FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 30, 2008

THOMAS K. KAHN

CLERK

 Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by *

designation. 

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 07-11196

_____________________________

D. C. Docket No. 05-00971 CV-ORL-22-KRS

ANTHONY G. MARTIN,

Plaintiff-Appellant,

versus

BREVARD COUNTY PUBLIC SCHOOLS,

an entity of the State of Florida,

Defendant-Appellee.

_________________________________________

Appeal from the United States District Court

for the Middle District of Florida 

_________________________________________

(September 30, 2008)

Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN, Circuit *

Judges.
2

PER CURIAM:

Anthony G. Martin (“Martin”) appeals the district court’s grant of summary

judgment to Brevard County Public Schools (the “School District”) on his claims

for interference and retaliation under the Family and Medical Leave Act of 1993,

29 U.S.C. §§ 2601-2654 (“FMLA”). We vacate the judgment and remand the case

for further proceedings. 

BACKGROUND

In January 2000, the School District hired Martin as a payroll supervisor. 

Martin worked for the School District on a contractual basis subject to annual

renewal by the school board. By its terms, Martin’s last contract with the School

District expired on 30 June 2004. 

During his time with the School District, Martin lived with his wife and

daughters. In late 2003, Martin’s daughter, Brittany, a student and member of the

Army Reserve, gave birth to Hannah: Martin’s granddaughter. Martin provided

Brittany and Hannah substantial financial support, furnishing them with a home,

utilities, transportation, food, money for expenses, and health insurance. 
3

Hannah’s biological father did not live in Martin’s home; Brittany was a single

mother. 

Michael Degutis, Assistant Superintendent of Finance for the School

District, was Martin’s immediate supervisor and responsible for evaluating

Martin’s performance. On Martin’s 2001 and 2002 performance reviews, he

received a “professional level” rating—the highest rating possible—in the

“Overall Evaluation” category. The following year, on his 2003 performance

review, Martin received a “professional level” rating in all ten performance

categories, including the “Overall Evaluation” category. According to the School

District, however, Martin’s later performance did not remain at this exemplary

level. 

On 19 April 2004, Degutis gave Martin an interim performance review. In

that evaluation, Martin received a “professional level” rating in three categories, a

“needs improvement” rating in five categories, and an “unsatisfactory level” rating

in two categories. Degutis also presented Martin with an improvement plan,

which afforded Martin through 1 June 2004 “to demonstrate significant progress

as outlined . . . in the improvement plan.” 

Around the same time, the Army Reserve informed Brittany that her unit

was called to active duty and would soon be deployed overseas. On 29 April
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2004, Martin submitted to the School District a written request for twelve weeks

of FMLA leave to care for Hannah beginning on 7 May 2004. Martin presented

this explanation: “Due to unforeseeable events, I have day-to-day responsibility

for caring for my granddaughter and stand ‘in loco parentis.’ These

responsibilities include caring for and financially supporting her. She is less than

12-months old . . . .” 

Degutis approved Martin’s request for FMLA leave from 7 May through 30

June but not beyond the expiration of Martin’s contract. Martin’s FMLA leave

overlapped with the period set out in Martin’s improvement plan. According to

Martin, he relied on Degutis’s approval “as proof that [he] was FMLA[-]eligible

and that [his] reasons were FMLA-qualifying.” He would not have taken leave

had it not been approved as FMLA-qualifying. 

After granting Martin FMLA leave, Degutis consulted with several senior

School District employees, including the Director of Human Resources, the

Director of Compensation/Benefits, and the Deputy Superintendent. Those people

informed Degutis that Martin’s contract with the School District, which expired on

30 June 2004, would not be renewed if FMLA leave prohibited Martin from

fulfilling his improvement plan. Degutis informed Martin of this position on 3
5

May 2004 and asked that Martin sign a statement to that effect. Martin refused to

sign. 

On 7 May 2004, Martin took FMLA leave as scheduled. But Brittany was

never deployed. Instead, she continued to attend school and to satisfy her

occasional Army Reserve obligations, just as she had done before Martin

requested FMLA leave. When Brittany was at home, Martin assisted her in

feeding and bathing Hannah and changing Hannah’s diaper. When Brittany was at

school, which occurred about four days a week for three or four hours a day and

some evenings, or was periodically away for weekend Army Reserve drills, Martin

was solely responsible for caring for Hannah. Martin continued to provide

Brittany and Hannah financial support during this period. 

While Martin was on FMLA leave, Degutis recommended to the human

resources department that Martin’s contract not be renewed. The School District

followed that recommendation. On 21 June 2004, Martin received a letter from

Degutis stating that the School District did not renew Martin’s contract because

Martin failed to complete his improvement plan. The School District concedes

that this notification was in effect a termination of Martin’s employment. Martin’s

last day with the School District was 30 June 2004. 
6

Martin sued the School District for interfering with certain of his FMLA

rights and for retaliating against him for taking FMLA leave. The School District

moved for summary judgment on Martin’s claims, which the district court granted. 

The district court concluded that Martin was not entitled to FMLA leave, as “no

reasonable jury could find that [Martin] stood in loco parentis in this situation,”

and that the School District was not estopped from challenging Martin’s in loco

parentis status. The district court, in an abundance of caution, also analyzed the

substance of Martin’s claims and concluded that they were without merit. Martin

appeals.

STANDARD OF REVIEW

We review de novo an order granting summary judgment. Drago v. Jenne,

453 F.3d 1301, 1305 (11th Cir. 2006). In doing so, we view “the evidence and all

reasonable inferences drawn from it in the light most favorable to the nonmoving

party.” Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006). We will

affirm summary judgment only if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 
7

DISCUSSION

Martin raises several issues on appeal. As an initial matter, Martin contends

that he stood in loco parentis to Hannah and was therefore entitled to FMLA leave

to care for her. But even if his leave were not FMLA-qualifying, Martin also

claims that the School District was estopped from challenging his entitlement to

that leave because the School District originally approved his leave request. In

addition, Martin points to various supposed errors in the district court’s

substantive analysis of his FMLA claims. We address each issue in turn.

A. Martin’s Entitlement to FMLA Leave

The FMLA affords an eligible employee twelve weeks of unpaid leave in

any one-year period “[b]ecause of the birth of a son or daughter of the employee

and in order to care for such son or daughter.” 29 U.S.C. § 2612(a). A son or

daughter “means a biological, adopted, or foster child, a stepchild, a legal ward, or
 The parties do not dispute that the School District is a covered employer and that Martin is an 1

eligible employee under the FMLA. 29 U.S.C. §§ 2611(2)(A), (4). 

8

a child of a person standing in loco parentis.” Id. § 2611(12). Martin sought

FMLA leave to care for Hannah on the basis of in loco parentis status. 

1

The phrase in loco parentis literally means “in the place of a parent.” 

Black’s Law Dictionary 791 (7th ed. 1999). According to its generally accepted

common law meaning, in loco parentis “refers to a person who has put himself in

the situation of a lawful parent by assuming the obligations incident to the parental

relation without going through the formalities necessary to legal adoption.” Dillon

v. Maryland-Nat’l Capital Park & Planning Comm’n, 382 F. Supp. 2d 777, 786 (D.

Md. 2005) (internal quotation marks omitted). The Department of Labor has

further defined in loco parentis under the FMLA to include persons with the “dayto-day responsibility to care for and financially support a child . . . . A biological

or legal relationship is not necessary.” 29 C.F.R. § 825.113(c)(3). 

We cannot agree with the district court that no reasonable jury could find

that Martin stood in loco parentis to Hannah while he was on FMLA leave. 

During that period, Martin provided Brittany and Hannah substantial financial

support, including a home, food, and health insurance. Martin also played a

significant role in caring for Hannah even though Brittany was never deployed
To invoke estoppel, a party must prove that: “(1) the party to be estopped misrepresented

2

material facts; (2) the party to be estopped was aware of the true facts; (3) the party to be estopped

intended that the misrepresentation be acted on or had reason to believe the party asserting the

estoppel would rely on it; (4) the party asserting the estoppel did not know, nor should it have

known, the true facts; and (5) the party asserting the estoppel reasonably and detrimentally relied on

the misrepresentation.” Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008).

9

overseas: he helped with Hannah when Brittany was at home; and he assumed

sole responsibility for Hannah when Brittany was at school or Army Reserve

drills. We cannot say as a matter of law that Martin stood in loco parentis to

Hannah; nor can we say that he did not. Martin has presented sufficient evidence

to create a genuine issue of material fact, and the district court erred in concluding

otherwise. 

Martin argues that the School District should be estopped from challenging

his entitlement to FMLA leave because it originally approved his leave request. 

Martin recognizes that this Court has not yet adopted the estoppel doctrine in the

FMLA context, but nevertheless asks us to follow the lead of other courts that

have done so. We need not accept Martin’s invitation, however; the estoppel

doctrine, as a matter of law, would not apply here in any event. 

The equitable doctrine of estoppel is invoked “to avoid injustice in

particular cases.” Heckler v. Cmty. Health Servs. of Crawford County, Inc., 104

S. Ct. 2218, 2221 (1984). A party claiming estoppel must show, among other

things, that the party to be estopped misrepresented material facts despite being 2
 Martin contends that the School District should be charged with constructive knowledge of all 3

facts relevant to whether his leave qualified under the FMLA. But Martin identifies no statute,

regulation, or case suggesting that constructive knowledge is appropriate under the facts in this case;

and we are aware of none.

10

aware of the true facts. Busby, 513 F.3d at 1326. That is not the case here. The

School District approved Martin’s request for FMLA leave based on Brittany’s

anticipated deployment overseas. When doing so, the School District did not (and

could not) know that this circumstance would never materialize and thereby call

into question Martin’s entitlement to FMLA leave. Accordingly, even if we 3

adopted the estoppel doctrine in the FMLA context—an issue on which we say

nothing—Martin could not invoke it in this case.

B. Martin’s FMLA Claims

We now turn to the substance of Martin’s interference and retaliation

claims. In doing so, we assume for the sake of discussion that Martin stood in

loco parentis to Hannah and was therefore entitled to FMLA leave to care for her.
11

1. Interference Claim

To prove FMLA interference, an employee must demonstrate that he was

denied a benefit to which he was entitled under the FMLA. 29 U.S.C. §

2615(a)(1); Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d

1199, 1206-07 (11th Cir. 2001). An employee need not “allege that his employer

intended to deny the right; the employer’s motives are irrelevant.” Strickland, 239

F.3d at 1208. Although Martin claims that the School District interfered with

several of his substantive FMLA rights, we see only one that can survive summary

judgment.

An employee has the right following FMLA leave “to be restored by the

employer to the position of employment held by the employee when the leave

commenced” or to an equivalent position. 29 U.S.C. § 2614(a)(1)(A); see also 29

C.F.R. § 825.214(a). But this right is not absolute; an employer can deny

reinstatement “if it can demonstrate that it would have discharged the employee

had he not been on FMLA leave.” Strickland, 239 F.3d at 1208; see also 29

U.S.C. § 2614(a)(3); 29 C.F.R. § 825.216(a); Parris v. Miami Herald Publ’g Co.,

216 F.3d 1298, 1301 n.1 (11th Cir. 2000) (employer that interferes with

employee’s right to reinstatement “bears the burden of proving that the employee
 Martin cannot use the FMLA to circumvent his improvement plan; if reinstated, he just would 4

have three-plus weeks of employment either to fulfill that plan or to face termination. See 29 U.S.C.

§ 2614(a)(3)(B) (employee not entitled to “any right, benefit, or position of employment other than

[that] to which the employee would have been entitled had the employee not taken the leave”); 29

C.F.R. § 825.216(a) (“An employee has no greater right . . . to other benefits and conditions of

employment than if the employee had been continuously employed during the FMLA leave period.”).

 The School District does not argue that Martin’s right to reinstatement is precluded under 29 5

C.F.R. § 825.216(b), which denies an employee hired “for a specific term” the right to reinstatement

“if the employment term . . . is over . . . and the employer would not otherwise have continued to

employ the employee.” But even if it did, that regulation would not support summary judgment.

The School District fails to show beyond dispute that it would have severed its relationship with

Martin had he not taken FMLA leave.

12

would have been laid off during the FMLA period for reasons unrelated to the

[FMLA leave], and therefore is not entitled to restoration”).

Martin contends that the School District interfered with his right to

reinstatement by not renewing his contract. In response, the School District 4

argues that it terminated Martin for a reason wholly unrelated to his FMLA leave:

failure to fulfill his improvement plan. Even if that reason is true, however, the

record does not establish beyond dispute that the School District would have

discharged Martin had he not taken FMLA leave. In fact, the record is unclear: 

whether Martin would have been retained and his contract renewed if he had been

able to complete the final three-plus weeks of his improvement plan is a matter of

speculation. Martin was unable to complete the plan as a result of his being—at 5

least arguably—on proper FMLA leave. A genuine issue of material fact remains
 Martin argues that the School District’s 21 June 2004 representation to him that it was 6

terminating his employment because he did not fulfill his improvement plan on account of taking

FMLA leave is direct evidence of retaliatory intent. Because Martin has presented sufficient

circumstantial evidence of retaliatory intent to survive summary judgment, we decline to reach the

question of whether direct evidence is in this case. 

13

concerning Martin’s claim that the School District interfered with his right to

reinstatement. Summary judgment was not proper.

2. Retaliation Claim

To prove FMLA retaliation, an employee must show that his employer

intentionally discriminated against him for exercising an FMLA right. See 29

U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(c). Unlike an interference claim, an

employee “bringing a retaliation claim faces the increased burden of showing that

his employer’s actions were motivated by an impermissible retaliatory or

discriminatory animus.” Strickland, 239 F.3d at 1207 (internal quotation marks

omitted). Martin alleges that the School District retaliated against him for taking

FMLA leave by terminating his employment.

Absent direct evidence of retaliatory intent, we apply the burden-shifting 6

framework established in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817

(1973). Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 798 (11th Cir.
14

2000). Under that approach, an employee claiming FMLA retaliation must show

that (1) he engaged in statutorily protected activity, (2) he suffered an adverse

employment decision, and (3) the decision was causally related to the protected

activity. Id.

Once the employee establishes a prima facie case of retaliation, the burden

shifts to the employer “to articulate a legitimate reason for the adverse action.” 

Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.

2006). If the employer does so, the employee must then show that the employer’s

proffered reason was pretextual by presenting evidence “sufficient to permit a

reasonable factfinder to conclude that the reasons given by the employer were not

the real reasons for the adverse employment decision.” Id. at 1298 (internal

quotation marks omitted). The employee may rely on evidence that he already

produced to establish his prima facie case. Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997); Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,

921 (11th Cir. 1993). 

 

Martin easily demonstrates a prima facie case of retaliation. In fact, the

School District challenges only the causal relation between Martin’s FMLA leave

and termination. But the close temporal proximity between the two—Martin was

terminated while on FMLA leave—is more than sufficient to create a genuine
15

issue of material fact of causal connection. Hurlbert, 439 F.3d at 1298. To prevail

on summary judgment, therefore, the School District must present a legitimate,

non-retaliatory reason for terminating Martin: a reason that no reasonable jury

could conclude was pretextual. The School District has not met this high standard.

The School District contends that Martin was terminated because he failed

to fulfill his improvement plan, not because he took FMLA leave. The School

District says, in effect, that it was not hostile to FMLA-leave taking but rather

indifferent to it: a subtle distinction, yet a legitimate, non-retaliatory explanation. 

Intent is at issue. And the record contains evidence on which reasonable minds

could find pretext, including the School District’s warning to Martin about the

ramifications of his taking FMLA leave and the close temporal proximity between

Martin’s FMLA leave and termination. Although the School District’s

explanation may ultimately prove true, a genuine dispute of material fact

nonetheless remains. Summary judgment was not appropriate.

CONCLUSION

We VACATE the district court’s judgment and REMAND the case for

further proceedings.

VACATED and REMANDED.
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KRAVITCH, Circuit Judge, specially concurring:

I agree with the majority’s opinion vacating the summary judgment and

remanding to the district court. I write this special concurrence to address

Martin’s interference claim. Although I reach the same conclusion as the majority

that summary judgment on Martin’s interference claim was improper, I do so for

different reasons. 

It is undisputed that Martin was unable to fulfill his improvement plan on

account of his leave and that the main reason he was not rehired was because he

was unable to complete the plan. The question, therefore, is whether an employer

must give an employee additional time after returning from leave to improve his

prior poor performance through an established improvement plan where the

employee was on a form of probation before taking leave. 

The FMLA regulations provide that “[i]f an employee is no longer qualified

for the position because of the employee’s inability to attend a necessary course,

renew a license, fly a minimum number of hours, etc., as a result of the leave, the

employee shall be given a reasonable opportunity to fulfill those conditions upon

return to work.” 29 C.F.R. § 825.215(b). This raises the question of whether the

completion of a program to demonstrate improvement is the type of qualification

program that an employee is entitled to complete after leave or whether it is a
 Additionally, the district court erred in finding that Martin’s rights pursuant to FMLA were not 1

violated because they were extinguished when his year-to-year employment contract ended. The

School District’s counsel stipulated that “contract non-renewal” is the same thing as “termination”

for the purposes of FMLA.

17

privilege that an employer may withdraw if incompatible with FMLA leave. 

Under the circumstances of this case, I believe that it is analogous to the

qualification programs discussed in the regulations. See id. Martin’s superior,

Degutis, approved Martin’s leave request, but then informed him that taking the

leave would prevent him from completing the improvement plan and directly

result in the non-renewal of his contract. Thus, the FMLA leave prevented Martin

from completing a program required for contract renewal. The School District,

therefore, interfered with Martin’s rights under FMLA to take approved leave by

not re-hiring him on account of his inability to complete the improvement plan.

1

The School District correctly points out that FMLA provides no greater

protection against termination unrelated to FMLA leave than the employee would

have had if he had not requested leave. 29 C.F.R. § 825.216(a); see Gunnell v.

Utah Valley State College, 152 F.3d 1253, 1262 (10th Cir. 1998). This rule

applies, however, where the reason is unrelated to the FMLA leave. See e.g.

O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1355 (11th Cir. 2000)

(involving termination of an employee on FMLA because of legitimate company

down-sizing). Here, Martin’s termination was not unrelated to his leave because
18

the reason he was unable to complete the required improvement plan was that he

was on FMLA leave.

Because I feel that Martin established that the School District interfered

with his rights under FMLA, I agree with the majority that the district court’s grant

of summary judgment for the School District on the interference claim was

improper.