                               Debra Lee O'CONNOR, Plaintiff-Appellant,

                                                     v.

                       PCA FAMILY HEALTH PLAN, INC., Defendant-Appellee.

                                          Nos. 97-5879, 98-5121.

                                      United States Court of Appeals,

                                             Eleventh Circuit.

                                               Jan. 18, 2000.

Appeals from the United States District Court for the Southern District of Florida. (No. 96-8502-Cv-WJZ),
William J. Zloch, Judge.

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*, Senior District Judge.

        KRAVITCH, Senior Circuit Judge:

        The primary issue these consolidated appeals present, and one of first impression in this circuit, is

the scope of employment protection afforded by the Family Medical and Leave Act of 1993 (the "FMLA"),

29 U.S.C. §§ 2601—54; specifically, we address the circumstances under which an employer may terminate

an employee on FMLA leave. Plaintiff-Appellant Debra O'Connor brought suit against PCA Family Health

Plan, Inc. ("PCA"), her former employer, claiming PCA violated the FMLA by terminating her employment

and attendant benefits while she was exercising her statutory right to FMLA leave. The district court found

no such violation. We agree and therefore AFFIRM.

                                            I. BACKGROUND

        In March 1995, O'Connor entered the employ of PCA as an Account Executive in PCA's Boca Raton,

Florida, office. O'Connor learned she was pregnant in August of that year and notified PCA of her intention

to take maternity leave for the birth and post-natal care of her child. Under the terms of PCA's employee

benefits policy, O'Connor had several leave options, including FMLA leave, sick and vacation leave,

short-term disability leave, and leave without pay. She discussed these options with her supervisors in PCA's



   *
   Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama, sitting by
designation.
Boca Raton office and requested a period of FMLA leave commencing April 22, 1996, and ending August

1, 1996. PCA's regional Human Resources Department (the "HRD") for the state of Florida, housed in PCA's

Miami office, instead approved a leave package commencing on April 18, 1996, the day after O'Connor's last

scheduled day of work,1 and ending on July 10, 1996. O'Connor's child was born on May 2.

        In June 1996, economic losses experienced during the previous two years compelled PCA to undergo

a reduction in force ("RIF"). PCA implemented the RIF in multiple phases, the first occurring on July 1,

1996, with the termination of 190 employees. PCA's HRD selected these employees from lists submitted by

the supervisors of various departments throughout PCA's Florida offices. O'Connor's name was one of those

submitted. While compiling the final roster of employees to be terminated in the first phase of the RIF, the

HRD reviewed the submitted lists for employees who, as of the date of the first phase of the RIF, would be

on leave. The HRD flagged two employees and removed them from the final roster, opting to reassess their

employment statuses after they returned from leave. The HRD, however, failed to flag O'Connor's name;

consequently, PCA terminated O'Connor as part of the first phase of its RIF.

        On or about July 11, 1996, O'Connor learned of her termination and contacted her former supervisor

in the Boca Raton office to inquire as to the reason. The supervisor notified the HRD that an employee on

leave had been terminated. Odalys Torres, who at the time was PCA's Director of Human Resources for

Florida, investigated and concluded that the HRD in fact should have removed O'Connor's name from the RIF

roster, as it did with the other two employees then on leave. On or about August 15, PCA orally offered to

reinstate O'Connor to her former position, but she declined.

        On July 23, 1996, O'Connor filed a complaint with the United States District Court for the Southern

District of Florida, alleging PCA violated the FMLA by terminating her while she was on FMLA leave (Case

No. 97-5879, the "FMLA suit"). On or about October 1, 1996, she also filed charges with the Equal



   1
   O'Connor's last scheduled day of work was April 17, 1996. She planned to take personal leave for the
work days between that date and April 22 to delay the commencement of her FMLA leave. The HRD,
however, designated April 18 as her first day of FMLA leave.

                                                     2
Employment Opportunity Commission (the "EEOC") and the Florida Commission on Human Relations,

alleging discrimination based on her gender, age, and pregnancy status in violation of Title VII of the Civil

Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e; the Age Discrimination in Employment

Act of 1967 (the "ADEA"), as amended, 29 U.S.C. §§ 621-634; and the Florida Civil Rights Act, Fla. Stat.

ch. 760.01-.854. The EEOC took no action on O'Connor's complaint, and on August 18, 1997, O'Connor

requested and received her Notice of Right to Sue.

             O'Connor's FMLA suit was adjudicated in a bench trial before the district court on August 25, 1997.

The district court announced its judgment on September 24, 1997, holding that PCA had not violated the

FMLA by terminating O'Connor while she was on FMLA leave.

             On November 17, 1997, O'Connor exercised her "right to sue" by filing a second suit against PCA,

alleging the various charges of discrimination included in her EEOC complaint (Case No. 98-5121, the

"employment discrimination suit"). PCA immediately moved for summary judgment on the ground that the

prior adjudication of O'Connor's FMLA suit has res judicata effect on all claims included in her second suit.

The district court agreed and granted PCA's motion for summary judgment on June 30, 1998.

                                                   II. ANALYSIS

A.           CASE NO. 97-5879: THE FMLA SUIT

             The FMLA provides that an "eligible employee"2 is entitled to a maximum of twelve weeks of leave3

during which her employment status is protected.4 The FMLA recognizes two types of claims for alleged


     2
   "The term 'eligible employee' means an employee who has been employed—(i) for at least 12 months by
the employer with respect to whom leave is requested under section 2612 of this title; and (ii) for at least
1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C. § 2611(2)(A)
(1999). The parties do not dispute O'Connor was an "eligible employee."
     3
    "[A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period
for one or more of the following: (A) Because of the birth of a son or daughter of the employee and in order
to care for such son or daughter...." Id. § 2612.
         4
    "[A]ny eligible employee who takes leave under section 2612 ... shall be entitled, on return from such
leave—(A) to be restored by the employer to the position of employment held by the employee when the
leave commenced; or (B) to be restored to an equivalent position...." Id. § 2614(a)(1).

                                                         3
violations of these provisions: interference claims,5 in which employers burden or outright deny substantive

statutory rights to which their employees are entitled, see 29 U.S.C. § 2615(a)(1) (1999), and retaliation

claims,6 in which employers discharge employees for exercising their FMLA right to leave, see id. §

2615(a)(2). O'Connor's complaint did not specifically characterize her FMLA claim as either, but rather

asserted some nonspecific violation of the FMLA. In its resolution of the claim, however, the district court

construed O'Connor's complaint to allege only a retaliatory discharge. O'Connor appeals this as error,

contending she also properly presented an interference claim to the district court.

          We must first resolve the character of the FMLA claim O'Connor submitted to the district court, a

question of law we review de novo. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, 3 F.3d 1472, 1475

(11th Cir.1993). After reviewing the record, we are satisfied O'Connor presented sufficient evidence at trial

in support of both cognizable causes of action. The testimony and documentary evidence elicited at trial

reveal O'Connor's attempt to establish that PCA denied her statutory right to reinstatement upon return from

leave, as provided by 29 U.S.C. § 2614(a)(1).7

          In opposition to our conclusion, PCA directs our attention to the Joint Pretrial Stipulation, in which

the parties framed O'Connor's allegation of improper termination as being "in response to her having

requested pregnancy leave."8 Although this phrasing may suggest O'Connor believed her termination was

retaliatory, we note that this statement was included in the Stipulation's Statement of the Case, rather than as

an Issue of Law for the Court; the actual issue presented to the district court was simply, "Whether PCA




      5
    "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided under this subchapter." Id. § 2615(a)(1).
      6
     "It shall be unlawful for any employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter." Id. § 2615(a)(2).
  7
   See R2 (Case No. 97-5879) at 84-135 (cross-examination of HRD Director Torres by Plaintiff's counsel).


   8
      See Joint Pretial Stipulation at 2, in R1 (Case No. 97-5879) at Tab 26.

                                                        4
violated the FMLA?"9 We are not satisfied that the language to which PCA points precluded O'Connor from

also arguing an interference claim at trial. We therefore conclude the district court erred in not considering

both types of FMLA claims in deciding whether PCA violated the statute. Moreover, because we find the

factual record to be well-developed, we choose to resolve the interference claim ourselves,10 rather than

remand the case to the district court.11

        The standard for establishing an interference claim under the FMLA is an issue of first impression

in this circuit, but other courts have addressed it. See Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-

14 (7th Cir.1997); see also Hubbard v. Blue Cross Blue Shield Assoc., 1 F.Supp.2d 867, 874-75

(N.D.Ill.1998) (applying Diaz ); Kaylor v. Fannin Regional Hosp., Inc., 946 F.Supp. 988, 996-97

(N.D.Ga.1996); cf. Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-60 (1st Cir.1998) (recognizing

interference claims and citing Diaz ). In Diaz, the Seventh Circuit held that if an employee proves by a

preponderance of the evidence she is entitled to the benefit she claims and that her employer interfered with

or denied that benefit, the employer violated the FMLA. See 131 F.3d at 713. O'Connor argues 29 U.S.C.

§ 2614(a)(1) provides that an employee returning from leave is entitled to reinstatement, yet PCA denied her




   9
    See id. at 3.
   10
    Although we find O'Connor presented both claims to the district court, she does not appeal the district
court's analysis of the retaliation claim, to which it applied the burden-shifting approach outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and common to
employment discrimination claims. She has therefore abandoned the issue. See Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989).
  11
    This court may decide this issue because we hold infra that even under this alternate theory of recovery,
PCA did not violate the FMLA, and thus affirm the district court's final judgment. See Parks v. City of
Warner Robins, 43 F.3d 609, 613 (11th Cir.1995) (holding this court may affirm a district court on any basis).
Furthermore, because this court may consider issues not even raised before the district court when they are
pure legal questions or the proper outcome is beyond doubt, cf. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th
Cir.1994) (stating the five exceptions to the general rule against considering such issues), disposing of such
an issue actually presented to but not addressed by the district court is certainly within our discretion.

                                                      5
that benefit by terminating her before her leave expired,12 thus proving her claim. Essentially, O'Connor,

relying on Diaz, asserts that all FMLA rights, including reinstatement, are absolute.

         Although we find no fault with the Seventh Circuit's interpretation of the FMLA, it is not completely

apposite to this case. The Diaz plaintiff requested but was denied his twelve weeks of leave for an alleged

medical condition as authorized by 29 U.S.C. § 2612(a)(1)(D), and the Seventh Circuit held the FMLA does

not permit employers to deny such a request, provided the employee follows proper procedure.13 See 131

F.3d at 713. Unlike the right to commence leave, an employer can deny the right to reinstatement in certain

circumstances, see Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1157 (7th Cir.1997) (holding an employer may

terminate an employee on FMLA leave as part of a RIF), because United States Department of Labor

regulation qualifies the right.

        An employee has no greater right to reinstatement or to other benefits and conditions of employment
        than if the employee had been continuously employed during the FMLA leave period. An employer
        must be able to show that an employee would not otherwise have been employed at the time
        reinstatement is requested in order to deny restoration to employment. For example:

        (1) If an employee is laid off during the course of taking FMLA leave ... the employer's responsibility
        to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the
        time the employee is laid off.... An employer would have the burden of proving that an employee
        would have been laid off during the FMLA leave period and, therefore, would not be entitled to
        restoration.




  12
    There is some confusion as to whether O'Connor was still on FMLA leave on the date of her termination.
Under the leave package approved by the HRD, O'Connor's FMLA leave expired on July 10,1996, twelve
weeks after her last day at work, April 17, 1996. The letter announcing O'Connor's termination was initially
dated July 1, 1996, but once HRD Director Torres learned O'Connor was on leave on July 1, she allegedly
post-dated the effective date of O'Connor's termination to reflect her last date of protected leave. PCA argues
that because O'Connor received the entire twelve weeks of leave to which she was entitled, she has no actual
FMLA claim. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275 (11th Cir.1999) (per curiam
). The district court, without explanation, found O'Connor was on FMLA leave when she was terminated.
The record testimony surrounding this issue is ambiguous at best, so we are unable to conclude the district
court clearly erred in finding this fact. Furthermore, the issue is mooted by our eventual holding that, even
assuming O'Connor was on FMLA leave when terminated, the termination did not violate the FMLA.
   13
     We note that the Seventh Circuit ultimately held that the plaintiff did not qualify for relief because he
had not complied with his employer's request for a second medical opinion, as is an employer's right under
the FMLA, 29 U.S.C. § 2613(c). See Diaz, 131 F.3d at 713-14.

                                                      6
29 C.F.R. § 825.216(a) (1999) (emphasis added). We hold that when an "eligible" employee who was on

FMLA leave alleges her employer denied her FMLA right to reinstatement, the employer has an opportunity

to demonstrate it would have discharged the employee even had she not been on FMLA leave. The district

court found that PCA slated O'Connor for termination as part of the first phase of its RIF, the legitimacy of

which O'Connor has never challenged. We have no reason to dispute that finding, see Massaro, 3 F.3d at

1475 (reviewing findings of fact for clear error), and therefore conclude PCA was justified in terminating

O'Connor even while she was on FMLA leave.

          O'Connor emphasizes PCA's election to remove two other employees on FMLA leave from the final

RIF roster while failing to do the same for her as evidence of PCA's awareness of a duty to refrain from

terminating all employees on FMLA leave. We find this argument to be without merit. PCA's voluntary

adoption of an employment policy designed to avoid legal entanglements (ironically unsuccessful) does not

expand the scope of legally enforceable employment protection beyond that which the statute affords.14 If

anything, PCA's oversight of O'Connor's name and failure to remove it from the final RIF roster only indicate

that O'Connor's FMLA status played no part in PCA's decision to discharge her.

          After fully considering O'Connor's interference claim, we agree with the district court's ultimate

conclusion that the termination of O'Connor during her period of FMLA leave, because it was part of a

legitimate RIF, did not violate the statute.

B.        CASE NO. 98-5121: THE EMPLOYMENT DISCRIMINATION SUIT

1.        Res Judicata




     14
    At trial, O'Connor brought to the district court's attention 29 C.F.R. § 825.700(a) (1999), which explains
"[a]n employer must observe any employment benefit program or plan that provides greater family or medical
rights to employees than the rights established by the FMLA." O'Connor argued PCA's removal of employees
on FMLA from the RIF roster was tantamount to such a "program or plan," requiring PCA to treat all
similarly situated employees equally. O'Connor did not reassert this argument on appeal, however, so we
deem it waived. See Greenbriar, 881 F.2d at 1573 n. 6.

                                                      7
         In its grant of summary judgment, the district court held O'Connor's FMLA suit had res judicata

effect on the discrimination claims brought in her second suit, thus barring those claims. We review this

conclusion of law de novo. See Israel Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir.1992).

         The Supreme Court has explained that following "a full and fair opportunity to litigate[, res judicata

] protects [a party's] adversaries from the expense and vexation attending multiple lawsuits, conserves judicial

resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions."

Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). Res judicata

thus precludes claims which a plaintiff actually raised or could have raised in a prior suit when (1) there is

a final judgment in a prior suit on the merits; (2) the decision in the prior suit is rendered by a court of

competent jurisdiction; (3) the parties in both suits are identical; and (4) both suits involve the same cause

of action. See Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir.1990). The first three

elements are obviously satisfied in this case and do not warrant discussion. As for the fourth element, in

Citibank, this court explained that " 'if a case arises out of the same nucleus of operative fact ... as a former

action, [then] the two cases are really the same "claim" or "cause of action" for purposes of res judicata.' "

Id. at 1503 (quoting Ruple v. City of Vermillion, 714 F.2d 860, 861 (8th Cir.1983)). Because O'Connor's

FMLA claim and her other discrimination claims all issue from a single event, namely, the termination of her

employment, we conclude res judicata bars O'Connor's second suit; the district court's grant of summary

judgment was proper.

        In an attempt to persuade us otherwise, O'Connor cites Pleming v. Universal-Rundle Corp., 142 F.3d

1354, 1357-59 (11th Cir.1998), in which this court held res judicata did not bar a plaintiff's second

discrimination claim in a separate suit, even though it was against the same employer and was known to the

plaintiff prior to the adjudication of her earlier suit. The cornerstone of Pleming 's holding, however, was that

the circumstances giving rise to the allegations of the second suit occurred after she filed her first suit; in

other words, the claims brought in each suit were premised on entirely different instances of alleged



                                                       8
discrimination. See id. O'Connor's reliance on Pleming is therefore misplaced. We iterate that in the instant

case, the nucleus of facts from which O'Connor's employment discrimination claims stem is identical to that

underlying her FMLA claim.

          O'Connor contends the procurement of her EEOC Notice of Right to Sue ("Notice"), which she

received after she filed her FMLA suit, rather than her termination, gave rise to her discrimination claims.

She argues that because she was unable to bring her discrimination claims prior to evaluation by the EEOC

during a statutory 180-day waiting period, see 42 U.S.C. § 2000e-5(f) (1994), her second suit involves "new

rights acquired," against which a previous judgment has no preclusive effect. See Pleming, 142 F.3d at 1357

(citing Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.1992) (quoting Los Angeles Branch,

NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir.1984))). Again, O'Connor's reading

of Pleming ignores the context of the decision. Because the claims brought in each of the plaintiff's suits were

premised on entirely different episodes of alleged discrimination, the Pleming court simply held that the

plaintiff was not required to join unrelated claims in a single suit and that the adjudication of one of those

claims did not preclude the other. O'Connor's claims, on the other hand, all relate to the termination of her

employment and should have been brought together.15 Contrary to O'Connor's implied suggestion, Pleming

did nothing to alter our usual approach to res judicata, which focuses on the identity of the factual

circumstances from which various claims or theories of recovery may arise. See Ragsdale v. Rubbermaid,

Inc., 193 F.3d 1235, 1240 (11th Cir.1999) (also interpreting Pleming to not alter our usual approach to res

judicata ). Accordingly, we agree with the district court that res judicata bars the claims brought in

O'Connor's employment discrimination suit.

2.        Attorney's Fees



     15
     O'Connor could have either delayed filing or continued her FMLA suit until she received her Notice.
Furthermore, O'Connor did not request her Notice until August 18, 1997, only a week before she adjudicated
her FMLA suit. She could have requested the Notice as early as April 1, 1997, the approximate date on which
the EEOC's 180-day waiting period expired and nearly five months prior to the first trial; O'Connor would
have had ample time to amend her initial complaint to include the additional claims.

                                                       9
        Following the district court's grant of summary judgment in the employment discrimination suit, PCA

moved for prevailing defendant attorney's fees pursuant to 42 U.S.C. § 1988, but the district court has yet to

rule on the motion. PCA, therefore, requests this court to rule on the appropriateness of an attorney's fees

award, but remand for a determination of the amount. Because the motion is still pending before the district

court, however, we do not address the issue.

                                             III. CONCLUSION

        The judgment of the district court in each case is hereby AFFIRMED.




                                                     10
