McArdle v. Town of Dracut/Dracut Public Schools , 732 F.3d 29 ( 2013 )

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
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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
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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,
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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
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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
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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."
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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
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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.
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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
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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."
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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
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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.
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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
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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.
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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
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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.
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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.
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