Breeden v. Novartis Pharmaceuticals Corp.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 10, 2011 Decided July 8, 2011

No. 10-7073

MARY KATE BREEDEN,
APPELLANT

v.

NOVARTIS PHARMACEUTICALS CORPORATION,
APPELLEE

Consolidated with 10-7078

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00625)

Adam Augustine Carter argued the cause for the
appellant/cross appellee. R. Scott Oswald was on brief.
Sally Dworak-Fisher was on brief for amici curiae Public
Justice Center, National Partnership for Women & Families and
Equal Rights Advocates in support of the appellant.
Daniel B. Kohrman and Melvin Radowitz were on brief for
amici curiae National Employment Lawyers Association and
AARP in support of the cross-appellee. Stephen Z. Chertkof
entered an appearance.
 2

Rachel Goldberg, Attorney, United States Department of
Labor, argued the cause for amicus curiae Secretary of Labor in
support of the appellant.
Catherine E. Stetson argued the cause for the appellee/cross
appellant. Jessica L. Ellsworth was on brief. Aaron R. Gelb,
David M. Hernandez and Mark L. Stolzenburg entered
appearances.
Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Mary
Breeden (Breeden) sued her former employer Novartis
Pharmaceuticals Corporation (Novartis) alleging violations of
the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601
et seq. The district court granted summary judgment in favor of
Novartis on Breeden’s interference claim and entered a
judgment as a matter of law on her retaliation claim. Breeden
appeals both the summary judgment and the judgment as a
matter of law. Novartis conditionally cross-appeals the district
court’s mixed-motive jury instruction, arguing that the FMLA
does not permit a mixed-motive claim. For the following
reasons, we affirm the district court in full and do not reach
Novartis’s conditional cross-appeal.
I.
Novartis hired Breeden in 2000 as an Associate Transplant
Specialist in its Transplant Business Unit (TBU). Her title later
changed to Transplant Account Manager (TAM) but her job
remained the same. The TBU sells products designed to help
prevent an organ transplant recipient’s body from rejecting the
new organ. As a TAM, Breeden’s job was to persuade doctors
and hospitals to use Novartis products.
 3

TBU management restructured the sales force in 2003 to
focus more closely on the medical centers performing the most
organ transplants and thus having the greatest influence in the
prescription of transplant drugs. As part of the restructuring,
Novartis transferred three of Breeden’s Virginia accounts to
another TAM—Ruth Ann Sneith (Sneith)—and gave Breeden
three new accounts—Johns Hopkins and the University of
Maryland, both in Baltimore, Maryland, and the Alfred I.
duPont Children’s Hospital in Wilmington, Delaware. Breeden
was “thrilled” with the realignment because she viewed Johns
Hopkins and the University of Maryland as “great centers.”
Breeden Dep. 38-39. Despite her excitement with the 2003
realignment, her performance did not improve. She was the
25th-rated TBU sales representative—out of 26—in 2002. Id.
at 59. In 2003, she was the lowest-rated TBU sales
representative—26th out of 26—and received a “below
expectations” rating of her sales performance. Id. at 59-60; Trial
Tr. 104, Breeden v. Novartis Pharm. Corp., 714 F. Supp. 2d 33
(D.D.C. 2010) (Breeden II) (No. 08-625 Mar. 1, 2010) (3/1/10
Tr.) (Breeden testimony). In 2004, she was again rated 25th out
of 26. 3/1/10 Tr. 102-03 (Breeden testimony).
In June 2004 Brian O’Callaghan (O’Callaghan), then in
charge of the TBU, accompanied Breeden on a sales call.
Breeden claimed he asked her if she had children, inquired about
her fertility treatments and asked if she planned to return to
Novartis after having children. O’Callaghan denied asking
those questions. According to him, Breeden asked about his
children and he responded, with what he believed to be “a
normal response” to her question, by asking Breeden if she had
any children. O’Callaghan Dep. 18. O’Callaghan claimed
Breeden replied that she did not have kids and “insinuated” she
could not have kids, at which point he “changed the subject and
moved on to a different conversation feeling uncomfortable.”
Id.
 4

Shortly thereafter Novartis decided to realign its TBU sales
force again and in September 2004 hired the consulting firm ZS
Associates (ZS) to develop a new sales model. In November
2004 Breeden informed Novartis she was pregnant and would
need FMLA leave beginning in March 2005. ZS presented its
realignment proposal to TBU management the next month.
During its presentation, ZS discussed “contingency plans,”
which were intended “to plan for[] something out of the
ordinary, like a vacancy that hasn’t been filled or a maternity
leave or a disability of some kind, or a promotion, for example,
in the case of M. Stillwell. He was being promoted so we needed
to fill a vacancy.” Villageliu Dep. 80.1 Breeden’s upcoming
maternity leave was one of the contingency plans discussed at
the meeting, as was the upcoming maternity leave of another
employee, Kathy Dilger. Id. at 80-81, 84-85. The PowerPoint
slide that mentioned Breeden’s maternity leave read: “M.K.
Breeden on MAT leave in 2005: Who can work with her now to
learn the accounts and then temporarily cover her key accounts
when she [is] out on maternity leave in May/June?” Id. at 80.
A ZS consultant who worked on the assignment stated that no
one gave him any reason to believe Breeden would not return
from maternity leave. Id. at 81.
ZS placed each account into a tier from I to IV and assigned
a “full-time equivalent” (FTE) value to each tier. Id. at 96. For
example, a Tier I account typically had a FTE value of .2 to .3,
meaning the TAM assigned to that account should devote 20%
or 30% of his time to that account. ZS tried to divide the
accounts so that each TAM had a FTE as close to 1.0 (100%) as
possible.
Effective January 1, 2005, TBU management assigned
Breeden nine accounts, all located in the Washington, D.C.,

1
Alejandro Villageliu worked on the TBU’s 2004/2005
realignment as a ZS consultant. Villageliu Dep. 6-8.
 5

area. Breeden no longer serviced Johns Hopkins or the
University of Maryland, both Tier I accounts, or duPont
Children’s Hospital, a Tier III account. Her new accounts
included one Tier I account, three Tier II accounts, one Tier III
account and four Tier IV accounts. In total, Breeden had a FTE
of 1.01. Breeden claimed that she objected to the realignment
during a conference call in which O’Callaghan participated.
According to Breeden, O’Callaghan responded to her objections
by “jokingly” saying “well, you’re not coming back from
maternity leave anyway, right?”. Breeden Dep. 97-101.
O’Callaghan not only denied having made that statement but
denied having participated in the conversation at all.
O’Callaghan Dep. 42 (Q: “Did you ever say anything like
[‘Well, you’re not coming back from maternity leave
anyway’]?” A: “Never.”); id. at 42-43 (“Me getting into
conversations on a teli-con with individual sales representatives
would never have happened, and that conversation never
happened.”). Breeden further claimed that both O’Callaghan
and her immediate supervisor, Tom Harper (Harper),
acknowledged she had suffered from the realignment and
promised to make her “whole” and to “compensate” her by
giving her some of her old accounts back. Breeden Dep. 126-
27, 134-37. Both O’Callaghan and Harper denied making any
such promise. O’Callaghan Dep. 43; Harper Dep. 19-20.
Sometime in 2005 Harper spoke to Breeden and Sneith about
transferring some of Sneith’s accounts to Breeden. Sneith Dep.
21-24. The record contains a table comparing the number of
transplants performed at Sneith’s accounts to the number of
transplants performed at Breeden’s accounts and describing two
possible scenarios for transferring accounts from Sneith to
Breeden. Despite the discussion, no change took place.
According to Breeden, Harper told her he would not give her
any of Sneith’s accounts because Sneith was “single.” Breeden
Dep. 158-61. Harper denied making that statement.
 6

Breeden left Novartis on maternity leave in late March
2005. She returned in July 2005, having extended her leave
through the use of vacation time and personal days. On her
return, she held the exact position she had held when she left on
maternity leave in March, with the same title, same salary, same
benefits and, significantly, the same accounts. Harper Decl.
¶ 15; Appellant’s Br. 52. Breeden then began to distinguish
herself in the TBU. Whereas before 2005 she had ranked last or
next-to-last of all TBU sales representatives, in 2005 she ranked
14th out of 25. Breeden Dep. 70-71; 3/1/10 Tr. 103. She ranked
even higher in 2006—7th out of 25. Breeden Dep. 71-73; 3/1/10
Tr. 103. She and her colleagues in her business area received an
award at a national sales meeting in 2006 for working in the top
producing business area—a far cry from the “below
expectations” rating she had received in 2003. Breeden Dep.
156-57; 3/1/10 Tr. 105. Her compensation also
increased—substantially—after the realignment.
O’Callaghan left Novartis in mid-2006 and Novartis hired
Jesus Leal (Leal) to replace him as head of the TBU. Leal hired
Powell & Associates (Powell) in 2007 to recommend further
changes to the TBU sales structure. Among other things, Powell
recommended the TBU create a new sales territory covering
Indiana and Cincinnati, Ohio. Because the TBU believed it
could not afford to hire an additional sales representative,
Powell recommended it combine Breeden’s and Sneith’s
territories into one territory and terminate either Breeden or
Sneith in order to create a sales position for the new territory in
the Midwest. Leal Aff. ¶ 4; Weinberg Decl. ¶ 5. Novartis did
not consider Breeden for the new territory. Instead it hired a
sales representative who had previously worked for a competitor
in that region and who thus had existing relationships with
accounts there. Having recently combined territories in non-
TBU sales groups, Novartis had developed written rules “on
how to combine territories and how [to] choose who is the . . .
surviving associate.” 3/2/10 Tr. (afternoon) 8-9 (testimony of
 7

Michael Barr, Novartis director of human resources). Under its
rules, Novartis retained Sneith, who had more accounts and
prescriptions in the combined territory (formerly Breeden’s and
Sneith’s separate territories). Novartis informed Breeden it was
eliminating her position in January 2008.
Breeden sued Novartis in district court in April 2008,
asserting an interference claim and a retaliation claim under the
FMLA. Her interference claim alleged that Novartis did not
give her a substantially equivalent position when she returned
from FMLA leave in July 2005. Her retaliation claim alleged
that Novartis realigned her accounts in 2005—and failed to keep
its alleged promise to make her “whole”—in retaliation for her
FMLA maternity leave. Novartis moved for summary judgment
on both claims. On February 16, 2010, the district court granted
summary judgment to Novartis on Breeden’s interference claim
but denied summary judgment on her retaliation claim. Breeden
v. Novartis Pharm. Corp., 684 F. Supp. 2d 58, 60-63 (D.D.C.
2010) (Breeden I). The district court found that Breeden’s post-
2005 realignment position was substantially equivalent to her
pre-realignment position. Specifically, the court rejected
Breeden’s assertion that her post-realignment position required
less effort or skill than her pre-realignment position because, it
concluded, “more effort and skill should be needed to wring
more sales from a smaller territory.” Id. at 61. The court also
rejected Breeden’s argument that she lost the authority to offer
customers discounts by noting that every TAM lost that
authority after the realignment. Id. The court rejected
Breeden’s claim that her new account portfolio had less “status”
or “prestige” than her previous portfolio, noting that United
States Department of Labor regulations specifically exclude
“intangible[] or unmeasurable aspects of [a] job” when
measuring the equivalence of two positions. Id. (quoting 29
C.F.R. § 825.215(f)). Although the court denied summary
judgment on Breeden’s retaliation claim, it expressed doubt that
she would ultimately prevail on the claim. The court identified
 8

“proof of damages” as the defect in her retaliation claim,
observing that it “may turn out to be insurmountable.” Id. at 63.
A. Judgment as a Matter of Law
Breeden’s retaliation claim was tried to a jury over three
days in March 2010. At the end of Breeden’s case-in-chief,
Novartis moved for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50(a). Novartis argued that
Breeden failed to show she suffered damages as a result of the
alleged retaliation, i.e., the 2005 realignment. The district court,
although “inclined to agree with [Novartis] that the proof of
causation of damages is virtually nonexistent,” nonetheless
decided to submit the question to the jury pursuant to Rule
50(b).2 3/2/10 Tr. (afternoon) 33. The court noted “that the
passage of three years, the involvement of a new consultant, the
increase in the plaintiff’s income after 2005, between 2005 and
2008 . . . interrupt, attenuate and may defeat the chain of
causation.” Id.
The jury returned a verdict for Breeden on March 5 and
awarded her $289,669 in damages. Novartis moved for
judgment as a matter of law or, in the alternative, for a new trial.
The district court granted Novartis’s motion for judgment as a
matter of law on May 26. Breeden II, 714 F. Supp. 2d at 35-37.
The court held that the FMLA’s requirement that an employee
suffer damages “by reason of” the FMLA violation requires the
employee to prove that the FMLA violation was the proximate
cause of his damages. Id. at 35-36. The court found that
Breeden’s harm—her 2008 termination—was too far removed
from the alleged retaliation—the 2005 realignment—with too

2
Under Rule 50(b), within “28 days after the entry of judgment,”
a party whose earlier motion for judgment as a matter of law under
Rule 50(a) was not granted “may file a renewed motion for judgment
as a matter of law and may include an alternative or joint request for
a new trial under Rule 59.” Fed R. Civ. P. 50(b).
 9

many intervening causes for the alleged retaliation to be the
proximate cause of her termination. Id. at 36-37. On June 1,
2010, Breeden appealed both the judgment as a matter of law
and the district court’s February 16, 2010 grant of summary
judgment to Novartis on her FMLA interference claim.
B. Mixed-Motive Cross-Appeal
In its conditional cross-appeal, Novartis argues the district
court erred by instructing the jury that it could find in favor of
Breeden on a mixed-motive theory of liability.3 Novartis

3
The mixed-motive language appears in Title VII of the Civil
Rights Act of 1964, as amended, providing that an employment
discrimination plaintiff must establish that discrimination was only “a
motivating factor for any employment practice, even though other
factors also motivated the practice.” 42 U.S.C. § 2000e-2(m)
(emphasis added); see Ginger v. District of Columbia, 527 F.3d 1340,
1345 (D.C. Cir. 2008), cert. denied, 129 S. Ct. 930 (2009). If a
plaintiff alleges that discrimination was one of multiple “motivating
factor[s]” in his employer’s decisionmaking process, the plaintiff is
said to have a “mixed-motive” claim. See Ginger, 527 F.3d at 1345.
In contrast to Title VII, the Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq., does not permit mixed-motive claims against
a private employer and requires a plaintiff to “prove, by a
preponderance of the evidence, that age was the ‘but-for’ cause of the
challenged adverse employment action.” Gross v. FBL Fin. Servs.,
Inc., 129 S. Ct. 2343, 2352 (2009). The Supreme Court has not
addressed the viability of a mixed-motive claim under the FMLA, nor
has this court.
Novartis moved in limine to preclude Breeden from arguing a
mixed-motive theory at trial but the district court held the motion in
abeyance until jury instructions. Mot. in limine on Mixed Motive,
Breeden II, 714 F. Supp. 2d 33 (No. 1:08-CV-00625 Feb. 9, 2010).
Ultimately, the court allowed Breeden’s counsel to argue a mixed-
motive theory to the jury and the district court instructed the jury that
Breeden need only establish that her taking FMLA leave was “a
 10

contends that the FMLA, like the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621 et seq., does not permit
mixed-motive claims but requires a plaintiff to prove but-for
causation. Because Novartis prevailed in the district court, its
cross-appeal is conditional only, meaning we need not reach it
if we affirm the district court on Breeden’s appeal.
II.
Breeden claims that Novartis interfered with her FMLA
rights by failing to restore her to an equivalent position when
she returned from FMLA leave in 2005 and that Novartis
retaliated against her for taking FMLA leave by giving her
smaller, less prestigious accounts in the 2005 realignment and
by refusing to reassign her to her old accounts. We address her
claims in turn.
A. Interference Claim
We review de novo the district court’s grant of summary
judgment to Novartis on Breeden’s interference claim. Sigmund
v. Starwood Urban Retail VI, LLC, 617 F.3d 512, 513 (D.C. Cir.
2010). We view the evidence in the light most favorable to
Breeden and affirm if “ ‘there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a
matter of law.’ ” Id. at 513-14 (ellipsis in original) (quoting Fed.
R. Civ. P. 56(c)).
The FMLA entitles an eligible employee, upon return from
FMLA leave, “to be restored . . . to the position of employment
held . . . when the leave commenced; or to be restored to an
equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment,” 29 U.S.C.
§ 2614(a)(1), and prohibits an employer from “interfer[ing]

motivating factor” in Novartis’s decision to realign her accounts in
2005.
 11

with, restrain[ing], or deny[ing] the exercise of or the attempt to
exercise” FMLA rights, id. § 2615(a)(1). Breeden claims
Novartis interfered with her FMLA rights by not restoring her
to an equivalent position when she returned from FMLA leave
in July 2005. The district court appears to have assumed, as
Breeden argues here, that Breeden was entitled to be restored to
a position equivalent to the one she held in 2004 rather than to
the one she held in March 2005 when she began FMLA leave.
See Breeden I, 684 F. Supp. 2d at 60-61. Although we are not
convinced that is the correct comparison, because the issue has
not been joined before us and because we believe Breeden’s
post-FMLA leave position was equivalent to her 2004 position,
we can affirm the district court assuming without deciding that
it compared the correct positions.
Department of Labor regulations clarify what constitutes an
equivalent position. “An equivalent position is one that is
virtually identical to the employee’s former position in terms of
pay, benefits and working conditions, including privileges,
perquisites and status. It must involve the same or substantially
similar duties and responsibilities, which must entail
substantially equivalent skill, effort, responsibility, and
authority.” 29 C.F.R. § 825.215(a). The equivalency analysis
does not, however, encompass “de minimis, intangible, or
unmeasurable aspects of the job.” Id. § 825.215(f). Breeden
acknowledges that she retained the same title and benefits when
she returned from FMLA leave and that her compensation
increased. She argues nonetheless “that her territory was so
drastically cut that her status, her responsibilities, her authority,
her level of effort, her job security, and her chances of
promotion were all severely and measurably diminished.”
Appellant’s Br. 52-53.4

4
Breeden urges us to define “status” as used in 29 C.F.R.
§ 825.215(a) in conformity with Department of Labor regulations
 12

Breeden first alleges that her post-realignment territory
contained “many accounts that were closed doors” because the
formularies used by those accounts locked them into using
products made by Novartis’s competitors.5 Id. at 53. Despite
her allegation that “many” accounts were closed doors she
identifies only one—the University of Virginia. If the formulary
in fact “closed doors” on Breeden, it did so only temporarily, as
evidenced by the fact that Breeden eventually convinced the
University of Virginia to add a Novartis product to its
formulary. Breeden Decl. ¶ 14; see also Breeden Dep. 115
(“They were not permanent contracts, . . . they were yearly
contracts, so the goal was to get in there and change that . . . .”);
id. at 115-16 (Breeden “could readdress [account with formulary
using competitor’s products] in a year”). Moreover, Sneith
testified that an account’s use of a formulary did not turn the
account into a closed door. See Sneith Dep. 49 (use of
competitor’s products on formulary does “not necessarily” mean
Novartis products are “not allowed to be on the formulary”).
Sneith explained that one of her accounts had a contract with a
competitor but that a nephrologist at the account preferred
Novartis products. The nephrologist used the competitor’s
products during inpatient treatment but switched the patient to
Novartis products when he discharged the patient for outpatient
treatment. Id. at 50-51. “So long-term, that patient was going
to be on [Novartis] products, but for that four-day window of

interpreting “status” under the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. § 4313(a)(2)(A)-(B),
(a)(3)(A)-(B). See 69 Fed. Reg. 56,266, 56,275 (2004). Section
825.215 defines status precisely enough for us to conclude that
Novartis restored Breeden to an equivalent position without resort to
regulations promulgated under a different statute.
5
“A formulary is essentially a list of prescription drugs preferred
by a particular health care provider or plan.” Appellee’s Br. 9 n.4.
 13

time when they were in the hospital, they were on the
competitor’s products. So in that case what the hospital did
inpatient didn’t really reflect what was going to happen moving
forward.” Id. at 51. The record therefore does not support
Breeden’s assertion that the formulary closed doors at many of
her accounts.
Breeden’s next argument, which seems to contradict her
first, claims that her post-realignment accounts required less
skill than her pre-realignment accounts “because there were
fewer decision-makers and fewer bureaucratic hoops to jump
through.” Appellant’s Br. 54. She also argues her new accounts
required less effort “because she spent significantly less time
traveling [in her car] to her new accounts.” Id. at 55. But the
number of “bureaucratic hoops” Breeden had to “jump through”
at each account is precisely the type of “intangible[] or
unmeasurable aspect[]” that we do not consider in assessing the
equivalency of positions. 29 C.F.R. § 825.215(f). Additionally,
that she spent fewer hours in her car after the realignment,
although a measurable aspect of the realignment, does not make
her post-realignment position non-equivalent to her pre-
realignment position. See Smith v. E. Baton Rouge Parish Sch.
Bd., 453 F.3d 650, 652 (5th Cir. 2006) (fact that plaintiff no
longer had to travel in new position was de minimis, intangible
difference). Breeden’s job was selling medical products, not
driving cars.
Finally, Breeden argues that she enjoyed fewer
opportunities to advance her career after the realignment
because a TAM needed large accounts like the University of
Maryland and Johns Hopkins to receive a promotion. Breeden,
however, was hardly a rising star before the 2005 realignment.
She had consistently ranked last or next-to-last among sales
representatives in the TBU and had received a “below
expectations” rating in her sales evaluation. After the
realignment, by contrast, Breeden ranked 14th out of 25 sales
 14

representatives in 2005—despite being on leave from March to
July. In 2006 she rose further to rank 7th out of 25. While
Breeden’s improved ranking may have resulted partly from the
reduced expectations and sales goals that accompanied her
smaller account portfolio, that does not alter the fact that she
a c h i e v e d s u b s t a n t i a l s u c c e s s a ft e r t h e 2 0 0 5
realignment—success she had failed to attain while servicing
larger accounts before the 2005 realignment. Drawing all
reasonable inferences in Breeden’s favor, we do not believe a
reasonable juror could conclude that Breeden’s prospects for
career advancement were greater before the 2005
realignment—when she was among the least productive TAMs
but serviced some of Novartis’s largest accounts—than they
were after the realignment—when she was among the most
productive TAMs while servicing smaller accounts. To the
contrary, common sense tells us that a salesman who fails to sell
to his employer’s largest clients will not long hold his job, much
less receive a promotion. Cf. Csicsmann v. Sallada, 211 F.
App’x 163, 166 n.3 (4th Cir. 2006) (rejecting plaintiff’s
argument “that the new position was ultimately slated for layoff
while the pre-leave position was not” because “[t]here [was]
nothing in the record to support his theory that the pre-leave
position would have survived”).
The Fourth Circuit, reviewing similar facts, held that a
plaintiff’s FMLA interference claim was properly dismissed for
failure to state a claim on which relief could be granted.
Montgomery v. Maryland, 266 F.3d 334, 341-42 (4th Cir. 2001),
judgment vacated on other ground, 535 U.S. 1075 (2002); see
Montgomery v. Maryland, 72 F. App’x 17, 19-20 (4th Cir. 2003)
(reaffirming reasoning and holding on FMLA interference
claim). The plaintiff had worked as an administrative aide to the
warden of Maryland’s Eastern Correctional Institute but, upon
returning from FMLA leave, was reassigned to a position as a
secretary in the maintenance department. 266 F.3d at 336. She
retained the same salary and benefits but argued her new
 15

position was not equivalent to her old position because her
former duties had been “truly administrative” whereas her new
position required her to perform the “most menial of clerical
functions.” Id. at 341. Additionally, she had her own work area
in her old position but shared a room with another employee in
her new position. Id. The court rejected the plaintiff’s argument
that the two positions were not equivalent, finding that her
“complaint focuse[d] on precisely the sorts of de minimis,
intangible, and unmeasurable aspects of a job that the
regulations specifically exclude.” Id. The court explained
further that “the alleged reduction in the complexity of her tasks
and the sharing of work space [fell] within the excluded de
minimis category.” Id. at 342. The difference between the
“truly administrative” tasks she used to perform and the more
menial tasks she performed in her new position was “not of
sufficient magnitude, especially given the equivalent pay grade
. . . , to constitute an FMLA violation.” Id.; see also Smith, 453
F.3d at 652 (positions equivalent where plaintiff retained same
salary and similar title and job description); Mitchell v.
Dutchmen Mfg., 389 F.3d 746, 749 (7th Cir. 2004) (positions
equivalent where plaintiff retained same salary and benefits but
was required to perform additional tasks that “were neither
overly time consuming nor physically demanding”); Csicsmann,
211 F. App’x at 166 (positions equivalent where “salary, title,
bonus eligibility, health care, and retirement benefits remained
unchanged” despite plaintiff’s allegation “that the new position
was less prestigious and less visible”); Lampley v. IMS Mgmt.
Servs., LLC, No. 10-11543, 2011 WL 914311, at *2 (11th Cir.
Mar. 17, 2011) (unpublished) (positions equivalent where
plaintiff retained same title, pay and benefits despite changed
work location). As in Montgomery, Breeden’s allegations
“focus[] on precisely the sorts of de minimis, intangible, and
unmeasurable aspects of a job that the regulations specifically
exclude.” Montgomery, 266 F.3d at 341. And, again as in
Montgomery, Breeden’s salary was not “interfere[d]” with.
 16

Accordingly, we affirm the district court’s grant of summary
judgment to Novartis on Breeden’s interference claim.
B. Retaliation Claim
The district court granted judgment as a matter of law to
Novartis on Breeden’s retaliation claim because it concluded
that Breeden had failed to establish that Novartis’s alleged
retaliation in 2005 proximately caused her termination in 2008.
We review de novo the district court’s grant of judgment as a
matter of law and “may affirm only if we find . . . that no
reasonable jury could [have reached] a verdict in the plaintiff’s
favor.” Conseil Alain Aboudaram, S.A. v. de Groote, 460 F.3d
46, 50 (D.C. Cir. 2006) (internal quotation marks omitted)
(ellipsis and alteration in original). Although judgment as a
matter of law is “highly disfavored” because it “intrudes upon
the rightful province of the jury,” Boodoo v. Cary, 21 F.3d 1157,
1161 (D.C. Cir. 1994), it is proper if “the court finds that a
reasonable jury would not have a legally sufficient evidentiary
basis to find for” the nonmoving party, Fed. R. Civ. P. 50(a)(1).
See Boodoo, 21 F.3d at 1161 (judgment as matter of law proper
if plaintiff failed to proffer sufficient evidence of proximate
causation); see also Guile v. United States, 422 F.3d 221, 228
(5th Cir. 2005) (affirming grant of judgment as matter of law
because plaintiff failed to establish proximate cause). The
questions before us, then, are whether the FMLA requires a
plaintiff with a retaliation claim to establish proximate causation
and, if so, whether Breeden presented evidence sufficient to
permit a reasonable jury to conclude that the 2005 realignment
proximately caused her termination three years later, in 2008.
An employer who violates the FMLA is liable “for damages
equal to the amount of any wages, salary, employment benefits,
or other compensation denied or lost . . . by reason of the
violation; or . . . any actual monetary losses sustained . . . as a
direct result of the violation.” 29 U.S.C. § 2617(a)(1)(A)(i)(I)-
(II). Breeden does not dispute that the district court’s jury
 17

instructions “properly state[d] the law as set forth in the FMLA”
and “incorporate[d] the concept of proximate cause by requiring
that Breeden prove that she sustained monetary losses as a
direct result of Novartis’[s] retaliation.” Appellant’s Br. 31
(emphasis in original). The parties thus agree that Breeden had
to establish proximate causation. We may therefore assume
without deciding that an FMLA retaliation plaintiff must
establish proximate causation.
We next ask whether Breeden presented sufficient evidence
to establish proximate causation. In determining proximate
causation, we ask: “Was there an unbroken connection between
the wrongful act and the injury, a continuous operation? Did the
facts constitute a continuous succession of events, so linked
together as to make a natural whole, or was there some new and
independent cause intervening between the wrong and the
injury?” Hicks v. United States, 511 F.2d 407, 420 (D.C. Cir.
1975) (quoting Milwaukee & St. Paul Ry. Co. v. Kellogg, 94
U.S. 469, 474-75 (1896)).6 The district court correctly
concluded that there was no continuous succession of events
between the 2005 realignment and Breeden’s termination.
Breeden II, 714 F. Supp. 2d at 36-37. Rather, there were several
“new and independent cause[s] intervening between” 2005 and

6
The Restatement (Second) of Torts (1965) § 433 identifies three
considerations in determining proximate cause: “[1] the number of
other factors which contribute in producing the harm and the extent of
the effect which they have in producing it; [2] whether the actor’s
conduct has created a force or series of forces which are in continuous
and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces for which the
actor is not responsible; [3] lapse of time.” See also W. Page Keeton
et al., Prosser and Keeton on The Law of Torts, § 41, at 264 (5th ed.
1984) (“[L]egal responsibility must be limited to those causes which
are so closely connected with the result and of such significance that
the law is justified in imposing liability.”).
 18

2008. Novartis hired Leal to replace O’Callaghan as head of the
TBU in May 2006. Leal hired a new outside consultant, Powell
& Associates, to recommend changes to the TBU. That
consultant recommended creating a new sales area in the
Midwest. Because Novartis believed it could not afford to hire
another TAM, the recommendation was to combine Breeden’s
and Sneith’s sales areas. In combining non-TBU sales territories
in the past, Novartis had developed rules “on how to combine
territories and how [to] choose who is the . . . surviving
associate.” 3/2/10 Tr. (afternoon) 8-9 (Barr testimony).
Pursuant to those rules, Novartis decided to retain Sneith to
service the combined sales area. Only then—after each of the
foregoing intervening events—did Novartis terminate Breeden.
Breeden attempts to downplay the significance of the
intervening events by arguing that her immediate supervisor,
Harper, was a “direct and consistent link” between the alleged
retaliation in 2005 and her 2008 termination. Appellant’s Br.
34. Breeden claims Harper promised to make her “whole” by
reassigning her to the accounts she serviced in 2003-2004 but
ultimately reneged on that promise in retaliation for her FMLA
leave. Id. at 35. She further claims that Harper could have
prevented her termination in 2008 and that he was most
responsible for choosing to let her go rather than Sneith. The
record, however, does not support her assertions. Harper
testified that he lacked the authority to rearrange Breeden’s
accounts in 2005, see 3/2/10 Tr. (morning) 33-34 (testimony of
Harper that he referred Breeden’s request to his boss, who
“wasn’t particularly interested in moving accounts around”);
Harper Decl. ¶ 11 (“[A]fter [the 2005] realignment, I had no
ability or authority to transfer or assign accounts within my sales
area or outside my sales area . . . .”), and Breeden acknowledged
as much in her deposition, see Breeden Dep. 136-37 (Harper
told Breeden that “he would present [her request] to his
management, and they would work as a team to fix it”).
Additionally, Breeden offered no evidence that Harper played a
 19

role in the decision to terminate her. The evidence instead
indicates that Barr and John Weinberg, the TBU’s executive
director of sales and marketing, not Harper, made the decision.
See 3/2/10 Tr. (afternoon) at 19-20 (testimony of Harper that he
was “just told to get [Breeden] on the phone” and that he called
her for Barr); id. at 8-9 (testimony of Barr that he applied rules
in determining to terminate Breeden); Am. Compl. ¶¶ 102-03
(Harper called Breeden to connect her to Barr, who “informed
Breeden that ‘outside consultants’ had decided to eliminate her
territory”); Leal Aff. ¶¶ 5-6 (Weinberg applied rules in deciding
to retain Sneith); Weinberg Decl. ¶¶ 6-7 (same). That Harper
was responsible for filling the open position in the new
Indiana/Cincinnati sales area, moreover, does not relate back to
Novartis’s decision to terminate Breeden nor is there any
evidence that Harper’s decision not to consider Breeden for the
position was in retaliation for Breeden’s taking FMLA leave
almost three years earlier. The sales representative Novartis
hired for the position had existing relationships with accounts in
the new territory—an important qualification that Breeden
lacked irrespective of the 2005 realignment.
Breeden further argues the intervening events were not a
new and independent cause of her termination because the 2005
realignment made her termination inevitable. She claims that a
TBU salesman can attain success and job security only by
servicing large, prestigious accounts and that, because she
serviced smaller, less prestigious accounts after the 2005
realignment, her career was doomed. Breeden attempts to
bolster her argument by claiming that TBU managers reached
their positions “by capitalizing on their performance at large
transplant centers” like the ones she serviced before 2005 and by
noting that Novartis filled the new position created by the 2008
realignment with a salesman who had, in Breeden’s words,
“important relationships with the major transplant centers” in
the newly created area. Appellant’s Br. 41-43. She asserts that
she “would have been able to maintain [connections] at Hopkins
 20

and [University of Maryland] had it not been for” the 2005
realignment and that her “lack of connections at large
prestigious transplant centers” was the “final straw” that led to
her termination. Id. at 43-44.
Breeden’s argument is flawed because the evidence does
not establish that simply servicing large accounts guarantees
success or job security. Instead it reflects that successfully
servicing large accounts enhances a sales associate’s career
prospects and job security. See 3/1/10 Tr. at 75 (testimony of
Breeden that “people that succeeded had these large accounts”
such as “Harper, who had done great in Ohio” (emphases
added)); id. at 77 (Breeden testimony) (“If you can get into a
large account and have success, it’s noted by everybody, and
from that you’re going to be obviously able to work your way
up.” (emphasis added)). Breeden’s managers did not attain their
positions because they serviced large accounts but because they
successfully serviced large accounts, see, e.g., 3/3/10 Tr. at 27-
28 (testimony of John Blutfield, head of TBU’s commercial
operations from approximately 2005-2006, that Harper and
another TBU manager had “legendary relationships” and “a
track record of success” with large accounts)—something
Breeden was never able to do. That some of the TBU’s best
sales associates, through “legendary” relationships with its
largest accounts, achieved success says nothing about Breeden’s
career prospects before the 2005 realignment.
Simply put, Breeden adduced no evidence to establish that,
had her accounts not been realigned, she would have established
and maintained successful relationships with the accounts she
serviced before 2005. Accordingly, there is no basis upon which
a reasonable jury could conclude that Breeden’s career prospects
or job security diminished after the 2005 realignment. The
evidence, in fact, suggests the contrary. Before the 2005
realignment, she was the last or next-to-last ranked sales
associate and received a “below expectations” rating in her 2003
 21

performance review despite the fact that she serviced large,
prestigious accounts. She did not achieve success until after the
2005 realignment when she began to service smaller accounts.
Not only did her sales rank improve significantly but she also
received—jointly with her colleagues in her business area—a
sales award at a national conference in 2006 and her
compensation increased. These are hardly the signs of a career
in decline or of an employee whose termination is inevitable.
To the contrary, Breeden’s career seems to have been on the rise
after 2005.
We agree with the district court that no reasonable jury,
relying on the evidence presented at trial, could conclude that
the 2005 realignment proximately caused Breeden’s termination
in 2008. We therefore affirm the district court’s grant of
judgment as a matter of law to Novartis on Breeden’s retaliation
claim.
C. Equitable Relief
An employer who violates the FMLA is liable not only for
money damages but also “for such equitable relief as may be
appropriate, including employment, reinstatement, and
promotion.” 29 U.S.C. § 2617(a)(1)(B). Breeden claims the
jury found that Novartis violated the FMLA by retaliating
against her for taking FMLA leave and that the district court’s
subsequent judgment as a matter of law did not disturb that
finding. She raises this argument for the first time on appeal,
however, and it is accordingly forfeited. See Bennett v. Islamic
Republic of Iran, 618 F.3d 19, 21-22 (D.C. Cir. 2010). In
response to Novartis’s motion for judgment as a matter of law,
Breeden had the opportunity to argue that she was entitled to
equitable relief even if the district court found that she suffered
no monetary damages and granted Novartis’s motion but she
failed to do so.
 22

Even if the argument were not forfeited, however, we would
reject it. The district court instructed the jury that Breeden had
to prove four elements “to prevail on her claim of intentional
retaliation”—one of which was that she “lost compensation or
benefits by reason of Novartis’[s] alleged adverse action, or
sustained other monetary losses as a direct result of the alleged
adverse action.” 3/3/10 Tr. 84. The district court granted
judgment as a matter of law to Novartis because it found that
Novartis’s “alleged adverse action”—the 2005 realignment—did
not proximately cause Breeden’s 2008 termination. Breeden II,
714 F. Supp. 2d at 35-37. The district court thus held that
Breeden failed to present sufficient evidence to establish an
element necessary to her retaliation claim. In other words, the
court held that no FMLA violation occurred. As explained
supra, we affirm the district court’s holding that Novartis did
not violate the FMLA. Accordingly, Breeden is not entitled to
equitable—or any other—relief.7

7
The cases on which Breeden relies to argue she is entitled to
appropriate equitable relief are easily distinguished. She relies most
heavily on Colburn v. Parker Hannifin/Nichols Portland Division, 429
F.3d 325 (1st Cir. 2005), but that case says only that a “hypothetical
plaintiff who succeeds in establishing a retaliatory firing claim would
no doubt have been ‘prejudiced by the violation’ and would thus be
theoretically entitled to the full array of remedies provided by the
statute.” Id. at 335 n.6 (emphasis added); see also Traxler v.
Multnomah Cnty., 596 F.3d 1007, 1010 (9th Cir. 2010) (employee
demoted to lower-paying position and then fired for taking FMLA
leave entitled to both monetary and equitable remedies); Miller v.
AT&T, 83 F. Supp. 2d 700, 701-09 (S.D.W. Va. 2000) (employee fired
in violation of FMLA); Rogers v. AC Humko Corp., 56 F. Supp. 2d
972, 974 (W.D. Tenn. 1999) (employee fired in retaliation for taking
FMLA leave). Breeden, by contrast, does not clear the first
hurdle—that of “establishing a retaliatory firing.” Colburn, 429 F.3d
at 335 n.6.
 23

III.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to Novartis on Breeden’s
interference claim and its grant of judgment as a matter of law
to Novartis on Breeden’s retaliation claim.8
So ordered.

8
Because we affirm the district court on Breeden’s appeal, we do
not reach Novartis’s conditional cross-appeal regarding the viability
of a mixed-motive claim under the FMLA.