United States Court of Appeals

For the First Circuit

No. 13-1341

SCOTT BELLONE,

Plaintiff, Appellant,

v.

SOUTHWICK-TOLLAND REGIONAL SCHOOL DISTRICT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]

Before

Lynch, Chief Judge,

Stahl and Kayatta, Circuit Judges.

Scott Bellone, pro se.

Patricia M. Rapinchuk, Jeffrey J. Trapani, and Robinson

Donovan, P.C. on brief for appellee.

May 2, 2014
STAHL, Circuit Judge. In this action alleging violations

of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.

§§ 2601-2654, plaintiff-appellant Scott Bellone appeals from the

district court's grant of summary judgment in favor of his former

employer, the Southwick-Tolland Regional School District. He

argues, among other things, that the district court overlooked

several genuine issues of material fact, misapplied the parties'

burdens of production, and relied upon inadmissible evidence.1

 We

disagree and affirm.

I. Facts & Background 

We recite here only the undisputed facts that are

relevant to this appeal, construing those facts in the light most

favorable to Bellone. See Ponte v. Steelcase Inc., 741 F.3d 310,

313 (1st Cir. 2014). Bellone has attempted to supplement the

record on appeal with certain evidence that he did not present to

the district court. As we made clear in a December 2013 order, we

will decide this appeal on the basis of the record compiled before

the district court. See Fed. R. App. P. 10(a) (describing the

composition of the record on appeal); Smith v. Jenkins, 732 F.3d

51, 76 (1st Cir. 2013) ("Save for certain exceptions not applicable

here, we do not consider arguments or evidence not presented to the

district court.").

1 Bellone was represented by counsel before the district court

and in his opening brief on appeal. He filed his reply brief pro

se. 

-2-
Bellone began working for the Southwick-Tolland Regional

School District in November 2005, as a fourth grade teacher at

Woodland Elementary School in Southwick, Massachusetts. On March

4, 2010, Bellone informed the School District that he needed to

take a two-week leave of absence for medical reasons. He provided

a note from his physician, Dr. Aleksandr Pugach, stating that he

would be unable to work from March 3, 2010 to March 23, 2010. On

March 23, 2010, Bellone provided a second note from Dr. Pugach,

stating that he would be unable to work from March 23, 2010 to

April 15, 2010. On March 24, 2010, the School District sent

Bellone what it later characterized as an FMLA eligibility notice. 

The letter instructed Bellone to fill out a certification form and

return it within fifteen days. Dr. Pugach submitted the completed

form on April 10, 2010, representing that Bellone was unable to

perform the job function of "teach[ing] children" for what Dr.

Pugach estimated would be an "uncertain" period of time.2 On May

2

 The School District established this fact by attaching, as

an exhibit to its summary judgment motion, the actual form

submitted by Dr. Pugach and by describing Dr. Pugach's

representations in an affidavit from the School District's

superintendent. On appeal, Bellone challenges that portion of the

affidavit as hearsay. See Vazquez v. Lopez-Rosario, 134 F.3d 28,

33 (1st Cir. 1998)("Evidence that is inadmissible at trial, such as

inadmissible hearsay, may not be considered on summary judgment."). 

However, because Bellone did not raise any objection to the

affidavit below, the district court was free to consider it. See

Desrosiers v. Hartford Life & Accident Ins. Co., 515 F.3d 87, 91

(1st Cir. 2008). In any event, Bellone has not challenged the

underlying medical record from Dr. Pugach, which would almost

certainly have been admissible, see Fed. R. Evid. 803(6), even if

the statement in the affidavit was not.

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3, 2010, the School District notified Bellone that the form did not

provide enough specific information about his medical condition. 

On May 10, 2010, Bellone gave the School District permission to

communicate directly with Dr. Pugach. For the remainder of the

academic year, which ended on June 21, 2010, the School District

continued to receive correspondence from Dr. Pugach stating that

Bellone was unable to work.3

On July 9, 2010, the School District sent Bellone what is

known as an FMLA designation notice, informing him that he had been

approved for FMLA leave, that the School District had designated

his twelve-week leave period as March 4, 2010 through June 4, 2010,

that he had exhausted his FMLA entitlement during that time, and,

therefore, that the School District was "requiring that [Bellone's]

physician indicate his/her medical opinion regarding [Bellone's]

ability to come back to work for the next school year." The letter

also informed Bellone that, if he was not medically able to return

to work, he could apply for an unpaid leave of absence for up to

one year, pursuant to the applicable collective bargaining

agreement.

3 The record in this case includes several notes from Dr.

Pugach certifying Bellone's inability to perform his job duties

from March 3, 2010 through May 27, 2010, as well as an affidavit

from the superintendent stating that "[t]hroughout the remaining

months of the school year, the District continued to receive

correspondence from Dr. Pugach advising of Mr. Bellone's inability

to perform the duties of his position." Bellone did not object to

that portion of the affidavit before the district court, nor has he

done so on appeal. 

-4-
The School District did not hear from Bellone regarding

his ability to return to work until it sent him another letter, on

August 25, 2010, informing him that his position remained open and

that he had seven days to provide evidence of his fitness for

duty.4 In response, the School District received a letter, dated

August 30, 2010, from psychologist Robert L. Wing, who stated that

he could "see no psychological reasons why [Bellone] should not

return to work at the beginning of the new academic year." 

The academic year began on September 1, 2010. On

September 9, 2010, the School District sent Bellone a letter

informing him that: (1) he was being placed on paid administrative

leave as of the date it received the documentation from Robert

Wing; (2) his salary would be at a 6B15 level for the coming year;

and (3) he was expected to return to work on September 22, 2010, at

which point he would be notified of his teaching assignment. 

Ultimately, the School District assigned Bellone to the following

position, as described in the affidavit of the school

superintendent:

4

 At around the same time, the School District offered

Bellone's position to another individual, since the first day of

the 2010-2011 academic year (September 1) was approaching, and

teachers were required to report to work on August 30, 2010. That

offer was qualified as to whether it would be for the entire

academic year, given Bellone's uncertain health status. 

-5-
Half of Mr. Bellone's workday would be spent

as a co-teacher in the same classroom and

grade where he previously taught. The other

half of the day would be spent as a teacher of

individual students and small groups from the

3rd and 4th Grades, providing MCAS-based math

tutoring and instruction. 

The new position provided the same benefits and salary as the

fourth grade teaching position Bellone had held before he went out

on leave.5

Bellone, who believed the new position to be a demotion,

did not report for work on September 22, 2010. He was immediately

suspended without pay and then officially terminated in October

2010. He filed this lawsuit in June 2012, alleging that: (1) the

School District interfered with his FMLA rights by failing to

provide proper and timely FMLA eligibility and designation notices;

(2) the School District's request for a fitness-for-duty

certification interfered with his FMLA rights and was retaliatory;

and (3) the School District's actions were retaliatory and caused

Bellone severe emotional distress.

5 In his pro se reply brief, Bellone belatedly suggests that

there exists a genuine dispute of material fact as to whether the

new position involved a reduction in salary. He has attempted to

support that assertion with evidence not submitted to the district

court, which we will not consider on appeal. See Smith, 732 F.3d

at 76. The School District, on the other hand, supported with

admissible evidence its representation before the district court

that 6B15 was the correct salary level. The district court thus

properly treated that fact as undisputed, and we will do the same. 

See Fed. R. Civ. P. 56(e)(2). 

-6-
The School District filed a motion to dismiss Bellone's

complaint, see Fed. R. Civ. P. 12(b)(6), which the district court

converted into a motion for summary judgment, see Fed. R. Civ. P.

56, because the School District had attached certain exhibits that

were outside the pleadings, see Fed. R. Civ. P. 12(d). Bellone

filed an opposition and cross-motion for summary judgment. In

January 2013, the district court granted summary judgment in favor

of the School District. The court concluded, as relevant here,

that: (1) the School District's FMLA eligibility and designation

notices were indeed both inadequate and untimely, but Bellone had

failed to demonstrate that he suffered any harm from the lack of

notice; and (2) the School District's request for a medical opinion

as to Bellone's ability to return to work constituted neither

interference with his FMLA rights nor retaliation.6 Bellone v.

Southwick-Tolland Reg'l Sch. Dist., 915 F. Supp. 2d 187 (D. Mass.

2013). This appeal followed.

II. Analysis

Our review is de novo. See McArdle v. Town of

Dracut/Dracut Pub. Sch., 732 F.3d 29, 32 (1st Cir. 2013). Summary

judgment is appropriate "if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(a).

6 Bellone has not challenged the district court's grant of

summary judgment with respect to either of his retaliation claims,

so we do not address them here. 

-7-
Under the FMLA, an eligible employee is guaranteed twelve

weeks of unpaid leave during any twelve-month period for, among

other things, a serious medical condition that renders the employee

unable to perform his job duties. 29 U.S.C. § 2612(a)(1)(D). It

is "unlawful for any employer to interfere with, restrain, or deny

the exercise of or the attempt to exercise, any right provided [by

the FMLA]." Id. § 2615(a)(1). According to the Labor Department

regulations that accompany the FMLA, when an 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 within five business days, absent

extenuating circumstances." 29 C.F.R. § 825.300(b)(1). This is

known as an eligibility notice. Once the employer "has enough

information to determine whether the leave is being taken for a[n]

FMLA–qualifying reason (e.g., after receiving a certification), the

employer must notify the employee whether the leave will be

designated and will be counted as FMLA leave within five business

days absent extenuating circumstances." Id. § 825.300(d)(1). This

is known as a designation notice.

Here, the district court concluded that the March 24,

2010 eligibility notice and the July 9, 2010 designation notice

were both untimely, and that the eligibility notice was also

inadequate, as it did not contain any of the information required

by 29 C.F.R. § 825.300(b)(2) and (c). Bellone, 915 F. Supp. 2d at

-8-
194-95. The School District has not challenged those findings, so

we accept them as correct for purposes of this appeal.

Nor has the School District challenged the validity of

the Labor Department regulations, which provide that an employer's

failure to follow the FMLA notice requirements "may constitute an

interference with, restraint, or denial of the exercise of an

employee's FMLA rights." 29 C.F.R. § 825.300(e). Late or

inadequate notices, however, are not actionable unless they harm

the employee. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S.

81, 90-91 (2002); McArdle, 732 F.3d at 34-35; Dube v. J.P. Morgan

Investor Servs., 201 F. App'x 786, 788 (1st Cir. 2006) (per

curiam). The harm Bellone claims is that he could have structured

his leave differently in order to preserve some of his FMLA

entitlement if the School District had given him the proper notice. 

See Ragsdale, 535 U.S. at 91; McArdle, 732 F.3d at 34; Dube, 201 F.

App'x at 788.

We agree with the district court that Bellone has

demonstrated no genuine dispute of material fact that would support

a finding that he suffered harm as a result of the School

District's late and inadequate notices. The record shows that

Bellone went out on leave on March 4, 2010,7 and, from that point

7

 Bellone argues that the exact start date of his FMLA leave

is a genuine issue of material fact, but he does not dispute that

he stopped coming to work on March 4, 2010, used more than twelve

weeks of leave, and did not inform the School District until August

30, 2010 that he was able to return to work. What Bellone seems to

-9-
through the end of the academic year on June 21, 2010, the School

District received regular communications from Dr. Pugach stating

that Bellone was medically unable to work. Indeed, there is no

affirmative evidence that Bellone was fit to return to work until

August 30, 2010, which is when psychologist Robert Wing submitted

his letter, stating that he saw "no psychological reasons why

[Bellone] should not return to work at the beginning of the new

academic year." Once the School District put forward evidence that

Bellone could not have structured his leave differently, the burden

was on Bellone to "offer 'definite, competent evidence to rebut the

motion.'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st

Cir. 2009) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991)); see Fed. R. Civ. P. 56(c)(1).

Yet Bellone presented no evidence whatsoever to

contradict the notes from Dr. Pugach. He simply made unsupported

statements in his amended complaint, which he repeated in his brief

opposing the School District's summary judgment motion, that, had

he known that his leave would count toward his FMLA entitlement, he

could have preserved some of that leave by modifying his medical

treatment, requesting a workplace accommodation or intermittent

be suggesting is that his leave should not have started counting

toward his FMLA entitlement until the School District provided the

proper notice. That, however, is not the governing rule. See

Ragsdale, 535 U.S. at 84 (striking down a Labor Department

regulation that provided that, if an employer did not properly

designate a particular leave period as FMLA leave, it would not

count toward the employee's FMLA entitlement). 

-10-
leave, or returning to work earlier. Our case law is clear that,

in the summary judgment context, a "nonmovant may not rest upon

mere allegations in, say, an unverified complaint or lawyer's

brief," Kelly v. United States, 924 F.2d 355, 357 (1st Cir. 1991),

nor upon "denials of [the movant's] pleading, but must set forth

specific facts showing that there is a genuine issue of material

fact as to each issue upon which he would bear the ultimate burden

of proof at trial," Sensing v. Outback Steakhouse of Fla., LLC, 575

F.3d 145, 152 (1st Cir. 2009) (citation and internal quotation

marks omitted) (alteration in original); see also Rivera-Colón v.

Mills, 635 F.3d 9, 12 (1st Cir. 2011) ("Unsupported allegations and

speculation do not demonstrate either entitlement to summary

judgment or the existence of a genuine issue of material fact

sufficient to defeat summary judgment."). Bellone did not satisfy

that burden, nor did he demonstrate, "by affidavit or declaration

that, for specified reasons," he could not "present facts essential

to justify" his opposition to the summary judgment motion. Fed. R.

Civ. P. 56(d).

Bellone's burden to present evidence that it would have

been medically possible for him to structure his leave differently

distinguishes his case from Conoshenti v. Public Service Electric

& Gas Co., 364 F.3d 135 (3d Cir. 2004), upon which he relies. In

Conoshenti, as in this case, the defendant employer did not provide

the requisite FMLA notice. Id. at 143. Part of the leave

-11-
Conoshenti had taken was due to a shoulder surgery, which he

insisted he could have scheduled differently in order to preserve

some of his leave time, had he known about his FMLA rights. Id. at

145 n.8. The Third Circuit reversed a grant of summary judgment in

favor of Conoshenti's employer, emphasizing that the employer had

"never asserted that Conoshenti could not meet his burden of

proving that he could have structured his leave differently" and

thus "did not satisfy its initial burden of pointing to an absence

of evidence as to whether Conoshenti had been prejudiced." Id. at

146. "Conoshenti was therefore not required . . . to respond with

specific facts establishing a genuine issue with respect to the

prejudice requirement." Id. Here, on the other hand, the School

District came forward with affirmative evidence demonstrating that

Bellone was unable to return to work before the end of the academic

year. At that point, it was up to Bellone to establish a genuine

issue for trial by presenting more than just a bare allegation that

he could have done things differently if he had known that his

leave would count toward his FMLA entitlement. 

 The district court thus properly treated as undisputed

the fact that Bellone could not have returned to work before the

expiration of his FMLA leave. See Fed. R. Civ. P. 56(e)(2). "In

short, nothing was lost, nor was any harm suffered, by reason of

the alleged violations," McArdle, 732 F.3d at 35, and summary

judgment was appropriate with respect to Bellone's notice claim. 

-12-
Bellone's failure of production also dooms his claim that

the School District violated the FMLA's requirement that a covered

employee returning from leave be restored to his previous position,

29 U.S.C. § 2614(a)(1)(A), or "to an equivalent position with

equivalent employment benefits, pay, and other terms and conditions

of employment," id. § 2614(a)(1)(B); see also 29 C.F.R. § 825.215

(defining the phrase "equivalent position"). We have held that an

employee is not entitled to reinstatement under the FMLA if he is

unable to return to work until after the expiration of his leave. 

Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332

(1st Cir. 2005); see 29 C.F.R. § 825.216(c). The undisputed facts

in this case demonstrate that Bellone went out on leave on March 4,

2010 and was medically unable to return to work before at least the

end of the academic year on June 21, 2010. That was a leave period

of about fifteen weeks -- more than the twelve weeks guaranteed to

Bellone under the FMLA. We therefore need not address whether the

new position to which Bellone was assigned in the fall of 2010 was

equivalent to his old one within the meaning of the FMLA. See

Colburn, 429 F.3d at 332. The School District's failure to provide

timely notice does not salvage Bellone's reinstatement argument,

since he has not demonstrated that he could have returned to work

within the FMLA period even if the School District had properly

notified him of his rights. See Sarno v. Douglas Elliman-Gibbons

& Ives, Inc., 183 F.3d 155, 161-62 (2d Cir. 1999) (assuming that

-13-
employer did not provide proper notice to employee of his FMLA

rights but nonetheless finding no right to reinstatement where

undisputed evidence demonstrated that employee was unable to return

to work at end of leave period).

Bellone also claims that the School District did not

uniformly apply its fitness-for-duty certification requirement, see

29 U.S.C. § 2614(a)(4), but he has failed to satisfy his summary

judgment obligation on this point as well. The School District put

forward evidence, in the form of an affidavit from the

superintendent of schools, that it consistently requires a fitnessfor-duty certification for any employee returning to work after a

serious illness. Bellone did not offer any evidence to refute that

assertion and thus has not demonstrated the existence of a genuine

factual dispute. See Sensing, 575 F.3d at 152-53; Meuser, 564 F.3d

at 515. On appeal, Bellone claims that he could not prove the

absence of a uniform policy before discovery, but he never raised

that argument in opposition to the School District's summary

judgment motion, as required by Federal Rule of Civil Procedure

56(d), so we will not consider it at this stage. See Nieves-Romero

v. United States, 715 F.3d 375, 381-82 (1st Cir. 2013).

Bellone also argues for the first time on appeal that the

district court should have analyzed his case pursuant to the FMLA's

special rules for school employees. See 29 U.S.C. § 2618; 29

C.F.R. §§ 825.600-825.604. We find that claim forfeited as well,

-14-
since it was not raised below. See United States v. Nee, 261 F.3d

79, 86 (1st Cir. 2001). In any event, we fail to see how the

regulation that Bellone cites, 29 C.F.R. § 825.602(a)(1), would

change the analysis here. Bellone has presented no evidence that

he attempted to return to work "during the three-week period before

the end of the term," id. § 825.602(a)(1)(ii), or that he was

capable of doing so.

III. Conclusion

For the foregoing reasons, we affirm. Each party shall

bear its own costs.

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