FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

01/18/2000

THOMAS K. KAHN

CLERK

*

Honorable Robert B. Propst, Senior U.S. District Judge for the Northern

District of Alabama, sitting by designation.

 [PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

Nos. 97-5879 & 98-5121

_______________________

D. C. Docket Nos. 96-CV-8502-WJZ & 97-CV-8883-LCN

DEBRA LEE O’CONNOR,

Plaintiff-Appellant,

versus

PCA FAMILY HEALTH PLAN, INC.,

Defendant-Appellee.

_________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(January 18, 2000)

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*

,

Senior District Judge.

KRAVITCH, Senior Circuit Judge:
2

The primary issue these consolidated appeals present, and one of first

impression in this circuit, is the scope of employment protection afforded by the

Family Medical and Leave Act of 1993 (the “FMLA”), 29 U.S.C. §§ 2601 - 54;

specifically, we address the circumstances under which an employer may terminate

an employee on FMLA leave. Plaintiff-Appellant Debra O’Connor brought suit

against PCA Family Health Plan, Inc. (“PCA”), her former employer, claiming

PCA violated the FMLA by terminating her employment and attendant benefits

while she was exercising her statutory right to FMLA leave. The district court

found no such violation. We agree and therefore AFFIRM.

I. BACKGROUND

In March 1995, O’Connor entered the employ of PCA as an Account

Executive in PCA’s Boca Raton, Florida, office. O’Connor learned she was

pregnant in August of that year and notified PCA of her intention to take maternity

leave for the birth and post-natal care of her child. Under the terms of PCA’s

employee benefits policy, O’Connor had several leave options, including FMLA

leave, sick and vacation leave, short-term disability leave, and leave without pay. 

She discussed these options with her supervisors in PCA’s Boca Raton office and

requested a period of FMLA leave commencing April 22, 1996, and ending August
1

O’Connor’s last scheduled day of work was April 17, 1996. She planned to take

personal leave for the work days between that date and April 22 to delay the commencement of

her FMLA leave. The HRD, however, designated April 18 as her first day of FMLA leave.

3

1, 1996. PCA’s regional Human Resources Department (the “HRD”) for the state

of Florida, housed in PCA’s Miami office, instead approved a leave package

commencing on April 18, 1996, the day after O’Connor’s last scheduled day of

work,1

 and ending on July 10, 1996. O’Connor’s child was born on May 2.

In June 1996, economic losses experienced during the previous two years

compelled PCA to undergo a reduction in force (“RIF”). PCA implemented the

RIF in multiple phases, the first occurring on July 1, 1996, with the termination of

190 employees. PCA’s HRD selected these employees from lists submitted by the

supervisors of various departments throughout PCA’s Florida offices. O’Connor’s

name was one of those submitted. While compiling the final roster of employees

to be terminated in the first phase of the RIF, the HRD reviewed the submitted lists

for employees who, as of the date of the first phase of the RIF, would be on leave. 

The HRD flagged two employees and removed them from the final roster, opting

to reassess their employment statuses after they returned from leave. The HRD,

however, failed to flag O’Connor’s name; consequently, PCA terminated

O’Connor as part of the first phase of its RIF.
4

On or about July 11, 1996, O’Connor learned of her termination and

contacted her former supervisor in the Boca Raton office to inquire as to the

reason. The supervisor notified the HRD that an employee on leave had been

terminated. Odalys Torres, who at the time was PCA’s Director of Human

Resources for Florida, investigated and concluded that the HRD in fact should

have removed O’Connor’s name from the RIF roster, as it did with the other two

employees then on leave. On or about August 15, PCA orally offered to reinstate

O’Connor to her former position, but she declined.

On July 23, 1996, O’Connor filed a complaint with the United States District

Court for the Southern District of Florida, alleging PCA violated the FMLA by

terminating her while she was on FMLA leave (Case No. 97-5879, the “FMLA

suit”). On or about October 1, 1996, she also filed charges with the Equal

Employment Opportunity Commission (the “EEOC”) and the Florida Commission

on Human Relations, alleging discrimination based on her gender, age, and 

pregnancy status in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), as amended, 42 U.S.C. § 2000e; the Age Discrimination in Employment Act

of 1967 (the “ADEA”), as amended, 29 U.S.C. §§ 621–634; and the Florida Civil

Rights Act, Fla. Stat. ch. 760.01–.854. The EEOC took no action on O’Connor’s
5

complaint, and on August 18, 1997, O’Connor requested and received her Notice

of Right to Sue.

O’Connor’s FMLA suit was adjudicated in a bench trial before the district

court on August 25, 1997. The district court announced its judgment on September

24, 1997, holding that PCA had not violated the FMLA by terminating O’Connor

while she was on FMLA leave.

On November 17, 1997, O’Connor exercised her “right to sue” by filing a

second suit against PCA, alleging the various charges of discrimination included in

her EEOC complaint (Case No. 98-5121, the “employment discrimination suit”). 

PCA immediately moved for summary judgment on the ground that the prior

adjudication of O’Connor’s FMLA suit has res judicata effect on all claims

included in her second suit. The district court agreed and granted PCA’s motion

for summary judgment on June 30, 1998.

II. ANALYSIS

A. CASE NO. 97-5879: THE FMLA SUIT
2

“The term ‘eligible employee’ means an employee who has been employed—(i) for at

least 12 months by the employer with respect to whom leave is requested under section 2612 of

this title; and (ii) for at least 1,250 hours of service with such employer during the previous 12-

month period.” 29 U.S.C. § 2611(2)(A) (1999). The parties do not dispute O’Connor was an

“eligible employee.” 

3

“[A]n 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: (A) Because of the birth of a son or daughter

of the employee and in order to care for such son or daughter. . . .” Id. § 2612.

4

“[A]ny eligible employee who takes leave under section 2612 . . . shall be entitled, on

return from such leave—(A) to be restored by the employer to the position of employment held

by the employee when the leave commenced; or (B) to be restored to an equivalent position . . .

.” Id. § 2614(a)(1).

5

“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of

or the attempt to exercise, any right provided under this subchapter.” Id. § 2615(a)(1).

6

“It shall be unlawful for any employer to discharge or in any other manner discriminate

against any individual for opposing any practice made unlawful by this subchapter.” Id.

§ 2615(a)(2).

6

The FMLA provides that an “eligible employee”2 is entitled to a maximum

of twelve weeks of leave3

 during which her employment status is protected.4 The

FMLA recognizes two types of claims for alleged violations of these provisions:

interference claims,5

 in which employers burden or outright deny substantive

statutory rights to which their employees are entitled, see 29 U.S.C. § 2615(a)(1)

(1999), and retaliation claims,6

 in which employers discharge employees for

exercising their FMLA right to leave, see id. § 2615(a)(2). O’Connor’s complaint

did not specifically characterize her FMLA claim as either, but rather asserted

some nonspecific violation of the FMLA. In its resolution of the claim, however,

the district court construed O’Connor’s complaint to allege only a retaliatory
7

See R2 (Case No. 97-5879) at 84-135 (cross-examination of HRD Director Torres by

Plaintiff’s counsel).

8

See Joint Pretial Stipulation at 2, in R1 (Case No. 97-5879) at Tab 26. 

7

discharge. O’Connor appeals this as error, contending she also properly presented

an interference claim to the district court. 

We must first resolve the character of the FMLA claim O’Connor submitted

to the district court, a question of law we review de novo. See Massaro v.

Mainlands Section 1 & 2 Civic Ass'n, 3 F.3d 1472, 1475 (11th Cir. 1993). After

reviewing the record, we are satisfied O’Connor presented sufficient evidence at

trial in support of both cognizable causes of action. The testimony and

documentary evidence elicited at trial reveal O’Connor’s attempt to establish that

PCA denied her statutory right to reinstatement upon return from leave, as

provided by 29 U.S.C. § 2614(a)(1).7

In opposition to our conclusion, PCA directs our attention to the Joint

Pretrial Stipulation, in which the parties framed O’Connor’s allegation of improper

termination as being “in response to her having requested pregnancy leave.”8

Although this phrasing may suggest O’Connor believed her termination was

retaliatory, we note that this statement was included in the Stipulation’s Statement

of the Case, rather than as an Issue of Law for the Court; the actual issue presented
9

See id. at 3.

10Although we find O’Connor presented both claims to the district court, she does not

appeal the district court’s analysis of the retaliation claim, to which it applied the burden-shifting

approach outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973),

and common to employment discrimination claims. She has therefore abandoned the issue. See

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

11This court may decide this issue because we hold infra that even under this alternate

theory of recovery, PCA did not violate the FMLA, and thus affirm the district court’s final

judgment. See Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995) (holding this

court may affirm a district court on any basis). Furthermore, because this court may consider

issues not even raised before the district court when they are pure legal questions or the proper

outcome is beyond doubt, cf. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994) (stating the

five exceptions to the general rule against considering such issues), disposing of such an issue

actually presented to but not addressed by the district court is certainly within our discretion.

8

to the district court was simply, “Whether PCA violated the FMLA?”9 We are not

satisfied that the language to which PCA points precluded O’Connor from also

arguing an interference claim at trial. We therefore conclude the district court

erred in not considering both types of FMLA claims in deciding whether PCA

violated the statute. Moreover, because we find the factual record to be welldeveloped, we choose to resolve the interference claim ourselves,10 rather than

remand the case to the district court.11 

The standard for establishing an interference claim under the FMLA is an

issue of first impression in this circuit, but other courts have addressed it. See Diaz

v. Fort Wayne Foundry Corp., 131 F.3d 711, 712-14 (7th Cir. 1997); see also

Hubbard v. Blue Cross Blue Shield Assoc., 1 F. Supp. 2d 867, 874-75 (N.D. Ill.

1998) (applying Diaz); Kaylor v. Fannin Reg’l Hosp., Inc., 946 F. Supp. 988, 996-
12There is some confusion as to whether O’Connor was still on FMLA leave on the date

of her termination. Under the leave package approved by the HRD, O’Connor’s FMLA leave

expired on July 10,1996, twelve weeks after her last day at work, April 17, 1996. The letter

announcing O’Connor’s termination was initially dated July 1, 1996, but once HRD Director

Torres learned O’Connor was on leave on July 1, she allegedly post-dated the effective date of

O’Connor’s termination to reflect her last date of protected leave. PCA argues that because

O’Connor received the entire twelve weeks of leave to which she was entitled, she has no actual

FMLA claim. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1275 (11th Cir. 1999)

(per curiam). The district court, without explanation, found O’Connor was on FMLA leave

when she was terminated. The record testimony surrounding this issue is ambiguous at best, so

we are unable to conclude the district court clearly erred in finding this fact. Furthermore, the

issue is mooted by our eventual holding that, even assuming O’Connor was on FMLA leave

when terminated, the termination did not violate the FMLA.

9

97 (N.D. Ga. 1996); cf. Hodgens v. General Dynamics Corp., 144 F.3d 151, 159-

60 (1st Cir. 1998) (recognizing interference claims and citing Diaz). In Diaz, the

Seventh Circuit held that if an employee proves by a preponderance of the

evidence she is entitled to the benefit she claims and that her employer interfered

with or denied that benefit, the employer violated the FMLA. See 131 F.3d at 713. 

O’Connor argues 29 U.S.C. § 2614(a)(1) provides that an employee returning from

leave is entitled to reinstatement, yet PCA denied her that benefit by terminating

her before her leave expired,12 thus proving her claim. Essentially, O’Connor,

relying on Diaz, asserts that all FMLA rights, including reinstatement, are absolute.

Although we find no fault with the Seventh Circuit’s interpretation of the

FMLA, it is not completely apposite to this case. The Diaz plaintiff requested but

was denied his twelve weeks of leave for an alleged medical condition as

authorized by 29 U.S.C. § 2612(a)(1)(D), and the Seventh Circuit held the FMLA
13We note that the Seventh Circuit ultimately held that the plaintiff did not qualify for

relief because he had not complied with his employer’s request for a second medical opinion, as

is an employer’s right under the FMLA, 29 U.S.C. § 2613(c). See Diaz, 131 F.3d at 713-14.

10

does not permit employers to deny such a request, provided the employee follows

proper procedure.13 See 131 F.3d at 713. Unlike the right to commence leave, an

employer can deny the right to reinstatement in certain circumstances, see Ilhardt

v. Sara Lee Corp., 118 F.3d 1151, 1157 (7th Cir. 1997) (holding an employer may

terminate an employee on FMLA leave as part of a RIF), because United States

Department of Labor regulation qualifies the right.

An employee has no greater right to reinstatement or to

other benefits and conditions of employment than if the

employee had been continuously employed during the

FMLA leave period. An employer must be able to show

that an employee would not otherwise have been employed

at the time reinstatement is requested in order to deny

restoration to employment. For example:

(1) If an employee is laid off during the course of taking

FMLA leave . . . the employer's responsibility to continue

FMLA leave, maintain group health plan benefits and

restore the employee cease at the time the employee is laid

off . . . . An employer would have the burden of proving

that an employee would have been laid off during the

FMLA leave period and, therefore, would not be entitled to

restoration.

29 C.F.R. § 825.216(a) (1999) (emphasis added). We hold that when an “eligible”

employee who was on FMLA leave alleges her employer denied her FMLA right

to reinstatement, the employer has an opportunity to demonstrate it would have
14At trial, O’Connor brought to the district court’s attention 29 C.F.R. § 825.700(a)

(1999), which explains “[a]n employer must observe any employment benefit program or plan

that provides greater family or medical rights to employees than the rights established by the

FMLA.” O’Connor argued PCA’s removal of employees on FMLA from the RIF roster was

tantamount to such a “program or plan,” requiring PCA to treat all similarly situated employees

equally. O’Connor did not reassert this argument on appeal, however, so we deem it waived. 

See Greenbriar, 881 F.2d at 1573 n.6.

11

discharged the employee even had she not been on FMLA leave. The district court

found that PCA slated O’Connor for termination as part of the first phase of its

RIF, the legitimacy of which O’Connor has never challenged. We have no reason

to dispute that finding, see Massaro, 3 F.3d at 1475 (reviewing findings of fact for

clear error), and therefore conclude PCA was justified in terminating O’Connor

even while she was on FMLA leave.

O’Connor emphasizes PCA’s election to remove two other employees on

FMLA leave from the final RIF roster while failing to do the same for her as

evidence of PCA’s awareness of a duty to refrain from terminating all employees

on FMLA leave. We find this argument to be without merit. PCA’s voluntary

adoption of an employment policy designed to avoid legal entanglements

(ironically unsuccessful) does not expand the scope of legally enforceable

employment protection beyond that which the statute affords.14 If anything, PCA’s

oversight of O’Connor’s name and failure to remove it from the final RIF roster
12

only indicate that O’Connor’s FMLA status played no part in PCA’s decision to

discharge her.

After fully considering O’Connor’s interference claim, we agree with the

district court’s ultimate conclusion that the termination of O’Connor during her

period of FMLA leave, because it was part of a legitimate RIF, did not violate the

statute.

B. CASE NO. 98-5121: THE EMPLOYMENT DISCRIMINATION SUIT

1. Res Judicata

In its grant of summary judgment, the district court held O’Connor’s FMLA

suit had res judicata effect on the discrimination claims brought in her second suit,

thus barring those claims. We review this conclusion of law de novo. See Israel

Discount Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir. 1992).

 The Supreme Court has explained that following “a full and fair opportunity

to litigate[, res judicata] protects [a party’s] adversaries from the expense and

vexation attending multiple lawsuits, conserves judicial resources, and fosters

reliance on judicial action by minimizing the possibility of inconsistent decisions.” 

Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74 (1979). 

Res judicata thus precludes claims which a plaintiff actually raised or could have
13

raised in a prior suit when (1) there is a final judgment in a prior suit on the merits;

(2) the decision in the prior suit is rendered by a court of competent jurisdiction;

(3) the parties in both suits are identical; and (4) both suits involve the same cause

of action. See Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th

Cir. 1990). The first three elements are obviously satisfied in this case and do not

warrant discussion. As for the fourth element, in Citibank, this court explained that

“‘if a case arises out of the same nucleus of operative fact . . . as a former action,

[then] the two cases are really the same “claim” or “cause of action” for purposes

of res judicata.’” Id. at 1503 (quoting Ruple v. City of Vermillion, 714 F.2d 860,

861 (8th Cir. 1983)). Because O’Connor’s FMLA claim and her other

discrimination claims all issue from a single event, namely, the termination of her

employment, we conclude res judicata bars O’Connor’s second suit; the district

court’s grant of summary judgment was proper.

In an attempt to persuade us otherwise, O’Connor cites Pleming v.

Universal-Rundle Corp., 142 F.3d 1354, 1357-59 (11th Cir. 1998), in which this

court held res judicata did not bar a plaintiff’s second discrimination claim in a

separate suit, even though it was against the same employer and was known to the

plaintiff prior to the adjudication of her earlier suit. The cornerstone of Pleming’s

holding, however, was that the circumstances giving rise to the allegations of the
14

second suit occurred after she filed her first suit; in other words, the claims brought

in each suit were premised on entirely different instances of alleged discrimination. 

See id. O’Connor’s reliance on Pleming is therefore misplaced. We iterate that in

the instant case, the nucleus of facts from which O’Connor’s employment

discrimination claims stem is identical to that underlying her FMLA claim.

O’Connor contends the procurement of her EEOC Notice of Right to Sue

(“Notice”), which she received after she filed her FMLA suit, rather than her

termination, gave rise to her discrimination claims. She argues that because she

was unable to bring her discrimination claims prior to evaluation by the EEOC

during a statutory 180-day waiting period, see 42 U.S.C. § 2000e-5(f) (1994), her

second suit involves “new rights acquired,” against which a previous judgment has

no preclusive effect. See Pleming, 142 F.3d at 1357 (citing Manning v. City of

Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (quoting Los Angeles Branch,

NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir. 1984))). 

Again, O’Connor’s reading of Pleming ignores the context of the decision. 

Because the claims brought in each of the plaintiff’s suits were premised on

entirely different episodes of alleged discrimination, the Pleming court simply held

that the plaintiff was not required to join unrelated claims in a single suit and that

the adjudication of one of those claims did not preclude the other. O’Connor’s
15O’Connor could have either delayed filing or continued her FMLA suit until she

received her Notice. Furthermore, O’Connor did not request her Notice until August 18, 1997,

only a week before she adjudicated her FMLA suit. She could have requested the Notice as

early as April 1, 1997, the approximate date on which the EEOC’s 180-day waiting period

expired and nearly five months prior to the first trial; O’Connor would have had ample time to

amend her initial complaint to include the additional claims.

15

claims, on the other hand, all relate to the termination of her employment and

should have been brought together.15 Contrary to O’Connor’s implied suggestion,

Pleming did nothing to alter our usual approach to res judicata, which focuses on

the identity of the factual circumstances from which various claims or theories of

recovery may arise. See Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1240 (11th

Cir. 1999) (also interpreting Pleming to not alter our usual approach to res

judicata). Accordingly, we agree with the district court that res judicata bars the

claims brought in O’Connor’s employment discrimination suit.

2. Attorney’s Fees

Following the district court's grant of summary judgment in the employment

discrimination suit, PCA moved for prevailing defendant attorney’s fees pursuant

to 42 U.S.C. § 1988, but the district court has yet to rule on the motion. PCA,

therefore, requests this court to rule on the appropriateness of an attorney’s fees

award, but remand for a determination of the amount. Because the motion is still

pending before the district court, however, we do not address the issue. 
16

III. CONCLUSION

The judgment of the district court in each case is hereby AFFIRMED.