                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1663
                                   ___________

Robert Slentz,                           *
                                         *
              Appellant,                 *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * Western District of Missouri.
City of Republic, Missouri;              *
Greg D. Chadwell, Individually and       *
in his official capacity as Interim      *
City Administrator,                      *
                                         *
              Appellee.                  *
                                    ___________

                             Submitted: November 17, 2005
                                Filed: May 12, 2006
                                 ___________

Before SMITH, HEANEY, and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      Robert Slentz sued the City of Republic, Missouri, and Interim City
Administrator Greg D. Chadwell alleging that the defendants violated his rights under
the Family and Medical Leave Act ("FMLA"). The district court1 granted the
defendants' motion for summary judgment. We affirm.


      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
                                     I. Background
       Robert Slentz, a full-time police officer for the City of Republic, Missouri,
injured his shoulder while off duty. Slentz took sick leave due to the injury and
eventually underwent corrective surgery on his shoulder. Following his surgery,
Slentz received a letter from the City designating his sick leave as FMLA leave based
upon the City's Personnel Policy. The letter also informed Slentz that, among other
things, he must submit a fitness-for-duty certificate from his physician prior to being
restored to employment.

        By a second letter, the City informed Slentz of the approaching expiration date
for his FMLA leave and reminded him that he would need to provide a fitness-for-
duty certificate at least one day prior to returning to work. The letter stated further
that if such a certificate were not provided, Slentz would be expected to resign at the
expiration of his FMLA leave. Unfortunately, Slentz's physician declined to certify
Slentz as fit for duty until he had recuperated—several weeks after the expiration of
his leave. Accordingly, Slentz submitted his letter of resignation.

       Slentz sued, alleging that the defendants wrongfully interfered with his rights
under the FMLA. The district court granted the defendants' summary judgment
motion. The court held that it was permissible to run sick leave and FMLA leave
concurrently, that Slentz was given proper notice, and that the defendants did not
otherwise wrongfully interfere with Slentz's exercise of FMLA leave. Finding no
error, we affirm.

                                    II. Discussion
                                A. Concurrent Leave
       Slentz contends that the City violated his FMLA rights by extending him only
twelve weeks of leave despite his having more than twelve weeks of accrued sick
leave. We disagree. The FMLA provides that an "eligible employee"—e.g., one with
a "serious health condition that makes the employee unable to perform the functions

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of the position of such employee"—"shall be entitled to a total of 12 workweeks of
leave during any 12-month period." 29 U.S.C. § 2612 (a)(1). The Act grants an
employer the power to require an employee to substitute any accrued sick leave for
leave provided under the FMLA. § 2612 (d)(2)(B). An employer may permit an
employee to use FMLA leave and sick leave sequentially or may require that the two
run concurrently. Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239
F.3d 1199, 1205 (11th Cir. 2001); see 29 C.F.R. § 825.207(f) ("If neither the
employee nor the employer elects to substitute paid leave for unpaid FMLA leave . . .
the employee will remain entitled to all the paid leave which is earned or accrued
under the terms of the employer's plan.").

       In this case, the City elected to run Slentz's FMLA leave concurrently with his
accrued sick leave2 as authorized under the FMLA. Id. A contrary result "would
unduly and unfairly burden employers." Strickland, 239 F.3d at 1206. "[T]he FMLA
was intended only to be a statute that provided a minimum labor standard; an
assurance that employers would provide employees with twelve weeks of leave every
year." Ragsdale v. Wolverine World Wide, Inc., 218 F.3d 933, 939 (8th Cir. 2000),
aff'd 535 U.S. 81 (2002). "Under the FMLA, twelve weeks of leave is both the
minimum the employer must provide and the maximum that the statute requires."
Ragsdale, 218 F.3d at 938; accord Strickland, 239 F.3d at 1206 ("To balance the
needs of employers and sick employees, Congress intended that the FMLA provide
employees with a minimum entitlement of 12 weeks of leave, while protecting
employers against employees tacking their FMLA entitlement on to any paid leave



      2
     Section 12.5 of the City of Republic Personnel Policy, entitled "Sick and
Emergency Leave," states as follows:

      "In all cases where applicable, sick/emergency leave will be subject to
      and designated by the City of Republic as FMLA leave and counted
      against an eligible employee's FMLA leave entitlement."

                                         -3-
benefit offered by the employer."). Consequently, we affirm the district court and
hold that there was no violation of Slentz's rights under the FMLA.

                                      B. Estoppel
        Slentz also argues that the City's representations to him in its initial notice
letter estops the City from claiming that he was limited to twelve total weeks of leave.
The letter, in relevant part, read:

      Family Medical Leave will begin on January 30, 2003, and is expected
      to continue until you are released from your doctor's care.

      Except as explained below, you have a right under the FMLA for up to
      twelve weeks of unpaid leave in a twelve month period. . . .

Pointing to the first sentence above, Slentz asserts that (1) the City knew when it sent
the letter that Slentz was expected to be off work until approximately May 17, 2003;
and (2) that he had accrued unused sick and vacation leave that would have covered
him beyond May 17, 2003.3 Slentz contends that his reliance on this sentence presents
a genuine issue of material fact, making the grant of summary judgment improper.
However, the City correctly points out in its brief, as did the district court in its
decision, that the very next sentence of that letter undermines Slentz's argument
because it unambiguously states that Slentz was entitled to a maximum of twelve
weeks of FMLA leave.

       For legal support, Slentz cites Duty v. Norton-Alcoa Proppants, 293 F.3d 481,
493 (8th Cir. 2002). However Duty is distinguishable because it dealt with an
employer's letter that informed the employee that his entire 34-week sick leave
qualified under the FMLA. In Duty, this court held that the district court did not abuse
its discretion in applying equitable estoppel to prevent an employer from claiming

      3
       Slentz's twelve weeks of leave expired on April 24, 2003.

                                          -4-
that the employee's leave was confined to the twelve weeks actually afforded by the
FMLA. Id. at 494. The court reasoned that the letter explicitly guaranteed the
employee 34 weeks of leave and that the facts indicated that the employee had relied
on this representation. Id. By contrast, the initial letter to Slentz did not explicitly
guarantee him a specific amount of leave or leave until a specific date but instead
assured him twelve weeks of FMLA leave. In addition, Slentz could not have relied
on the City's letter in electing surgery because his shoulder surgery was complete
when he received the letter. Therefore, we hold that the City was not estopped from
limiting Slentz to twelve weeks of leave by its notice letter.

                                  C. Record Keeping
       Slentz next posits that summary judgment was improper because the City has
not given Slentz records required by 29 C.F.R. § 825.500. Slentz contends that the
failure to give him these records creates a genuine issue of material fact as to whether
his leave was designated and counted as FMLA leave. This argument fails for two
reasons. First, § 825.500 only requires the submission of records when specifically
requested by a Department of Labor official. § 825.500 (a) ("These regulations
establish no requirement for the submission of any records unless specifically
requested by a Departmental official."). Second, the City's initial letter clearly
informed Slentz that the City considered the leave to be FMLA leave. 29 C.F.R. §
825.208 (a) (stating that an employer bears the responsibility to "designate leave, paid
or unpaid, as FMLA-qualifying, and to give notice of the designation to the
employee. . . ."). In sum, Slentz's record keeping argument lacks merit.

      We hold that the City was permitted to run Slentz's sick leave concurrent with
his FMLA leave, that the City was not estopped by its February letter, and that the
City was not required to submit any records to Slentz pursuant to § 825.500.
Therefore, we affirm the district court's grant of summary judgment.




                                          -5-
HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. The majority disregards both the plain language and the
plain purpose of the FMLA in holding that the City of Republic did not violate Robert
Slentz’s rights under the statute.

        “Our starting point in interpreting a statute is always the language of the statute
itself.” United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997); see also Hennepin
County Med. Ctr. v. Shalala, 81 F.3d 743, 748 (8th Cir. 1996). Twenty-nine U.S.C.
§ 2614(a)(2) states in clear, unequivocal language that “[t]he taking of leave under
section 2612 of this title [FMLA] shall not result in the loss of any employment
benefit accrued prior to the date on which the leave commenced.” The statute further
states that, “[n]othing in this Act . . . shall be construed to diminish the obligation of
an employer to comply with a collective bargaining agreement or any employment
benefit program or plan that provides greater family or medical leave rights to
employees than the rights established under this Act or any amendment made by this
Act.” 29 U.S.C. § 2652(a).

       The canons of statutory construction also state that “‘it is well settled that, in
interpreting a statute, the court will not look merely to a particular clause in which
general words may be used, but will take in connection with it the whole statute . . .
and the objects and policy of the law . . . .’” Bob Jones Univ. v. United States, 461
U.S. 574, 586 (1983) (quoting Brown v. Duchesne, 19 How. 183, 194 (1857)
(emphasis added in Bob Jones)). The FMLA therefore must be analyzed and
construed against the background of the Congressional purposes of the Act.

     The final Senate report on section 2614(a)(2) “makes explicit that an employer
may not deprive an employee who takes leave of benefits accrued before the date on
which the leave commenced.” S. Rep. No. 103-3, at 32 (1993). The House of
Representatives echoed the Senate’s intent concerning section 2614(a)(2). H.R. Rep.

                                           -6-
No. 103-8(I), at 42 (1993). In a related report, the House states, “[f]amily and
medical leave are in addition to any annual leave, sick leave, or other leave . . .
otherwise available to the employee.” H.R. Rep. No. 103-8(II), at 9 (1993).

      The Act’s legislative history clearly states Congress’s intent behind the FMLA.
The House of Representatives explained that “[a]n employer is required to continue
any pre-existing health benefit coverage during the leave period, and at the
conclusion of leave, to reinstate the employee to the same or an equivalent position.”
H.R. Rep. No. 103-8(I), at 16 (1993). The Senate’s intent was just as plain: “[t]he
taking of leave may not deprive the employee of any benefit accrued before the leave,
nor does it entitle the employee to any right or benefit other than that to which the
employee would have been entitled had the employee not taken the leave.” S. Rep.
No. 103-3, at 3 (1993).

      The majority correctly notes the congressional intent was to balance the
concerns of both employers and employees. Employees are entitled to a minimum of
12 weeks of leave, but are prevented from tacking their FMLA entitlement to the paid
leave benefits offered by the employer. See 29 U.S.C. § 2612(d)(2)(B); Ragsdale v.
Wolverine World Wide, Inc., 218 F.3d 933, 939 (8th Cir. 2000), aff’d 535 U.S. 81
(2002) (holding that the FMLA was intended to provide a minimum labor standard,
assuring that employers would provide employees with 12 weeks of leave each year).

       However, the majority ignores the plain language of the statute, which indicates
that the FMLA cannot be used to deny Slentz’s benefits that he earned prior to his
FMLA leave. The majority additionally suggests that Slentz was attempting to
improperly tack on FMLA leave to sick leave he had earned as part of the collective
bargaining agreement that Republic negotiated with Slentz’s union. I do not agree.
Slentz has conceded that his 12 weeks of FMLA leave ran concurrently with the first
480 hours, or 12 weeks, of his earned sick leave.



                                         -7-
       Slentz’s action is distinguishable from Ragsdale and Strickland v. Water Works
& Sewer Board, 239 F.3d 1199 (11th Cir. 2001). In Ragsdale, the plaintiff utilized
all of her available leave time, after which she requested further leave under the
FMLA. 218 F.3d at 935. This was a classic case of tacking, and, it is agreed, one that
is prohibited under the FMLA. Id. at 940. The majority errs in applying Ragsdale
to Slentz’s claim because Slentz did not ask his employer to tack on his earned sick
leave to his FMLA leave. Instead, he asked Republic to allow his sick leave and
FMLA leave to run concurrently, holding Republic accountable under the FMLA Act
for the remaining sick leave that he was entitled to under his collective bargaining
agreement. As such, Slentz’s request that Republic honor its commitment to provide
him the rest of his earned sick leave conforms to the plain language of sections
2614(a)(2) and 2652(a), which required Republic to provide the benefits that had
accrued prior to Slentz’s FMLA leave, and to ensure benefits that went above and
beyond those provided by the FMLA.

       In Strickland, the dispute centered on whether the plaintiff was entitled to take
FMLA leave in addition to the paid leave available under his employer’s sick leave
policy. 239 F.3d at 1201-02. The court held that the FMLA permits employers to
provide the additional weeks necessary to reach the 12 work weeks of leave that is
required in 29 U.S.C. § 2612(d)(1). Strickland, 239 F.3d at 1205. Strickland
therefore allows the FMLA leave to run concurrently with paid sick leave so that an
employer who offers sick leave benefits that are below the 12-week minimum
requirement of the FMLA can attain the minimum requirement. Id. at 1205 n.5,
1206. It is within this context, a context that does not offer leave benefits greater than
those provided for in the FMLA, that Strickland guarantees the employee a minimum
of 12 weeks FMLA leave while also protecting the employer from having to provide
more leave than was negotiated between it and the employee. Id. at 1206.

      The majority opinion misapplies Strickland. Slentz has not requested FMLA
leave to reach the 12-week minimum of leave; rather, Slentz asks that his FMLA

                                           -8-
leave run concurrently with his sick leave, requiring Republic to honor its
commitment to the 200-plus hours of sick leave that Slentz is entitled to. By applying
Strickland outside of its context, the majority shields the employer from complying
with its contractual commitments, and bypasses the express intent of the FMLA to
safeguard agreements that provide benefits that are greater than those provided for
by the FMLA.

       The majority opines that the FMLA is not only a minimum labor standard, but
also a maximum one. This may be correct absent a collective bargaining agreement
that does not provide additional leave rights. But when greater medical or leave
rights are bargained for, Congress clearly stated that the FMLA could not be used to
erase those rights. See 29 U.S.C. §§ 2614(a)(2), 2652(a). This, however, is precisely
what Republic did. It used the FMLA to erase the benefits that Slentz had remaining
after his FMLA leave, in direct violation of section 2614(a)(2). By refusing to
enforce the clear legislative language, the majority allows Republic to use the FMLA
to abrogate Slentz’s existing benefits.

       The majority’s decision disregards the congressional purpose behind the
FMLA. While it rightly attempts to balance employee and employer concerns, it
wrongly excludes from its interpretation of the FMLA the congressional intent to
protect Slentz’s rights to the 282 hours of sick leave he had remaining after his
FMLA leave expired. Consequently, Republic is allowed to use the FMLA as a knife
to whittle away the benefit plan it provided its employee. I would reverse the grant
of summary judgment and remand to the district court with instructions to enter an
order reinstating Slentz to his former position with equivalent pay, benefits, status,
and the other terms and conditions of his employment.
                       ______________________________




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