United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1253

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Jason Scott Hearst, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Progressive Foam Technologies, Inc.; *

Bill Larman, *

*

Appellees. *

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Submitted: January 11, 2011

Filed: June 8, 2011

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Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.

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WOLLMAN, Circuit Judge.

On May 1, 2007, Progressive Foam Technologies (PFT) fired Jason Hearst for

job abandonment. Hearst—who had been on a medical leave of absence from PFT for

nearly four months—filed this lawsuit against PFT and its Human Resources Director,

Bill Larman (hereinafter, collectively, PFT), alleging violations of the Family and

Medical Leave Act (FMLA), see 29 U.S.C. § 2612(a)(1), and the benefits-termination

notice provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA),
see 29 U.S.C. § 1166(a)(4)(A). Hearst appeals from the district court’s1

 grant of

summary judgment to PFT on each of his claims. We affirm.

I. 

From March 15, 2006, until May 1, 2007, Hearst was an employee of PFT. In

December 2006, Hearst was injured in a non-work-related motor-vehicle accident. 

The accident left Hearst in considerable pain, for which he sought treatment in early

January 2007. He also requested, and was granted, a leave of absence from PFT

scheduled to begin on January 3, 2007, and end on February 5, 2007. A memorandum

from PFT to Hearst dated January 3, 2007, informed Hearst that he was “eligible for

leave under the FMLA” and that the “requested leave [would] be counted against

[Hearst’s] annual FMLA leave entitlement.” Appellant’s App. at 87.

Hearst’s recovery lasted far longer than anticipated. Hearst’s physician initially

recommended that he not return to work for three weeks, id. at 60, but when his

condition had not improved by mid-January, recommended that he not return for an

additional four weeks, id. at 66. Then, in a letter dated February 21, 2007, another of

Hearst’s physicians informed PFT that Hearst had undergone two surgical procedures

on February 6, 2007, and that he would be unable to return to work until April 10,

2007, “to allow for proper healing.” Id. at 67. An undated letter followed, which read

in part: “Mr. Hearst is released to return to work on April 10, 2007. NO

EXEPTIONS!! [sic].” Id. at 71. 

On March 16, 2007, PFT sent a letter to Hearst informing him “that as of

3/28/07 [his] 12 weeks of leave under the federal Family and Medical Leave Act will

be exhausted.” Id. at 72. It went on:

1

The Honorable Billy Roy Wilson, formerly William R. Wilson, Jr., United

States District Judge for the Eastern District of Arkansas.

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In accordance with our FMLA policy and as is permitted by FMLA

regulations, we require all employees on leave to provide notice of their

intent to return to work. We have received a notice from your physician

that you would not be able to return to work till 4/10/07. Progressive

Foam Technologies is extending your leave an additional 30 days after

the end of your FMLA. If we do not hear from you regarding a specific

return to work date, we are assuming you will not be returning to work

in the foreseeable future.

Id. 

On March 29, 2007, Hearst’s physician sent PFT another letter, advising that

Hearst had undergone another surgery and again revising Hearst’s return-to-work

date, this time to April 23, 2007. Id. at 76. He also noted that Hearst would be

evaluated again on April 9, 2007, at which point a final determination would be made

regarding his ability to return to work. Following that reevaluation, Hearst’s

physician once more revised his return-to-work date, to May 1, 2007.

When Hearst failed to report to work on May 1, 2007, PFT fired him for “job

abandonment” and terminated his benefits. Id. at 78. The termination letter recited

that the March 16, 2007, extension to Hearst’s leave of absence had been exhausted

and that Hearst had “not made contact with Progressive Foam Technologies to inform

[it] of [his] status to return to work.” Id. Still, on May 15, 2007, Hearst’s physician

sent a fax to PFT advising that Hearst could not return to work for two additional

months. Id. at 80. In late June 2007, Hearst’s physician concluded there was nothing

more he could do for Hearst, noting: “I will be dismissing myself from his care as I

realistically have nothing else to offer at this point.” Id. at 159. He did, however,

provide Hearst with a letter proscribing any return to work for another three months. 

Id. at 160. 

Hearst sued PFT, alleging that PFT (1) interfered with his right to twelve weeks

of FMLA leave when it fired him on May 1, 2007, less than seven weeks after he first

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became eligible for that leave and (2) retaliated against him for his use of FMLA

leave. He also claimed that PFT failed to provide him with notice of the termination

of his benefits as required by COBRA. The district court, concluding that there was

no genuine dispute of any material fact, granted summary judgment to PFT on each

claim. 

With respect to Hearst’s interference claim, the district court concluded that

Hearst had exhausted his twelve-week FMLA-leave entitlement on March 28, 2007,

twelve weeks from the beginning of his leave on January 3, 2007. To arrive at that

date, the district court counted all of Hearst’s leave as FMLA leave, including the

leave taken prior to Hearst’s one-year anniversary date of March 15, 2007. In the

district court’s view, Hearst first became eligible for FMLA leave on March 15, 2007,

at which point PFT was permitted to count Hearst’s previously taken leave as FMLA

leave. Therefore, it reasoned, the FMLA provided no protection to Hearst after March

28, 2007. The district court further concluded that Hearst’s failure to notify PFT that

he would be unable to return to work on May 1, 2007, violated PFT’s leave-ofabsence policy and provided PFT with an independent basis to fire Hearst. Finally,

the district court concluded that even if Hearst was entitled to FMLA leave until midJune 2007, as he had argued, he was not prejudiced by the May 1, 2007, firing because

he had failed to show that he would have been able to return to work before July 15,

2007, at the earliest.

The district court similarly rejected Hearst’s retaliation claim, hypothesizing

that even if Hearst could make out a prima facie case of retaliation, he had produced

nothing suggesting that PFT’s stated reason for the firing—Hearst’s failure to comply

with PFT’s leave-of-absence policy requiring Hearst to notify PFT of changes to his

return-to-work date—was pretext for retaliation.2

2

Although Hearst requests us to “vacate the judgment and remand this case for

trial,” he does not assign as error this conclusion of the district court, nor does he

argue, even in passing, that the district court’s analysis of this claim was flawed. We

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Finally, the district court concluded that PFT had sufficiently demonstrated that

Hearst was mailed notice of his termination of benefits in accordance with COBRA

and that Hearst had failed to show any genuine dispute regarding that fact.

II.

“We review a district court’s grant of summary judgment de novo, considering

all evidence in a light most favorable to the nonmoving party.” Brandt v. Davis, 191

F.3d 887, 891 (8th Cir. 1999). “Summary judgment is properly granted when the

record, viewed in the light most favorable to the nonmoving party, shows that there

is no genuine issue of material fact, and the moving party is entitled to judgment as

a matter of law.” Id. “We may uphold a grant of summary judgment for any reason

supported by the record, even if different from the reasons given by the district court.” 

Id.

The FMLA provides that, among other things, an “eligible employee shall be

entitled to a total of 12 workweeks of leave during any 12-month period for . . . a

serious health condition that makes the employee unable to perform the functions of

the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). An employee is

“eligible” when he, again, among other things, has been employed “for at least 12

months by the employer with respect to whom leave is requested.” 29 U.S.C.

§ 2611(2)(A)(i). 

On this much the parties agree: When PFT granted Hearst leave for his medical

condition on January 3, 2007, Hearst—who at that time had been a PFT employee for

fewer than ten months—was not yet eligible for FMLA leave. Yet PFT mistakenly

therefore consider any arguments with respect to this claim to be waived. 

See Rotskoff v. Cooley, 438 F.3d 852, 854-55 (8th Cir. 2006).

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told Hearst that he was eligible for FMLA leave. It also told Hearst that his requested

leave would be counted against his FMLA-leave entitlement. As a result, on March

15, 2007—Hearst’s one-year anniversary date and therefore the date on which he

would ordinarily have become eligible for FMLA leave—Hearst had already been on

leave (designated as FMLA leave by his employer) for more than ten weeks.

The question we are called upon to answer, then, is what to make of these ten

weeks of leave prior to March 15, 2007. Hearst argues, as he did below, that because

he was ineligible for FMLA leave prior to March 15, 2007, none of those weeks can

be counted against his twelve-week FMLA entitlement. If Hearst is correct, then his

FMLA entitlement ran twelve weeks from March 15, 2007, until mid-June, and

therefore his firing on May 1, 2007, interfered with that entitlement.

PFT sees things differently. It argues that the ten weeks of leave prior to March

15, 2007, count toward Hearst’s FMLA entitlement even though he was not eligible

for FMLA leave during that period. If PFT is correct, then Hearst’s FMLA

entitlement ran twelve weeks from January 3, 2007, until late March, and therefore his

firing on May 1, 2007, did not interfere with that entitlement.

While this may be a “unique question,” Appellant’s Br. at 7, we need not

answer it today. Going beyond its ruling that Hearst’s initial ten weeks of leave

counted toward his FMLA entitlement, the district court further concluded that Hearst

had failed to demonstrate that he had been prejudiced by the firing. In Ragsdale v.

Wolverine World Wide, Inc., the Supreme Court invalidated a Department of Labor

regulation on the ground that it “alter[ed] the FMLA’s cause of action in a

fundamental way: It relieve[d] employees of the burden of proving any real

impairment of their rights and resulting prejudice.” 535 U.S. 81, 90 (2002). 

Prejudice, the Court wrote, was a prerequisite to relief under the FMLA. Id. at 89; see

29 U.S.C. § 2617(a)(1)(A). And because the employee-plaintiff in Ragsdale had a

“medical condition [which] rendered her unable to work for substantially longer than

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the FMLA twelve-week period,” she could not show that she had been prejudiced by

her employer’s failure to provide notice that it was counting part of her thirty weeks

of leave as FMLA leave. 535 U.S. at 90. 

Similarly, Hearst had a medical condition rendering him unable to work for

substantially longer than the FMLA twelve-week period. This conclusion holds

whether we count twelve weeks from January 3, 2007 (taking us to late March), or

instead count twelve weeks from March 15, 2007 (taking us to mid-June). That is,

even if we were to conclude, as Hearst urges, that his FMLA twelve-week period

expired in mid-June 2007, Hearst would still need to show that he could have returned

to work at that time. This he has not done and, in light of his physician’s May 15,

2007, and June 2007 revisions to his return-to-work date, could not do. Therefore,

Hearst failed to demonstrate any prejudice as a result of his firing on May 1, 2007, and

the district court properly granted summary judgment to PFT on Hearst’s interference

claim.3

III.

Hearst’s remaining argument—that a factual dispute precluded summary

judgment on his COBRA claim—also fails. COBRA “requires the administrators of

covered group health plans to notify terminated employees that they have the option

of continuing their benefits after their employment ends.” Crotty v. Dakotacare

3

At oral argument, for the first time in this appeal, Hearst’s counsel argued that

Hearst was prejudiced by the cancellation of his health insurance upon his firing

because Hearst was then required to incur the cost of a surgery without the benefit of

insurance. Neither this, nor any other, argument regarding prejudice was made in

Hearst’s brief and we do not consider issues not first raised in a party’s opening brief. 

Fair v. Norris, 480 F.3d 865, 869 (8th Cir. 2007). In any event, Hearst’s counsel later

conceded that Hearst failed to develop any record on this point in the district court

and, what’s more, did not in fact have any surgery between the date of his firing and

the date Hearst argues his FMLA-leave ended.

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Admin. Servs., Inc., 455 F.3d 828, 829 (8th Cir. 2006); see 29 U.S.C. § 1166(a)(4)(A). 

“Although § 1166(a)(4)(A) does not specify what steps should be taken to notify the

plan participant, we have said that a good faith attempt to comply with a reasonable

interpretation of the statute is sufficient.” Crotty, 455 F.3d at 830 (internal quotation

marks omitted). Indeed, “the statute does not require proof of actual notice, so long

as the administrator has sent the notice by means reasonably calculated to reach the

recipient.” Id. 

Hearst and PFT agree that PFT bears the burden of proving that it “sent the

notice by means reasonably calculated to reach the recipient.” Id. In an effort to

discharge that burden, PFT presented to the district court an affidavit from its thirdparty COBRA administrator explaining its usual method of providing notice to a

terminated employee. The administrator further described how this usual method was

used to provide notice to Hearst upon his termination, specifically, (1) that on April

30, 2007, it had “received notification of a qualifying event” regarding Hearst, (2) that

on May 2, 2007, an “election notice addressed to Jason Hearst was generated, printed

and placed in an envelope addressed to Mr. Hearst,” and (3) that “the election notice

was mailed to Jason Hearst on May 3, 2007,” as indicated by the post office’s stamp

on the administrator’s mailing manifest, which was applied after “the post office clerk

verified that the envelope addressed to Mr. Hearst was in fact mailed and that the

name and the address on the envelope matched the name and address on the manifest.” 

Appellant’s App. at 170. Copies of the letter and the manifest bearing the post

office’s stamp were attached to that affidavit. PFT thus produced evidence not only

of its usual COBRA-notice practices, but also of its use of those practices to notice

Hearst. Cf. Crotty, 455 F.3d at 831 (“In the cases that Dakotacare cites, the

administrator presented some evidence tending to show that the notice in question was

in fact mailed. . . . All of these cases involved evidence not only that the employer had

a system for sending out the required notices, but also that the system was in fact

followed with respect to the person in question.”). 

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Hearst responds as he did below, pointing to affidavits from both himself and

his wife in which they claim never to have received the notice. But claiming merely

that the notice was never received did not, by itself, create a genuine dispute about any

material issue of fact. The issue was not whether Hearst received the notice, but rather

whether PFT “sent the notice by means reasonably calculated to reach the recipient.” 

Crotty, 455 F.3d at 830. Therefore, to survive PFT’s properly supported motion for

summary judgment, Hearst needed to show—by use of “the pleadings, the discovery

and disclosure materials on file, and any affidavits,” Fed. R. Civ. P. 56(c)4

—that a

genuine factual dispute existed regarding the means used by PFT to send the notice. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed. R. Civ. P. 56(e)(2). 

Because he did not do so, and because the undisputed facts show that PFT used a

notice method “reasonably calculated to reach” Hearst, the district court properly

granted summary judgment to PFT on this claim.

IV.

The judgment is affirmed.

______________________________

4

This was the formulation of Rule 56(c) at the time the district court granted

summary judgment to PFT. Effective December 1, 2010, Rule 56(c) was amended to

list explicitly some of the materials that may be used to support an “asserti[on] that

a fact . . . is genuinely disputed.” Fed. R. Civ. P. 56(c)(1)(A). Those include: 

“depositions, documents, electronically stored information, affidavits or declarations,

stipulations[,] . . . admissions, interrogatory answers, or other materials.” Id.

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