                                                                          PUBLISH

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                                    __________                        U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                            JULY 06 2000
                                        No 99-11454
                                                                         THOMAS K. KAHN
                                        __________                            CLERK

                           D.C. Docket No. 97-02524-CV-JAL

MAURICE PARRIS,
                                                                          Plaintiff-Appellant,

                                            versus


THE MIAMI HERALD PUBLISHING COMPANY,
                                                                        Defendant-Appellee.

                                         __________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                                     __________
                                    (July 6, 2000)

Before TJOFLAT and BRIGHT*, Circuit Judges, and NESBITT**, District Judge.

BRIGHT, Circuit Judge.




    *
     Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
   **
     Honorable Lenore C. Nesbitt, District Judge for the Southern District of Florida, sitting by
designation.
      Maurice Parris appeals the district court’s grant of summary judgment to his

former employer, The Miami Herald Publishing Company (“Miami Herald” or

“Herald”) on both Parris’s federal claim under the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601, and on his state law claim for breach of the sick pay

policy pursuant to his employment contract. The Herald terminated Parris from

employment on July 31, 1996. The district court ruled in favor of the Miami Herald

on grounds that the Herald had slated Parris’s at-will job for termination prior to his

absence, as part of the company’s internal restructuring, and that the FMLA does not

“toll” a fully-documented and scheduled job termination. We reverse based on

numerous factual disputes relating to whether Parris would have continued working

beyond July 31, 1996, if he had not sustained serious injuries.

I.    BACKGROUND

      Appellant, Maurice Parris, worked as a Distribution Manager, supervising door-

to-door delivery personnel, in the Miami Herald’s “Alternate Delivery Department”

(“ADD”) at the time his cause of action arose. The Herald had promoted Parris to this

supervisory position on the basis of his exemplary work effort in more junior positions

with the Herald.

      In April 1996, the Miami Herald initiated a plan to reduce costs by restructuring

its departments and radically shrinking the size of the ADD in which Parris worked.


                                          -2-
The Miami Herald eliminated twelve of the eighteen positions for distribution

managers, and a total of sixteen positions from the original thirty-one in the ADD.

The record shows that, as part of its restructuring effort, the Herald attempted to shift

the displaced ADD employees to other departments rather than terminate them. The

Herald made efforts to facilitate continuous employment and informed staff that

severance packages would be available only as a last resort for those who did not

accept new jobs at the company.

      The Herald quickly set about determining which employees would remain in

the ADD after it completed the restructuring. The Herald selected, by April 15, the

ADD employees who would retain their positions after restructuring, and Parris was

not among them. By April 16, it became clear that Parris’s position would be

terminated and that he would need a different position in the company in order to stay.

Parris then began seeking other job opportunities within the Miami Herald. Parris’s

initial attempts to find other positions at the Herald failed. He interviewed for three

positions during April and May, but he was not selected for those positions. Nothing

in the record indicates that the Herald informed Parris of any particular date upon

which he would lose his job if he did not find an alternative position.

      Restructuring of the ADD actually began in May 1996 when the Herald started

consolidating positions. Most of the ADD employees found alternate positions by


                                           -3-
mid-May, although, at that time, there were still ADD employees searching for other

positions within the company. Nevertheless, the Herald stated that displaced ADD

employees would be given until the “end” of 1996 to find other positions.

      Then, on June 20, 1996, Parris’s home was burglarized. Parris was assaulted

brutally when he tried to protect himself and his family. He suffered severe facial

injuries, including a broken jaw, facial lacerations, and associated injuries. One of his

family members called the Miami Herald the evening of the attack to inform the

Herald that Parris was severely injured and in the hospital.

      Parris was hospitalized for surgery between June 20-22, 1996. Dr. Eisner, an

oral and maxillofacial specialist, performed surgery on Parris and wired his jaw shut

for four weeks to facilitate healing. Following surgery, his treatment was slow and

painful: His doctor had wired his jaw shut with both vertical and horizontal wires

from June 22 - July 10, during which time he could not speak or eat solid foods. Once

the doctor removed the vertical wires on July 10, 1996, he could theoretically open his

mouth to speak and eat solid food; however, his jaw muscles atrophied during this

period and required a period of healing before they could function normally. The

blow to Parris’s mouth broke and knocked out several teeth, leaving him with exposed

nerves in his mouth until his dentist, Dr. Gordon Chiu, could fit him with a dental

bridge. The horizontal wires remained in his jaw until July 31, 1996.


                                           -4-
      Clara Ortega, the Herald’s employee health nurse, administered FMLA benefits

for the Herald. On July 11, 1996, she mailed Parris the Herald’s standard “FMLA

Designation Form” and a cover letter advising him that he was eligible for FMLA

leave. However, she sent the correspondence to a former address, so the Post Office

returned it a few days later. On July 15, 1996, Ortega sent a second letter with a new

form to the correct address. Parris filled out the form and sent it back on July 24,

1996. Pursuant to requests from the Herald for the details of Parris’s injuries and

rehabilitation, Parris also asked Dr. Eisner, his surgeon, and Dr. Gordon Chiu, his

dentist, to outline the many treatments he received following his surgery on June 20,

1996, and Parris sent that information to Ortega as well.

      On July 31, 1996, the Herald terminated Parris. However, the Herald continued

to employ at least one other ADD worker situated similarly to Parris until 1997, even

though he had not located alternate employment within the company and would not

continue to work in the restructured ADD division.

      The district court determined that Parris’s job termination was “fully

documented and scheduled” for July 31, 1996 due to the restructuring effort, and

therefore, as an at-will employee, the Miami Herald could discharge him without

violating the FMLA. The district court observed that the FMLA cannot put an

employee in any better or worse position than he or she would have been in had the


                                         -5-
FMLA not been enacted. The district court quoted the following in support of its

ruling from Gunnell v. Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir.

1998):

      [A]n employee who requests leave or is on leave has no greater rights
      than an employee who remains at work. See 29 C.F.R. § 825.216(a).
      For this reason, an employee who requests FMLA leave would have no
      greater protection against his or her employment being terminated for
      reasons not related to his or her FMLA request than he or she did before
      submitting the request. Cf. 29 C.F.R. § 825.216(a) (noting that
      employee may be laid off or refused return to shift that has been
      eliminated, as long as the action would have been taken in the absence
      of FMLA leave)[.]

On this basis, the district court disposed of the case.

II.   DISCUSSION

      Summary judgment is appropriate only when “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” FED. R. CIV. P. 56(c). In assessing a summary judgment motion, we must

examine the evidence in the light most favorable to the nonmoving party. See Hilburn

v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).

      The FMLA provides eligible employees with “a total of 12 workweeks of leave

during any 12-month period . . . [b]ecause of a serious health condition that makes the

employee unable to perform the functions of the position of such employee.” 29

U.S.C. § 2612(a)(1)(D). To state a claim under the FMLA, a plaintiff must prove


                                          -6-
three elements at trial: (1) he availed himself of a protected right under the FMLA;

(2) he suffered an adverse employment decision; and (3) there is a causal connection

between the protected activity and the adverse employment decision. See Earl v.

Mervyns, Inc., 207 F.3e 1361, 1367 (11th Cir. 2000). On summary judgment,

however, the employee must raise only a material issue of fact, which he may generate

through reasonable inferences, regarding each element of his claim.1

       The central question before this court is whether Parris has raised a factual

dispute as to whether he qualified for a right to reinstatement under the FMLA, 29

U.S.C. §§ 2614(a)(1), 2615(a)(1), and if so, whether the Herald violated that right.

The district court summarily determined that the Herald planned and scheduled

Parris’s termination in advance of his decision to take FMLA leave. An employee has

no greater right to reinstatement or to other benefits and conditions of employment

than if the employee had been continuously employed with the company during the

FMLA leave period. See 29 C.F.R. § 825.216(a); O’Connor v. PCA Family Health

Plan, Inc., 200 F.3d 1349, 1354 (11th Cir. 2000). Because the district court found no




  1
    At trial, the Herald must prove that its decision was unrelated to Parris’s FMLA-protected sick
leave. Under the FMLA regulations, if an employer interferes with an employee’s right to
reinstatement under the FMLA, the employer bears the burden of proving that the employee would
have been laid off during the FMLA period for reasons unrelated to the employee’s condition, and
therefore is not entitled to restoration. See 29 C.F.R. § 825.216(a) (1999); O’Connor v. PCA Family
Health Plan, Inc., 200 F.3d 1349, 1354 (11th Cir. 2000).

                                               -7-
genuine dispute of fact about the Herald’s plan to terminate Parris, it held that the

FMLA does not provide Parris with a right to reinstatement.

       Here, we address only whether a genuine dispute exists over Parris’s

qualification for a right to reinstatement under the FMLA. Because the district court

did not address the parties’ other arguments regarding the first element of Parris’s

FMLA claim, we assume for purposes of this analysis that Parris survived summary

judgment on these issues.2

       Our review of the case discloses that there is a material, genuine dispute

regarding whether Parris had a right to reinstatement. Parris has presented sufficient

evidence to raise a genuine issue of material fact on two questions: (1) whether prior

to his attack on June 20, 1996 the Herald had slated Parris’s position as ADD

distribution manager for elimination on any specific date; and (2) whether the Herald




   2
    We remand for further consideration of Parris’s qualification for FMLA-protected leave. The
Herald argues in its brief that Parris had not engaged in a protected activity because he did not suffer
a “serious health condition” qualifying him for FMLA leave, did not properly notify the Herald of
his need for FMLA leave, and did not abide by the proper certification procedures under the FMLA
and the Herald sick pay policy. Under the FMLA, if an employee takes leave pursuant to §
2612(a)(1)(D), the employer may request “certification” issued by the health care provider of the
eligible employee. Certification is sufficient if it states the date on which the serious health
condition commenced, the probable duration of the condition, the appropriate medical facts within
the knowledge of the health care provider regarding the condition, and a statement that the employee
is unable to perform the functions of the position of the employee. 29 U.S.C. § 2613(a)-(b).
Furthermore, on remand, the district court should reconsider the applicability of the Herald’s sick
pay policy in light of this decision.

                                                  -8-
would have terminated his employment with the Herald on July 31, 1996 if Parris had

never been absent for the weeks he took sick leave.3

       The Herald takes the position that it scheduled Parris for discharge on July 31,

1996, prior to his injury. Therefore, it argues, the FMLA does not prevent the Herald

from terminating Parris when it did. Parris disputes the Herald’s claim and argues that

the Herald would have retained him in its employment until a later date in the year had

he not been hospitalized and subsequently absent from work for six weeks.

       We look to the evidence in the record to determine whether Parris has raised a

reasonable inference that the Herald would not have terminated Parris from

employment on July 31, 1996 had he not taken sick leave to recover from his injuries.

The record raises an inference that the Miami Herald would not have terminated Parris

prior to September 13, 1996, and as a factual matter, that the Herald would not have

terminated Parris prior to the end of the year, or longer, if he had worked continuously

for the company.

       First, Parris has revealed the self-contradictory nature of the Miami Herald’s

records of his “scheduled” termination. Parris has presented two conflicting Miami

Herald Personnel Action Reports. One report is dated July 31, 1996 and lists Parris’s

  3
    We adopt appellant’s distinction between his position as a manager in the ADD and his job with
the Miami Herald. Because his employment could continue uninterrupted if he transferred to a
different position, we do not view the termination of his position as equivalent to the termination
of his employment with the Herald.

                                               -9-
termination date as September 13, 1996. The other is dated November 26, 1996, and

it lists Parris’s position as terminating on September 15, 1996. The two personnel

action reports conflict with the Herald’s claim that it had fixed an exact date for

terminating Parris’s position prior to his absence. No report suggests that the Herald

would terminate Parris’s position on July 31, 1996.4 Nor does the record contain

personnel documents dated prior to July 31, 1996 that designate any specific date for

Parris’s termination.

       Second, Parris has demonstrated that no Herald employee ever informed him

that his job was scheduled for termination on July 31, 1996. None of Parris’s

supervisors at the Herald stated that, prior to his absence, he or she intended to

discharge Parris by July 31, 1996 if Parris had not located an alternate job by that

time. According to the record, no one at the Herald who might have been aware of the

date of Parris’s termination ever informed Parris of such a date.

       Finally, Parris has raised a dispute about the Herald’s “cut off” date for ADD

employees who did not locate alternate positions after their former ADD positions

were consolidated, and he has shown that at least one other similarly situated ADD



   4
    Although Dory Owens Trinka’s declaration states that a personnel action report was prepared
and signed by her “with a projected termination date of July 31, 1996,” there does not appear to be
such a document in the record. See Supplemental App. at Tab 32, ¶¶ 11, 14. See also Supplemental
App. at Tab 33, ¶ 3 (“At some point, Mr. Gonzalez [Parris’s supervisor] also told me that Mr.
Parris’s job would be ending on July 31 as part of a restructuring . . . .”).

                                               -10-
employee kept his job for at least six months longer than Parris.5 Parris has shown

that the Herald’s stated position was to retain displaced ADD employees until the end

of the year and to assist them in relocating within the company.6 Although not

guaranteeing alternate positions for those displaced, Carole Phipps, Manager of

Organizational Development and Training at the Herald, did testify by affidavit that

“[i]t wasn’t the purpose [of the restructuring] to lay off.” App. at Tab 17, p. 15. The

record reflects that the Herald was retaining employees for an indefinite period of time

while they searched for other positions within the company. It appears that the Herald

retained people in its employ after their old positions officially terminated. At least

one other ADD employee, Mr. Arthur Exul, transferred from the ADD to a new

position within the Herald on February 12, 1997, despite the fact that the Herald had

not slated him to remain within the newly restructured ADD.7

  5
    The record does not definitively establish the formal completion of the restructuring. The Herald
announced a “target date” for completion of July 31, 1996, however, Jose Gonzalez stated in his
declaration that the Herald expected the restructuring to finish in August 1996. Oddly, Arthur Exul,
an ADD manager who had to find alternate employment with the Herald or leave prior to completion
of the restructuring, remained in the ADD until February 12, 1997. This evidence may indicate that
the restructuring continued through 1997.
  6
    The Miami Herald – acting through Dory Owens Trinka and Donna Sasser, the head managers
of the ADD – assured the ADD employees that the Miami Herald would make every effort to
reassign all affected employees to other jobs within the Miami Herald. This statement was followed
by a written memorandum distributed to all ADD employees.
  7
  The record does not expressly state when Arthur Exul’s original position in the ADD terminated,
merely that he was not one of the six managers chosen to remain in ADD. He was transferred to
another “cost center” on June 3, 1996, the same day that Parris and other ADD employees who
would not remain in the ADD were transferred. The significance of this transfer, for purposes of

                                                -11-
III.   CONCLUSION

       On this record, we hold that a genuine dispute exists as to whether the Herald

had scheduled Parris’s termination prior to the time he took sick leave. A jury could

determine that in the circumstances, Parris, absent injuries, would have worked

beyond July 31, and therefore, his request for and entitlement to FMLA leave is

causally related to the decision of the Miami Herald to discharge him. Accordingly,

we REVERSE the dismissal on summary judgment and REMAND for further

proceedings consistent with this opinion.




determining whether Exul was employed in the same capacity as prior to the transfer, is not clear
from the record. Appellee’s brief states that the Herald’s transfer of both Exul and Parris, on June
3, 1996, was a phase of the restructuring process with no significance other than moving the
employees out of a defunct cost center.

                                               -12-
