*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30539

Summary Calendar

_____________________

MARION BECKENDORF,

Plaintiff-Appellant,

versus

SCHWEGMANN GIANT SUPER MARKETS,

INCORPORATED,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

USDC No. 95-CV-3822-K

_________________________________________________________________

December 18, 1997

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff Marion Beckendorf appeals from a summary judgment

dismissing her claims for violation of the Family and Medical Leave

Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq., and for

retaliation prohibited by Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. Because we find no error, we

affirm the district court’s award of summary judgment.

I
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Defendant Schwegmann Giant Super Markets, Inc. (“Schwegmann”)

employed Beckendorf as an Accounts Payable Audit Supervisor in

April 1989. Beckendorf supervised one employee and was herself

supervised by Robert Oertling. On July 28, 1994, Beckendorf

suffered a severe anxiety attack. The following day, she went to

see her personal physician, Dr. Scott Acosta, who diagnosed her as

suffering from severe hypertension and anxiety. Dr. Acosta

considered her malady a short-term disability and recommended that

she not return to work at that time. Schwegmann granted her a

leave of absence pursuant to its leave of absence policy and in

accordance with the FMLA.

Throughout Beckendorf’s period of disability, Dr. Acosta

continued to see and treat her. He also filled out physician’s

statements on August 10, October 5, and November 15, 1994, noting

each time that Beckendorf was totally disabled with respect to her

regular occupation. Dr. Acosta did not release her to return to

her previous job without restriction until December 6, 1994.

Beckendorf contends that she contacted Schwegmann in late

September and October 1994 and inquired about returning to work.

According to her, Schwegmann told her she would have to wait until

Mr. Lee Janies, Schwegmann’s Human Resources Director, returned

from his own medical leave of absence before her concerns could be

addressed. Following the expiration of Beckendorf’s rights under
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the FMLA, Schwegmann decided not to reinstate her to her former

position because of continuing concerns over her health and her

history of conflict with Mr. Oertling and others in the department.

Beckendorf met with Mr. Janies in December to discuss other

alternatives for her within Schwegmann’s employ. Mr. Janies

mentioned the possibility of a job in shipping and receiving which

required training and testing, paid less and involved no

supervisory responsibilities. He did not offer her the job,

however, and she did not return to work for Schwegmann.

Schwegmann’s established leave policy set out that any employee who

had not returned to work upon the expiration of the maximum leave

available under the FMLA would be fired. An exception existed for

those employees eligible under the company policy to receive six

months continued medical coverage. Such employees had up to six

months to return to work, but any employee who had not returned

after that time would be fired. Beckendorf was eligible for

continued coverage but failed to return to work within the

requisite time period. She was fired on January 29, 1994.

II

We review a district court’s grant of summary judgment de

novo, applying the same standard as would the district court.

Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559

(5th Cir. 1997); Estate of Bonner v. United States, 84 F.3d 196
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(5th Cir. 1996). Summary judgment is proper where the pleadings

and summary judgment evidence present no genuine issue of material

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

law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 106 S.Ct. 2548,

2552 (1986). A factual dispute will preclude an award of summary

judgment if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party. Anderson v. Liberty

Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). When ruling on a motion

for summary judgment, the inferences to be reasonably drawn from

the underlying facts in the record must be viewed in the light most

favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith

Radio, 106 S.Ct. 1348, 1356 (1986). The court may not weigh the

evidence nor make credibility determinations. Anderson, 106 S.Ct.

at 2511.

III

The evidence is undisputed that Dr. Acosta did not release

Beckendorf to return to her position with Schwegmann until

December 6, 1994--well after the expiration of the 12 weeks of

leave provided by the FMLA. Prior to that time, Dr. Acosta

certified that Beckendorf was totally disabled from returning to

her former position. Relying on these undisputed facts, the FMLA

and certain implementing regulations, the district court determined

that Beckendorf’s FMLA claim must fail. The court similarly found
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Beckendorf’s summary judgment evidence insufficient to defeat

Schwegmann’s properly supported motion with respect to her

retaliation claim. The district court granted Schwegmann’s motion

for summary judgment and dismissed Beckendorf’s claims. Beckendorf

now appeals.
1In granting Schwegmann’s motion, the district court relied on

final regulation 29 C.F.R. § 825.214(b) which states:

If the employee is unable to perform an essential

function of the position because of a physical or mental

condition, including the continuation of a serious health

condition, the employee has no right to restoration to

another position under the FMLA.

Schwegmann cites to this regulation in its brief as support

for its arguments that the district court properly granted its

summary judgment motion. The quoted regulatory language is from

the final regulations released by the Secretary of Labor that

became effective April 6, 1995. The Family and Medical Leave Act

of 1993, 60 Fed.Reg. 2180, 2180 (1995), as amended 60 Fed.Reg.

6658, 6658 (1995). Because Schwegmann terminated Beckendorf’s

employment on January 29, 1995, before the release of the final

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IV

One of the findings that prompted Congress to enact the FMLA

was its belief that “there is inadequate job security for employees

who have serious health conditions that prevent them from working

for temporary periods.” 29 U.S.C. § 2601(a)(4). In relevant part,

the FMLA provides that:

. . . an 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:

. . . .

(D) Because 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). When any eligible employee returns from

leave taken pursuant to the FMLA, the employer must restore the

employee to her previous position or an equivalent position. Id.

§ 2614(a)(1).1
regulations, the interim regulations govern this leave dispute.

Manuel v. Westlake Polymers Corp., 66 F.3d 758, 761 n.2 (5th Cir.

1995). Interim regulation § 825.214(b) provides:

Ordinarily an employee will be restored to the same

position the employee held prior to FMLA leave, with the

same pay and benefits, if the position remains available.

However, an employee has no right to return to the same

position.

Neither party addresses this issue on appeal. In her response

to Schwegmann’s motion for summary judgment and in her appellate

brief, Beckendorf cites to a provision of the Code of Federal

Regulations in effect in 1994. She does not, however, cite as

error the district court’s reliance on the final regulations. In

any event, application of the relevant interim regulations does not

mandate a result different from that reached by the district court.

Unless specifically designated as a final regulation, the

regulations referenced in this opinion are those that were in

effect in 1994.

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A

Beckendorf contends that Schwegmann’s failure to reinstate her

to her former position violated the FMLA. Beckendorf began her

leave of absence on July 29, 1994. Her 12-week window under the

FMLA thus closed on October 21, 1994. Dr. Acosta released

Beckendorf to return to her former position on December 6, 1994--

more than six weeks after the 12-week deadline. He did not release

her for any other position until November 1, 1994--almost two weeks

after the deadline. Under either scenario, the unrefuted evidence

indicates Beckendorf was physically unable to return to work until

after her leave expired under the FMLA.
2Neither party directed this court’s attention to any

controlling case law regarding the consequences befalling an

employee who fails to return to work after the expiration of the

maximum leave. Although this circuit has not established any

explicit precedent in this area, other courts have spoken to the

issue. See, e.g., Brown v. TransWorld Airlines, ___ F.3d ___, 1997

WL 610821, *7 (4th Cir. 1997) (affirming summary judgment in part

because plaintiff conceded she took leave in excess of that

required to be provided under the FMLA); Nunes v. Wal-Mart Stores,

Inc., 1997 WL 638431, *5 (N.D.Cal. Sept. 24, 1997) (noting absence

of case law in area, but holding that “[a]ccording to federal law,

Wal-Mart’s obligation to hold open Nunes’ position continues for

twelve weeks; after this period, the employer has no legal

obligation to hold an employee’s position open.”); Watkins v. J&S

Oil Co., 1997 WL 592149, *3 (D.Me. Sept. 15, 1997) (noting

defendant would have no duty to provide plaintiff equivalent

employment if plaintiff was unable to return to work after twelve

weeks of leave; citing final regulations); Voskuil v. Environmental

Health Ctr.-Dallas, 1997 WL 527309, *9 (N.D.Tex. Aug. 18, 1997)

(same); Soodman v. Wildman, Harrold, Allen & Dixon, 1997 WL 106257,

*8 (N.D.Ill. Feb. 10, 1997) (same); Urbano v. Continental

Airlines, Inc., 1996 WL 767426, *4 (S.D.Tex. Nov. 1, 1996) (noting

plaintiff failed to indicate any FMLA provision requiring

reinstatement when plaintiff still could not perform her original

job after leave expired).

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This circuit has yet to address this specific factual

situation,2 but we agree today that Schwegmann did not violate the

FMLA’s express statutory provisions when it refused to reinstate

Beckendorf. The FMLA entitles an eligible employee to 12 weeks of

leave. As a district court has aptly put it:

Common sense dictates that since the statute states that

an employer must hold open an employee’s position for

twelve weeks during his or her leave of absence, that is

exactly what the employer must do and no more.

Nunes, 1997 WL 638431, *5. The interim regulations do not evince

an interpretation contrary to that embraced by the district court.
3Interestingly, Beckendorf alludes to another basis upon which

Schwegmann could have relied in denying reinstatement. Section

825.312 of the interim regulations says that “an employer may deny

restoration . . . if an employee fails to provide a requested

fitness-for-duty certification to return to work.” 29 C.F.R.

§ 825.312. Beckendorf concludes that “[a]ccording to the

Regulation, Schwegmann could deny restoration until Beckendorf

provided the certificate.” It is undisputed that Beckendorf’s

doctor could not have provided such a fitness-for-duty certificate

until well after the expiration of FMLA leave.

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Interim regulation § 825.214(b) provides that “[o]rdinarily an

employee will be restored to the same position the employee held

prior to FMLA leave.” 29 C.F.R. § 825.214(b). “FMLA leave,” as

that term is employed in the interim regulation, obviously may not

refer to more than the maximum amount of leave required to be

provided under the Act. Thus, the interim regulation contemplates

the return of the employee to his or her same position after

exhaustion of “FMLA leave,” 12 weeks being the maximum amount. The

final regulations lend support to this interpretation. Final

regulation § 825.214(b) states that “[i]f an employee is unable to

perform an essential function of the position . . ., the employee

has no right to restoration . . . under the FMLA.” 29 C.F.R.

§ 825.214(b). Beckendorf never returned from her FMLA leave and

her right to be reinstated thus never arose. Another way of

putting it is that once her leave expired, any right to restoration

also expired and Schwegmann was no longer under any express

statutory duty imposed by the FMLA to reinstate Beckendorf.3
4This circuit has not addressed whether an employee’s maximum

amount of leave under the FMLA may be extended due to some bad

action on the part of the employer. We need not resolve that issue

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B

Beckendorf alternatively argues that Schwegmann’s actions

misled her with respect to her rights under the FMLA.

Specifically, she contends that when she called Schwegmann in

September and October inquiring about returning to work and was

told that she would have to wait for the return of Mr. Janies, her

12-week window remained open until such time as she spoke with Mr.

Janies. Schwegmann denies that it instructed Beckendorf to wait

for Mr. Janies’ return. While these facts may be disputed, they

are immaterial to the resolution of this appeal.

The undisputed facts illustrate Beckendorf’s physical

inability to return to her former position, or any position, until

after the expiration of her statutory leave period. She cannot

argue that she would have returned to work earlier, when her right

to restoration remained ripe under the express provisions of the

FMLA, except for her reliance on Schwegmann’s actions and that her

rights under the FMLA should thus be extended so as to disallow

Schwegmann any benefit from its misleading behavior. She could not

have relied to her detriment on Schwegmann’s instructions to wait

for the return of Mr. Janies because she physically could not have

returned to work before the expiration of her FMLA leave.4 No
here because, assuming arguendo that such an extension was

available under the FMLA, Beckendorf would still not be entitled to

the extra protection under these facts.

5Section 2653 provides that “[n]othing in this Act . . . shall

be construed to discourage employers from adopting or retaining

leave policies more generous than any policies that comply with

the . . . Act . . . .” 29 U.S.C. § 2653.

6Section 825.700(a) provides in relevant part that “[i]f an

employer provides greater unpaid family leave rights than are

afforded by FMLA, the employer is not required to extend additional

rights afforded by FMLA.” 29 C.F.R. § 825.700(a).

7Beckendorf attempts to argue that the facts state a claim for

breach of Schwegmann’s company policy. Such an action is not

cognizable under the FMLA, however.

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genuine issue of material fact exists with respect to this matter

and the district court correctly dismissed this argument.

C

Beckendorf also invites us to hold that Schwegmann’s company

policy of allowing up to six months leave time extended her FMLA

rights a parallel amount of time. While the FMLA encourages

employers to provide more than the minimum 12 weeks of leave,5 the

fact that employers do so alone is not indicative of their

intention to likewise extend their employees’ statutory rights.6

There is no evidence in the record indicating that Schwegmann’s

company leave policy extended Beckendorf’s FMLA leave rights.7

This contention offers Beckendorf no relief. The record indicates

that no genuine issues of material fact exist with respect to
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Beckendorf’s claims under the FMLA. The district court properly

granted Schwegmann’s motion for summary judgment in this respect.

V

Beckendorf also alleges that Schwegmann retaliated against her

in violation of Title VII when it refused to reinstate her and

ultimately fired her. To prove a prima facie case of retaliation,

the plaintiff must demonstrate that: (1) she engaged in an activity

protected by Title VII; (2) an adverse employment action occurred;

and (3) a causal connection existed between the participation in

the protected activity and the adverse employment action. Long v.

Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996); Dollis v.

Rubin, 77 F.3d 777, 781 (1995). Schwegmann disputes only

Beckendorf’s establishment of the causation factor.

Before Schwegmann terminated her employment, Beckendorf had

filed two charges with the EEOC alleging that Oertling and

Schwegmann had discriminated against her. Her first charge, filed

in July, 1989, was dismissed by the EEOC in May, 1990. Her second

charge, filed in September, 1991 was dismissed a year later. After

Beckendorf’s right to leave under the FMLA expired, Schwegmann

decided not to reinstate her to her former position because of

“past difficulties” with Mr. Oertling, concern for her health, and

the fact that the Auditing Department was running smoothly without
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her, according to affidavits filed as part of the summary judgment

record.

Beckendorf argues that the “past difficulties” to which

Schwegmann alludes include her claims filed with the EEOC.

Schwegmann urges this court to hold that the lapse of time between

the protected activity and the adverse employment action mandates

summary judgment against Beckendorf. See Mayberry v. Vought

Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995) (noting timing is

significant but not determinative); Shirley v. Chrysler First,

Inc., 970 F.2d 39, 43-44 (5th Cir. 1992) (same). In this case,

over three years had passed since Beckendorf’s last EEOC filing.

While the past EEOC filing alone may not be sufficient to overcome

a summary judgment motion, the past filing, along with inferences

drawn from Schwegmann’s own statements are sufficient to create a

genuine issue of material fact as to the final element of

Beckendorf’s prima facie case.

However, Beckendorf has not demonstrated a fact issue

concerning whether or not Schwegmann’s proffered legitimate nondiscriminatory reasons were a pretext for discrimination. See St.

Mary’s Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2752 (1993). When

confronted with a properly supported motion for summary judgment,

the plaintiff may not simply rely on her pleadings to escape

judgment as a matter of law. Fed.R.Civ.P. 56(e); S.E.C. v. Recile,
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10 F.3d 1093, 1097 (5th Cir. 1993). Schwegmann presented unrefuted

evidence that Beckendorf was terminated in accordance with

Schwegmann’s standard leave of absence procedures. That is, an

employee who has not returned to work upon expiration of the

maximum leave available under FMLA is terminated unless she is

eligible under company policy (as Beckendof was) for medical

coverage for up to six months. Any employee who does not return to

work after six months is terminated. There is no evidence that the

company varied from this policy in Beckendorf’s case or in any

other case. The district court properly granted Schwegmann’s

motion for summary judgment with respect to Beckendorf’s

retaliation claim.

VI

The district court committed no error when it granted

Schwegmann’s motion for summary judgment and we affirm for

essentially the same reasons as set forth by that court. The

evidence is undisputed that Beckendorf was physically unable to

return to work before the expiration of the maximum amount of leave

provided under the FMLA. After the exhaustion of her 12 weeks of

leave, Beckendorf’s right to reinstatement under the Act collapsed.

Schwegmann did not violate the FMLA by refusing to restore

Beckendorf to her former position. The evidence is also

insufficient to create a genuine issue of material fact as to
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Beckendorf’s claims that she reasonably relied upon Schwegmann’s

actions to her detriment and that Schwegmann’s company leave policy

extended her statutory rights. Finally, the record is completely

devoid of any evidence that Schwegmann terminated Beckendorf’s

employment in retaliation for her engagement in an activity

protected under Title VII.

The judgment of the district court is hereby

A F F I R M E D.