* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and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.

-1- United States Court of Appeals

Fifth Circuit



## FILED

February 17, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 05-20230

__________________________

BENJAMIN JOHNSON,

Plaintiff–Appellant,

versus

HOUSTON’S RESTAURANT, INC.,

Defendant–Appellee.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

No. 4:03-CV-4566

___________________________________________________

Before JONES, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge: *

Benjamin Johnson sued Houston’s Restaurants, Inc., (“Houston’s”) for a vio lation of the

Family and Medical Leave Act (“FMLA”). Because the district court properly grant ed summary

judgment in favor of Houston’s, we affirm the judgment below.

I. FACTS AND PROCEEDINGS

Johnson had been employed by Houston’s for fourteen years, and at the time of his injury, he1 29 C.F.R. § 825.309(a) allows an employer to require an employee to submit periodic status reports

during the period of FMLA leave. Houston’s did not require Johnson to do so.

2 Johnson, at different times, has differently represented what occurred at that meeting. In his

complaint and in his response to Houston’s summary judgment motion below, Johnson admitted:

“Mr. Johnson was on medical leave for 62 days. Upon his return he was refused reinstatement to the

same or equal level job.” In his deposition, Johnson modified his explanation, stating that one of the

purposes of the meeting was to request reinstatement to the Fourth Man Assembler position. In his

brief on appeal, however, John so n co nt ends that the meeting simply was in the nature of another

periodic report, “to keep his colleagues aware of his condition” because “he was eager to talk about

returning to work.”

-2- held a kitchen position as “Fourth Man Assembler.” On July 23, 2001, while at home, Johnson

slipped and hurt his neck and back, an injury for which he visited a doctor and t ook unpaid leave.

Houston’s does not dispute that the leave qualified as protected leave under the FMLA.

During his time away from work, Johnson periodically updated Houston’s on the progress

of his recovery. 1 Beginning August 1, 2001, he submitted a series of five notes from his doctors to

substantiate his condition and his need for continued leave. The final doctor’s note, dated September

19, released Johnson for “light duty only” as of September 24, which meant that J ohnson was

restricted to lift ing no more than twenty pounds and had to protect his neck and back. Johnson faxed

this last doctor’s note to his supervisor, Barry Fisher, on September 19.

On Septem

ber 27, Johnson met with Fisher at Houston’s. The district court found that

“during this meeting, [Johnson] requested reinstatement to the Fourth Man position.” 2 The parties

do not dispute that Johnson was physically unable to resume all the duties of his previous position

as of the September 27 meeting. At this meeting, Johnson was offered a different position, that of

“salad expediter.” Though Johnson could have performed that job, it paid less, and in Johnson’s

opinion, came with less prestige. Johnson turned down the different position, and Fischer promptly

fired him.-3-

In September 2003, Johnson filed suit in Texas state court on the FMLA claim. Houston’s

t imely removed the case to federal court on diversity and federal question grounds. After appropriate

filings, t he district court granted summary judgment to Houston’s in February 2005. The district

court explained that Johnson not only was unable to return to work on September 27, 2001 (the date

of the meeting with Fischer), but also did not establish that he would have been able to perform his

previous duties at the end of the statutory twelve-week FMLA leave period. Since the result would

have been the same regardless of which date Houston’s refused to reinstate Johnson, the district court

did not decide which date controlled the inquiry. Johnson timely appealed to this court.

II. STANDARD OF REVIEW

This court reviews de novo a district court’s grant of s ummary judgment, using the same

standards as the district court. U rban v. Dolgencorp of Tex., Inc.

, 393 F.3d 572, 573 (5th Cir. 2003).

Summary judgment is proper “if the pleadings, depositio ns, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to a judgment as a matter of law.” F ED

. R. C IV

. P. 56(c).

We view the evidenc e and all reasonable inferences in the light most favorable to the nonmoving

party. Lincoln Gen. Ins. Co. v. Reyna

, 401 F.3d 347, 349 (5th Cir. 2005). S ee generally Celotex

Corp. v. Catrett

, 477 U.S. 317, 323–24 (1986). Further, “we may affirm a summary judgment on

any ground supported by the record, even if it is different from that relied on by the district court.”

Holtzclaw

v. DSC Comms. Corp. , 255 F.3d 254, 258 (5th Cir. 2001).

III. DISCUSSION

The FMLA, inter alia

, entitles an eligible employee to twelve weeks of unpaid leave, within

a twelve-month period, if the employee suffers from a se rious health condi ti on. 29 U.S.C. §-4-

2612(a)(1). See also Rutland v. Pepper , 404 F.3d 921, 923 (5th Cir. 2005). Upon returning from

FMLA leave, the emplo yee must be restored to the same or an equivalent position. 29 U.S.C. §

2614(a)(1); 29 C.F.R. § 825.214(a). S ee also Rutland

, 404 F.3d at 923. However, if the employee

cannot perform the duties of his previous job, the FMLA does not require the employer to provide

a job that the employee can perform. 29 C.F.R. § 825.214(b). The FMLA explicitly considers the

type of situation at issue here, in which an employee may return from FMLA leave prior to the end

of the twelve-week maximum period. See, e.g. , 29 U.S.C. § 2612(b); 29 C.F.R. § 825.312(e).

The parties agree that Johnson’s medical condition qualified his leave for FMLA protecti on.

The only disputed issues are whether Johnson returned from FMLA leave on September 27, 2001,

and whether he was able to perform his previous job duties as of the end of his FMLA leave (be it on

on September 27 or at the end of the full twelve-week period).

Johnson admit t ed in his complaint, and repeated in his response to Houston’s summary

judgment motion, that “Mr. Johnson was on medical leave for 62 days. U pon his return he was

refused reinstatement to the same or equal leve l jo b.” (emphasis added). This court’s precedent

makes clear that “[f]actual assertions in pleadings are judicial admissions conclusively binding on the

party that made them.” W hite v. ARCO/Polymers, Inc.

, 720 F.2d 1391, 1396 (5th Cir. 1983). See

also Morales v. Dep’t of the Army

, 947 F.2d 766, 769 (5th Cir. 1991); Davis v. A.G. Edwards & Son,

Inc. , 823 F.2d 105, 108 (5th Cir. 1987). Since facts admitted in pleadings “are no longer at issue,”

Davis

, 823 F.2d at 108, Johnson is foreclosed fro m now arguing on appeal contrary to the facts

alleged in his complaint.

Because Johnson admitted that he returned from FMLA leave on Septem ber 27, 2001, his

claim can only surviv e if, upon return, he was able to perform his previous duties. As mentioned3 Since we conclude that Johnson’s admission conclusively binds him, for purposes of the statute, to

the position that he returned from FMLA leave on September 27, 2001, we need not address the

district court’s additional finding that Johnson would have been unable to perform his required duties

at the end of the full twelve-week period.

-5- earlier, though, it is undisputed that Johnson could not perform the duties of a Fourth Man Assembler

as of the September 27, 2001, meeting. Therefore, Houston’s did not violate the FMLA by refusing

to reinsta t e Jo hnso n to that position, since he was physically incapable of performing the duties

previously required of him. Accordingly, we affirm the district court. 3

IV. CONCLUSION

Because the district court properly granted summary judgment against Johnson and in

favor of Houston’s, we AFFIRM the judgment below.