KRAVITCH, Senior Circuit Judge:
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.
In March 1995, O'Connor entered the employ of PCA as an Account Executive in
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.
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 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
A. CASE NO. 97-5879: THE FMLA SUIT
The FMLA provides that an "eligible employee"
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).
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."
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, 996-97 (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,
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 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.
After fully considering O'Connor's interference claim, we agree with the district
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, 59 L.Ed.2d 210 (1979). Res judicata thus precludes claims which a plaintiff actually raised or could have 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 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
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.
The judgment of the district court in each case is hereby AFFIRMED.