In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1982
JAMES P. B RENEISEN, JR. and
A NNA M. L INEWEAVER,
Plaintiffs-Appellants,
v.
M OTOROLA , INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:02-cv-50509—P. Michael Mahoney, Magistrate Judge.
A RGUED M AY 6, 2011—D ECIDED S EPTEMBER 2, 2011
Before B AUER, K ANNE and E VANS , Circuit Judges.
B AUER, Circuit Judge. The plaintiffs appeal adverse
decisions below relating to their one-time employer
Motorola’s alleged violation of their rights under the
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-1982
proscriptive anti-discrimination and anti-retaliation pro-
visions of § 2615 of the Family and Medical Leave Act (the
“FMLA”). James Breneisen appeals the district court’s
dismissal of his claim based on a determination that he
was not eligible for recovery of lost back pay, lost em-
ployment benefits, and front pay from Motorola. Anna
Lineweaver appeals the district court’s dismissal of her
claim after Motorola tendered $3,840.00 to her, a sum
which represents the full amount of her damages, but
no costs or attorney’s fees. For the following reasons,
we affirm.
I. BACKGROUND
When this case first came to us in 2008, we partially
reversed the district court’s grant of summary judgment
in favor of Motorola and remanded the Breneisen and
Lineweaver FMLA claims for further proceedings. A
full recitation of the facts is reported at Breneisen v.
Motorola, 512 F.3d 972 (7th Cir. 2008), but we will
briefly restate the pertinent facts relating to the re-
maining two plaintiffs.
A. Breneisen
Breneisen was employed at various Motorola facilities
between 1994 and 2003. In January 2001, he took FMLA
leave to receive treatment for gastroesophageal reflux.
He returned to work twelve weeks later and was
assigned to a different position, allegedly because his
position had been eliminated during his leave and his
No. 10-1982 3
former duties dispersed among several other positions.
He received the same pay and benefits, but considered
the change a demotion. On April 20, 2001, just weeks
after returning to work, Breneisen took medical leave
again, this time for esophageal surgery. He returned to
work in September 2001, but in February 2002, he took
leave for a third time to undergo a total esophagectomy.
Breneisen never returned from this leave and was even-
tually terminated in June 2003. He alleges that the
esophagectomy was necessary because a supervisor
at Motorola caused him to suffer stress, high blood
pressure, and stomach reflux, all of which exacerbated
his pre-existing medical condition.
After our 2008 decision, Breneisen had three surviving
FMLA claims: (1) failure to reinstate to an equivalent
position when he returned to work in April 2001;
(2) discrimination and retaliation when he returned to
work in April 2001; and (3) retaliation by way of harass-
ment by his supervisor from September 2001 until his
final leave in February 2002.
On remand, Breneisen waived the FMLA claims with
the exception of his claim for damages as a result of
discriminatory and retaliatory conduct alleged to have
occurred between September 4, 2001 and February 5, 2002.
He sought recovery of back pay, payment for medical
bills, lost employment benefits, and front pay.
In a motion in limine, Motorola sought to bar evidence
of a causal connection between Breneisen’s medical
conditions and Motorola’s alleged misconduct, arguing
that the evidence was irrelevant. The judge agreed and
4 No. 10-1982
granted the motion. He also concluded that “back and
front pay awards are not available under the FMLA in
this case for any time period during which Breneisen
was unable to perform the functions of his previous job
or one that is comparable, if he had exhausted his FMLA
leave.” The FMLA allows for twelve working weeks of
protected leave during any twelve-month period, 1 an
amount that appears to have been exhausted during
Breneisen’s first leave.
B. Lineweaver
Lineweaver contended that she was denied a tuition
reimbursement benefit in retaliation for taking FMLA
leave. Following this court’s decision in 2008, Motorola
tendered Lineweaver a check for twice the amount she
claimed Motorola owed. Lineweaver accepted the tender
and moved to convert it to a judgment so that she
could petition the court for recovery of costs and
attorney’s fees. The court denied her petition and granted
Motorola’s motion to dismiss, finding that her claim
was made moot by virtue of Motorola’s tender.
Lineweaver appealed.
II. DISCUSSION
A. Breneisen’s Claims
Breneisen disputes the district court’s holdings that
(1) he is barred from collecting back pay and front pay
1
See 29 U.S.C. § 2612(a)(1).
No. 10-1982 5
damages under the FMLA during periods when he was
unable to work and his FMLA leave had been exhausted,
and (2) an employer’s conduct that exacerbates an em-
ployee’s medical condition is not a valid grounds for
an award of front pay under the FMLA.
A district court’s interpretation of a federal statute
such as the FMLA is a question of law which we review
de novo. See Walker v. United Parcel Service, 240 F.3d
1268, 1277 (10th Cir. 2001). The parties do not dispute
that since February 5, 2002, Breneisen has been unable
to work and that he cannot be reinstated to his former
position at Motorola. Nor does Breneisen allege that he
was wrongfully terminated in retaliation for taking
FMLA leave. In this sense, his claim is somewhat
unique from most retaliation claims brought under the
FMLA. As Motorola aptly described the argument in its
brief, Breneisen claims that Motorola “harassed him
when he returned from an approved leave of
absence . . . that because of that [harassment], his medical
condition became exacerbated, and that because of that
[exacerbation] he could no longer work,” ultimately
causing him to permanently lose his job and suffer
ongoing out-of-pocket losses for his medical treatment.
Setting aside the question of whether these allegations
have any potential merit, we must first decide whether
the FMLA permits recovery in a case of this nature.
The magistrate judge concluded it does not. We agree.
Breneisen argues that the district court erred by
granting Motorola’s motion in limine to bar certain
medical evidence which he believes supported his
6 No. 10-1982
claim. The crux of Breneisen’s argument is that the
alleged mistreatment he received from his supervisor
at Motorola upon returning from his second leave in
September 2001 exacerbated his pre-existing condition
and caused him to take the third leave, from which he
never returned. The evidence the district court excluded
was offered to prove this alleged causal link.
We review a district court’s ruling on a motion in
limine for abuse of discretion. Aldridge v. Forest River,
Inc., 635 F.3d 870, 874 (7th Cir. 2011). Evidentiary
questions such as the one before us are accorded great
deference because they are “peculiarly within the compe-
tence of the district court.” Id.
The district court granted Motorola’s motion because
it found no basis in the FMLA that would enable
Breneisen to recover on his theory, even if the causal
link he sought to establish proved to be true.
Though Breneisen’s argument appears to be one of
first impression in our circuit, it resembles the matter
at issue in Edgar v. JAC Products, Inc., 443 F.3d 501 (6th
Cir. 2006), a Sixth Circuit case dealing with a similar
“exacerbation” argument. In that case, the plaintiff was
unable to return to work after her FMLA leave had ex-
pired. She alleged that her condition had persisted as a
result of her employer’s discriminatory and retaliatory
conduct toward her. The Sixth Circuit affirmed the
district judge’s grant of summary judgment in Edgar,
finding that the FMLA does not address the cause of
an employee’s injury. Edgar, 443 F.3d at 516. We agree
that the cause of an injury is irrelevant under the
No. 10-1982 7
FMLA, although it would be relevant to a claim based
in tort law.2
Even if the cause of an employee’s medical condition
were relevant under the FMLA, it would not be relevant
in Breneisen’s case, since the exacerbating conduct he
alleges occurred after a second, unprotected leave.
There seems to be no dispute that Motorola fully
complied with the requirements of the FMLA during
and immediately following Breneisen’s first leave. At
the end of that leave, his entitlement to twelve weeks
of leave per year for a qualifying condition had been
exhausted. In April 2001, Motorola again allowed him
to take leave; when he returned to work five months
later, the company reinstated him. His second reinstate-
ment did not occur because the FMLA required it;
rather, it appears to have been a courtesy extended to
a long-standing employee. Although his second leave
may have been “approved,” an employer’s approval
of extra leave time has no bearing on the established
parameters of taking leave pursuant to the FMLA.
Since the retaliatory conduct which Breneisen alleges
occurred happened when he was no longer subject to
the FMLA’s clearly defined protections, he is not
entitled to recovery for an FMLA violation.
We share the Sixth Circuit’s concerns about permitting
recovery to an FMLA plaintiff on “exacerbation” grounds
2
Breneisen already filed an intentional infliction of emotional
distress claim; we affirmed summary judgment in favor of
Motorola on that claim when the case first came before us
in 2008.
8 No. 10-1982
and adopt its holding that exacerbation is not a valid
theory of liability under the FMLA. See Edgar, 443 F.3d at
516. Since stress can adversely affect many common
ailments from which physically infirm employees
suffer, granting relief on this basis would contravene
the straightforward premise of the FMLA—to protect
employees from adverse actions by their employers
during finite periods when short-term personal or
family medical needs require it. When serious medical
issues render an employee unable to work for longer
than the twelve-week period contemplated under the
statute, the FMLA no longer applies. This is true re-
gardless of the cause of the infirmity.
Having so held, we conclude that the district court
did not err in dismissing Breneisen’s claim.
B. Lineweaver’s Claim
The only remaining question is whether an active
claim or controversy still exists between Lineweaver and
Motorola since attorney’s fees on her separate FMLA
claim have not been paid. She alleges these fees were
part of her demand and that because Motorola did not
account for these fees in its voluntary tender of $3,840.00
to her, the district court erred in dismissing her claim
for mootness.
Whether a cause of action was properly dismissed for
mootness is a question of law that we review de novo.
Zessar v. Keith, 536 F.3d 788, 793 (7th Cir. 2008).
A case is moot when there is no live controversy be-
tween the parties on the merits of the underlying claim.
No. 10-1982 9
As this court held in Holstein v. City of Chicago, 29 F.3d
1145, 1147 (7th Cir. 1994), “[o]nce the defendant offers
to satisfy the plaintiff’s entire demand, there is no
dispute over which to litigate, and a plaintiff who
refuses to acknowledge this loses outright under Fed. R.
Civ. P. 12(b)(1), because he has no remaining stake.”
Lineweaver contends that her demand for attorney’s
fees keeps the case alive; we do not agree. It is well-settled
that an interest in attorney’s fees is insufficient to create
a case or controversy when none exists on the merits.
See Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990).
Lineweaver concedes that the FMLA requires a judg-
ment to trigger the recovery of costs and attorney’s fees.
See App. Br. at 39. Under 29 U.S.C. § 2617(a)(3), such costs
and fees are awarded “in addition to” any judgment
awarded to a plaintiff in an FMLA case. This language
clearly establishes that costs and fees are ancillary to
the merits of a claim, not part of the claim itself.
Lineweaver’s arguments that the result is manifestly
unjust and contrary to public policy recall the “catalyst
theory” which the Supreme Court has rejected.
Buckhannon Board and Care Home, Inc. v. W. Va. Dep’t of
Health and Human Services, 532 U.S. 598, 605 (2001). The
catalyst theory posits that when a lawsuit has brought
about a voluntary change in the defendant’s conduct,
the plaintiff should be considered a prevailing party
because the desired result was achieved. Id. at 601.
In rejecting this theory, the Supreme Court noted that
there must be a judicially sanctioned change in the rela-
tionship between the parties for a court to award at-
10 No. 10-1982
torney’s fees on the basis of the change. We find that a
voluntary tender of sums allegedly owed to the plaintiff
lacks the requisite “judicial imprimatur” referenced in
Buckhannon. Id. at 605. Accordingly, the district court
appropriately dismissed Lineweaver’s claim.
III. CONCLUSION
For the reasons set forth above, we A FFIRM the district
court’s dismissal of the appellants’ FMLA claims.
9-2-11