

will claim that the taking of the leave was the cause of the

adverse decision.      See, e.g., Seeger v. Cincinnati Bell Tel. Co.,

LLC, 681 F.3d 274, 283-84 (6th Cir. 2012).       Alternatively, when an

employee takes no leave, but is subject to an adverse employment

decision after asking to take FMLA leave, the employee will claim

that the request was the cause of the adverse decision. See, e.g.,

Mickelson v. New York Life Ins. Co., 460 F.3d 1304 (10th Cir.


                                   -13-
2006). Here, by contrast, we have an unusual case in which McArdle

was fired while taking leave, but he does not argue that he was

fired for taking leave, nor could he successfully so argue because,

in his case, taking leave was not a "right protected under the

FMLA."

            McArdle is thus left with the rather contrived argument

that he was fired not for taking the unsanctioned leave he took,

but because he asked for FMLA leave.       This is another way of saying

that he was fired, not because he was absent, but because he asked

whether he had the right to be absent.       In support of this argument

McArdle points to what he calls the temporal proximity between his

oral request for leave and his receipt of a notice of intent to

terminate, followed by actual constructive termination when he

confirmed his request in writing. He also points to what he argues

are pretextual reasons given by the town for its decision.

Ultimately, he argues that inferences of improper motivation drawn

from   chronology   and   pretext   precluded    the   grant   of   summary

judgment.

            As an initial matter, it is not clear that one not

entitled to take FMLA leave "avails himself of a protected right"

when requesting to take such leave.        The case law is both split and

not fully developed regarding such an argument.        Compare Walker v.

Elmore Cnty. Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004)

(holding that eligibility is a prerequisite for a retaliation


                                    -14-
claim), with Johnson v. Dollar Gen., 880 F. Supp. 2d 967, 991 (N.D.

Iowa 2012) (criticizing Walker); see also Wilkins v. Packerware

Corp., 260 F. App'x 98, 102-103 (10th Cir. 2008) (surveying cases

and describing the issue as "contestable").

          We are not convinced that an employee who is ineligible

for FMLA leave can never bring a retaliation claim. There are many

reasons why an employee will not know until inquiring whether he is

eligible for any particular right available under the Act.      The

statute prohibits employer interference with both the exercise of

rights provided under the FMLA and "the attempt to exercise any

[such] right."   29 U.S.C. § 2615(a)(1).    There is no requirement

that the attempt be successful.   It would seem too, that firing an

employee for asking would also frustrate the aims of the Act even

if the inquiring employee turns out to be ineligible. Such an "ask

at your peril" approach could deter employees, including eligible

employees uncertain of the extent of their rights, from taking the

first step necessary to exercise their rights.

          In any event, in this case we need not decide whether an

ineligible employee may never bring a retaliation claim under the

FMLA if he is fired merely for asking if he is eligible.   Here, the

only reasonable reading of the record is that McArdle was not fired

for asking to take FMLA leave.     Rather, he was fired because the

town concluded that his renewed and indefinite absence, without

advance notice, allowed it to fire him.


                                 -15-
           The correctness of this conclusion is underscored by

imagining that McArdle had made no request at all for FMLA leave.

In such a scenario, the town's claim that he was abandoning his job

without effectively establishing a right to do so would have been

indisputably correct.    He would have been terminated, perhaps

sooner.    Alternatively, imagine that McArdle had asked for FMLA

leave while still showing up for work.    There is no evidence to

which he points that would support any inference that the town

would have still fired him, or even thought that it could fire him

under the terms of the collective bargaining agreement.   In short,

even assuming that he properly requested FMLA leave that request

could not have caused his termination.   His absence from work, on

the other hand, was fully sufficient to cause his termination. Cf.

Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 6 (1st Cir. 2012)

("'if the lawful reason alone would have sufficed to justify the

[action],' then the employee cannot prevail.") (quoting   McKennon

v. Nashville Banner Pub. Co., 513 U.S. 352, 359 (1995)).      This

conclusion "comports with the traditional tort-law principle that

if the wrongful act did not cause the injury, the wrongdoer is not

liable."   Tejada-Batista v. Morales, 424 F.3d 97, 101 (1st Cir.

2005).

           Based on the foregoing, no reasonable factfinder could

find that the request for leave played any role in causing the town

to fire McArdle.   Indeed, to all appearances, the request for the


                               -16-
leave may have delayed the termination, hence the town's desire (so

McArdle claims) to be able to contend that he was not properly

asking for leave.2

B.   McArdle's State Law Claims

           McArdle's     state    law     claims    against   the    individual

defendants are entirely without merit. The recklessness with which

McArdle has lodged and pursued damage claims, including punitive

damage claims, against individuals who did nothing wrong, is

highlighted by (but not limited to) his claim against Scott. Scott

became superintendent only after McArdle was terminated.               McArdle

made no factual allegations about her conduct except that, fourteen

months after his termination, she replied to correspondence from

his attorney with a letter taking the plainly correct position that

he was ineligible for FMLA leave.           McArdle's brief does not even

attempt   to   argue   that     Scott's   conduct    was   tortious,    yet   he

inexplicably appeals the district court's grant of summary judgment

in her favor on the state law claims.

           His   claim    for    intentional       infliction   of   emotional

distress against the remaining defendants fails even to get to

first base because Massachusetts workers' compensation law bars the



     2
       It is not apparent why McArdle claims that the town was
untruthful in expressing its view that he had not pursued in
writing a request for leave.     McArdle had agreed to provide a
doctor's note when taking leaves of five or more days and did not
do so despite receiving a medical certification form from the town
in September of 2009 when he expressed interest in FMLA leave.

                                     -17-
use of that tort by an employee (or former employee) against

coworkers or employers acting within the scope of their employment.

Mass. Gen. Laws Ann. ch. 152, § 24; Foley v. Polaroid Corp., 381

Mass. 545, 549-50 (1980). An employee's action is within the scope

of his employment when it "is of the kind he is employed to perform

. . .; if it occurs substantially within the authorized time and

space limits . . .; and if it is motivated, at least in part, by a

purpose to serve the employer . . . ."      Doe v. Purity Supreme,

Inc., 422 Mass. 563, 568 (1996) (internal quotation marks omitted).

McArdle points to no evidence that the individual defendants were

not motivated even in part by a desire to serve their employer,

Dracut, by terminating an employee who was not performing the work

for which he was being paid.

          Finally, McArdle's claim for intentional interference

with advantageous business relations fails because McArdle provided

no evidence of actual malice, which is required for an employee to

prevail against an employer on that tort.    Blackstone v. Cashman,

448 Mass. 255, 260 (2007).     Moreover, McArdle's only argument in

support of his appeal on this claim relies on the same theory as

his FMLA retaliation claim and so fails for the same reason that

claim does.

                          IV. Conclusion

          For the foregoing reasons the judgment of the district

court is affirmed.

          So ordered.

                                -18-
