UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ROBERT PARK MEDEARIS, JR., Plaintiff - Appellant,

v. CITY OF TAHLEQUAH; MAYOR JASON NICHOLS, in his official capacity, Defendants - Appellees. No. 18-7009 (D.C. No. 6:17-CV-00005-JH) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , MORITZ , and EID , Circuit Judges.

________________ _________________ Robert Park Medearis, Jr., appeal s from the district court’s gr ant of summary judgment to the City of Tahlequah (the City) on Medearis’s clai m that the City interfered with his right to ta ke leave under the Family and Me dical Leave Act (FMLA), 29 U.S.C. §§ 2611-2654 . Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 21, 2018
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND For many years, the City employe d Medearis as its City Attorney . On September 8, 2015, however, he became incapacitated. He went t o the emergency room for falls and conf usion and was admitted to the hospital, where he suffered “from confusion, cognitive defici ts, altered mental status, and impaired judgment.” Aplt. App., Vol. I at 45. He was diagnosed with alcohol use di sorder, and at some point he developed a pul monary embolism. Medical staff were not optimisti c about Medearis’s chances, adv ising his then-wife, Sandy Medearis, to prep are for him to die. In mid-t o-late September, Ms. Medearis sought and obtained fro m an Oklahoma court an orde r of legal guardianship over Medearis. How ever, Medearis’s health improve d, and he was transferred to a nursing hom e on or about October 9, 2015. During this period, the City cont inued paying Medearis his sala ry and benefits. Notably, however, the City didn’t believe Medearis was entitled to leave under the FMLA and thus didn’t give any no tice of FMLA rights either to M edearis or to Ms. Medearis as his legal guardia n. Through their communicatio ns with Ms. Medearis, City officials understood that Medearis’s conditi on was dire, and they remained concerned about the City ’s legal representation. In m id-October, the Mayor, Jason Nichols, signed a c ontract with a local attorney t o act as Interim City Attorney. But with Medearis’s long absence being the best-case scenario, the Mayor communicated to Ms. Medearis near the end of October that the C ity needed to replace Medearis as City Attorney . The Mayor believed that a r esignation would be a3 softer and more respectful way to handle the transition. If Ms . Medearis as his guardian would provide a letter of resignation on Medearis’s be half, the Mayor promised to fight for him to con tinue to receive payments and b enefits for as long as the City Council woul d agree to do so. Ms. Medearis gave the Mayor an undated resignation letter. At a meeting on November 2, 2015, the City Counc il voted to accept the resignat ion and make it effective on January 31, 2016 , thus continuing Medearis’s pay a nd benefits for three additional months. The City Counc il further voted to make the Interim City Attorney the City Attorney effec tive on February 1, 2016. Medearis remained confined to the nursing home until January 4, 2016. When he was discharged, his physicia n recommended he s hould not prac tice law until he had been evaluated by a neurop sychologist. After examining Med earis on January 30, 2016, the neuropsychologist f ound he had suffered declines in cognitive abilities. He stated that there was nothing to prohibit Medearis’s return to legal work, but he recommended that Medearis retur n gradually and under the superv ision of another attorney until he demonstrated h is cognitive skills were intact

. The legal guardianship remained in place until February 2, 2016 , when the state court lifted it upon a moti on Ms. Medearis had filed at t he end of January. Neither Medearis nor Ms. Medea ris ever contacted the City about Medearis resuming his position as City Attorney un til March 2016, when Medearis r eached out to the Mayor.4 In this litigation, Medearis sue d both the City and Mayor Nicho ls in his official capacity. He asserted F MLA claims of retaliation and interference and a state-law claim for intentional infliction of emotional distres s. During briefing on the City’s summary-judgment motion , Medearis conceded his claims ag ainst Mayor Nichols and his state-law clai m, and he moved to dismiss his FM LA retaliation claim. The district court grante d dismissal of the FMLA retali ation claim and granted summary judgment in fa vor of the defendants on the FMLA interference claim and the state-law claim. Medearis now appeals the judgme nt in favor of the City on the FMLA int erference claim.
ANALYSIS Summary judgment is appropriate “if the movant shows that ther e is no genuine dispute as to any materi al fact and the movant is entit led to judgment as a matter of law.” Fed. R. Civ. P . 56(a). “We review the distric t court’s summary judgment decision de novo to det ermine whether a genuine issue of material fact exists, viewing the record in th e light most favorable to [Mede aris].” Campbell v. Gambro Healthcare, Inc. , 478 F.3d 1282, 1287 (10th Cir. 2007). The FMLA provides eligible emp loyees who are suffering “a seri ous health condition” that makes them “unabl e to perform the functions of [their] position” the right to take up to twelve workw eeks of leave in a twelve-month period. 29 U.S.C. § 2612(a)(1)(D). Such employees also are entitled, on return f rom FMLA leave, to be reinstated to their positi on or an equivalent position. Id. § 2614(a)(1). The FMLA5 makes it “unlawful for any employe r to interfere with, restrain , or deny the exercise of or the attempt to exercise” any FMLA right. Id. § 2615(a)(1). There are three elements to a FM LA interference claim: “(1) th at [the plaintiff] was entitled to FMLA leave, (2) that some adverse ac tion by the employer interfered with [his] right to ta ke FMLA leave, and (3) that th e employer’s action was related to the exercis e or attempted exercis e of [his] FMLA rig hts.” Campbell , 478 F.3d at 1287 (inter nal quotation marks omitted). Once a pl aintiff has established the first two elements, the burde n shifts to the employer to sa tisfy the third element.
Id. The parties have stipulated forpurposes of the summary-judgmen t motion that Medearis was protected by the FM LA, but the district court rule d against Medearis on both remaining elements. “In order to satisfy the second element of an interference cla im, the employee must show that []he was prevent ed from taking the full 12 weeks [] of leave guaranteed by the FMLA, denied re instatement following leave, o r denied initial permission to take leave.” Id. The record is clear that th e City extended Medearis not only the full twelve weeks of leave mandated by the FMLA, b ut more—it paid him and continued hi s benefits for approxi mately twenty-one wee ks, from September 8, 2015, through January 31, 20 16. The issue, then, is whether a reasonable jury could find that the City denied him reinstatement following his leave. For reinstatement, the relevant da te is December 1, 2015, when Mede aris’s FMLA-guaranteed twelve weeks of leave ended.6 The district court held that Med earis had not shown any adverse action by the City because Ms. Medear is, his legal guardia n, had voluntarily and without coercion submitted a resignation on behal f of Medearis. Once she submit ted the resignation letter, the district court held, the City was not required to m ake any effort to reinstate Medearis to the position of City Attorney. On appeal, Medearis contends the district court erred in concluding that t he resignation was truly a know ing and voluntary act by Ms. Medearis. But we need not d ecide whether the district c ourt correctly concluded that a reasonable jury could not find in favor of Med earis on the second, or even the third, element. That’s because we agree with the dist rict court that Medearis has failed to show prejudice. 1 As the district held, even if t he City interfered with Medearis ’s exercise of his FMLA rights, he was not prejudi ced because no reasonable factfi nder could conclude that he was capable of returning to work when his leave expired on December 1,
2015. See Ragsdale v. Wolverine World Wide, Inc. , 535 U.S. 81, 89 (2002) (stating

1 Regarding the third element, th e district court held that even “[a]ssuming . . . that the City’s act of soliciti ng the letter and accepting it b efore the end of the twelve[-]week period amounted to adverse action,” the claim wou ld still fail because “[Medearis] has not met his burde n with respect to the third, c ausation element of his claim.” Aplt. App., Vol. II at 5 53. But this was error becaus e once the employee establishes the first two elemen ts, the burden shifts to the em ployer to establish the third element. See Campbell , 478 F.3d at 1287. Medearis t herefore had no burden at this stage of the analysis—rathe r, the City had the burden to s how no genuine issue of material fact as to whether its solicitation of the resignat ion letter was related to the exercise of Medearis’s FMLA rights. Nevertheless, for the reasons discussed above, even when the burden is p roperly placed on the City, Med earis’s FMLA interference claim can’t survive the City’s summary-judgment mo tion.7 that “[the FMLA] provides no re lief unless the employee has bee n prejudiced by the violation”). Medearis claims that he could ha ve returned to work had he know n his FMLA leave expired on December 1, 2015 . He asserts that by then the re was no medical reason to justify his being conf ined to a nursing home, and tha t the legal guardianship proceeding was void for being pr ocedurally infirm. In support, among other evidence, he offered state-cour t filings from December 2015 att acking the guardianship, as well as testim ony from his family members that he was acting normally at a family gathering at Thanksgiving. As the district court concluded, however, regardless of Medeari s’s actual mental and physical condition, 2 no reasonable jury could c onclude that he would have been able to return to work on December 1, 2015. He was confin ed to a nursing home until January 4, 2016, and he was the subject of a state-c ourt order of legal guardianship until February 2, 201 6. Even if the guardianship was improperly obtained, as Medearis asserts, it remained valid until the stat e court vacated it. And while the guardianship remained i n effect, Medear is was deemed incapable of conducting his own affairs. See Okla. Stat. tit. 30, § 1-112( A)(2) (providing that the Oklahoma Guardianship and Conserva torship Act applies to “[i]nc apacitated and

2 The district court expressed doubt, but didn’t decide, that Me dearis’s evidence was sufficien t to create a genuine issue of material f act as to his mental and physical condition as of Decemb er 1, 2015. Like the district c ourt, we need not evaluate Medearis’s actual comp etency. But we note that as lat e as January 30, 2016, a neuropsychologist recommended th at Medearis undertake only a gradual return to work as an attorney, a nd that initially he be supervised by ano ther attorney.8 partially incapacitated persons”); id. § 1-111(12) (defining “i ncapacitated person” as an adult who is impaired by phys ical or mental illness or drug or alcohol dependency “whose ability to receive and eval uate information effectively or to make and to communicate responsible decisions i s impaired to such an extent that said person: (1) lacks the capacity to meet e ssential requirements for his p hysical health or safety, or (2) is unable to manage his financial resources”). Under th ese circumstances, no reasonable juror could conclude that as of December 1, 2015, Me dearis could have returned to work as the City Attorney. The district court’s judgment is affirmed.

Entered for the Court

Nancy L. Moritz Circuit Judge