United States Court of Appeals
For the First Circuit
No. 05-1308
BRIAN COLBURN,
Plaintiff, Appellant,
v.
PARKER HANNIFIN/NICHOLS PORTLAND DIVISION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Howard T. Reben, with whom Adrienne S. Hansen and Reben,
Benjamin & March were on brief, for appellant.
Frederick B. Finberg, with whom Peter Bennett and The Bennett
Law Firm, P.A. were on brief, for appellee.
November 18, 2005
LYNCH, Circuit Judge. Brian Colburn was terminated from
his job as a machine operator at the Nichols Portland Division of
the Parker Hannifin Corporation ("Nichols"). Colburn sued,
alleging primarily that his employer, Nichols, fired him in
retaliation for his having taken leave protected under the Family
and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-54, and the
similar Maine statute, Me. Rev. Stat. Ann. tit. 26, §§ 843-48. In
turn, Nichols responded that it had discharged Colburn because he
told the company he was out sick with a migraine when he was seen
going to the gym, shopping, and driving around doing errands.
We affirm summary judgment in favor of the defendant on
different grounds than those used by the district court and the
magistrate judge. In doing so, we reject certain reasoning urged
on those courts by the defendant. We hold that a claim for
retaliatory discharge from employment is not extinguished by a
finding that the plaintiff was unable to return to work at the
expiration of his 12-week period of FMLA leave. Nonetheless, we
hold that no reasonable jury could conclude that this particular
plaintiff was fired in retaliation for his exercise of FMLA rights.
I.
We recount the facts in the light most favorable to the
plaintiff, who opposed the entry of summary judgment. Crete v.
City of Lowell, 418 F.3d 54, 56 (1st Cir. 2005). In January 1998,
Nichols hired plaintiff Colburn as a utility worker. During the
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next four years, Colburn was promoted four times; he eventually
held the position of Machine Operator I, with responsibility for
troubleshooting machines, as well as for some training of other
machine operators.
On October 2, 2001, during his lunch break at work,
Colburn experienced what would turn out to be the first of many
intensely painful migraines. Although he had suffered from sinus-
related headaches in the past, the new wave of migraines was more
severe and often accompanied by shooting pain, blurry vision,
dizziness, or nausea. From October 17 to 22, 2001, Colburn went on
a prescheduled hunting vacation. When he returned to work on
October 23, he experienced a migraine a half hour into his shift at
Nichols and had to leave work. From then on, he began to take
intermittent sick leave on account of his migraines; he missed
twenty-five days' work between October 2001 and January 31, 2002.
In autumn of 2001, Colburn filed with Nichols an
application for short-term disability benefits. In that
application, dated November 22, 2001, he stated that he was unable
to perform "[a]ll activities when an attack occurs[,] including
driving." The application was never finalized. On at least three
occasions in December 2001, Shannon Craig, a human resources
representative, requested from Colburn medical information that the
company needed to substantiate his need for medical leave and to
determine his eligibility for disability benefits. According to
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Craig's record of their conversations, Colburn repeatedly promised
to submit the paperwork, but failed actually to do so. Colburn
concedes that he did not submit any of the requested medical
documents to the company. He now argues that at the time he filed
the application, he had signed an authorization to release medical
information that gave Nichols access to all of his medical records;
accordingly, the onus was on Nichols to secure the necessary
medical documents. At his deposition, however, he never testified
that he had told Craig that she should get the medical records
herself using his authorization.
Colburn asserted in his affidavit that while he was on
leave, he frequently provided complete updates to his employer
about his health. He testified at his deposition that when he
spoke with Randy Purinton, his immediate supervisor, Purinton never
put pressure on him to return to work or subjected him to criticism
or discipline. In December 2001, however, Colburn spoke with
Christine Fox, a human resources administrator at Nichols, about
his medical condition. Colburn stated in his affidavit that Fox
used a hostile tone and made him "feel like [he] was doing
something wrong for making a medical claim."
On January 22, 2002, Nichols retained a private
investigator to conduct surveillance of Colburn. Nichols states
that it initiated the investigation because it became suspicious of
Colburn for two reasons: first, Colburn failed to submit the
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medical information the company needed to process his disability
application, despite three requests by human resources personnel,
and second, he could not be reached at home on days when he had
called in sick.
The investigator began surveillance of Colburn on January
23 and 24; Colburn reported for work on both days. On January 28
and 29, Colburn was scheduled to work the 2:30 p.m. to 11:00 p.m.
shift. Sometime around 2 p.m. on January 28, Colburn called his
supervisor to say that he had a severe headache and would not be
able to come into work until later in the afternoon. Around 3
p.m., the investigator followed Colburn as he drove from his home
to a gym. Thirty minutes after entering the gym attired in workout
clothes, Colburn departed in jeans and a shirt. Colburn then drove
to a video store, where he rented a video, and then to three
variety stores. He emerged at 5:05 p.m. from the third store with
a paper bag containing what appeared to be two bottles. Around the
same time, he left a voicemail for his supervisor apprising him
that his migraine had returned and that he would not be coming into
work at all that day. At that point, the investigator lost sight
of Colburn in heavy traffic. The investigator returned to
Colburn's residence at 5:53 p.m. and, upon seeing that Colburn was
in his garage, apparently gathering items from his car and
preparing to go inside the house, discontinued surveillance for the
day.
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Upon resuming surveillance on January 29, 2002, the
investigator observed Colburn departing from his home at 12:35 p.m.
The investigator tracked Colburn as he drove to multiple locations:
he went into his gym for about thirty minutes, rented videos from
two video stores, and stopped at a bank. Colburn also visited two
shopping areas, where he seemed to have been searching for a
payphone. Around 2 p.m., Colburn left a voicemail for his
supervisor indicating that he was ill and would not be able to work
that day. After making that phone call, Colburn stopped at a
variety store; there, he purchased a six-pack of beer and some
pretzels. He did not return home until after 3:30 p.m., at which
point the investigator discontinued surveillance.
On January 31, 2002, Jan Stanley, Nichols's human
resources manager, received from the investigator a report
detailing his observations during the course of his surveillance of
Colburn. Later that day, company officials Steve Oliver and Harold
Sexton, along with Randy Purinton, met with Colburn and informed
him that he was being discharged. Colburn testified at his
deposition that his understanding after that meeting was that they
had terminated him in part because he had been observed at the gym
at the same time he had called in sick. Stanley confirmed in
deposition testimony that Colburn had been fired because his
actions on January 28 and 29 were inconsistent with those of
someone experiencing an incapacitating migraine. She also
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testified that Nichols has a "positive progressive discipline
policy," under which employees usually receive some notice of, and
opportunity to address, the employer's disciplinary concerns.
However, under that policy, serious misconduct can result in
immediate dismissal of the employee.
Both parties agree that at the time he was fired, Colburn
had not exhausted the full 12-week leave period to which he was
entitled under the FMLA. See 29 U.S.C. § 2612(a), (b). In key
testimony, he admitted at his deposition that he "was unable to
return to work due to his medical condition until 4/15/03," well
past the expiration date of his FMLA leave. Stanley testified that
Colburn was on unpaid leave at the time of his termination.
Colburn said at his deposition that he had no
recollection of whether he had called in sick on January 28 and 29.
Nor did he recall what he did those days if he had called in sick.
He later acknowledged that he did, in fact, engage in the
activities depicted in the surveillance tape. He argued, however,
that the activities documented in the video were not "inconsistent
with his having a migraine which prevented him from working"; he
suggested that "he was most likely experiencing the onset or
aftermath of a migraine, which did not prevent him from functioning
at the minimal levels shown on the video."
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II.
Colburn filed suit on January 15, 2004 in federal
district court against Nichols, alleging violations of the FMLA, 29
U.S.C. §§ 2601-54, and the similar Maine statute, Me. Rev. Stat.
Ann. tit. 26, §§ 843-48.1 He made two FMLA claims. First, he
alleged that Nichols interfered with his substantive rights under
the FMLA by failing to restore him to his position following the
termination of his FMLA leave, in violation of 29 U.S.C. § 2614.
Second, he alleged that Nichols fired him in retaliation for his
taking medical leave, in violation of 29 U.S.C. § 2615.
After the close of discovery, Nichols filed on August 2,
2004 a motion for summary judgment on all counts of the complaint.
On October 8, 2004, a magistrate judge filed a recommended decision
granting Nichols's summary judgment motion. After oral argument,
the district court, on de novo review, issued an order on January
25, 2005 that adopted the magistrate judge's recommendation to
grant defendant's summary judgment motion as to all counts of the
complaint and to strike certain sections of Colburn's summary
judgment affidavit. Colburn appeals both of these rulings.
1
The parties have assumed that the same legal analysis
governs both the federal and state claims. Both the magistrate
judge and the district court proceeded with that assumption. We do
so as well.
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III.
Review of a district court's grant of summary judgment is
de novo, Rodriguez v. Am. Int'l Ins. Co., 402 F.3d 45, 46-47 (1st
Cir. 2005), and we may affirm the district court's decision on any
sufficient ground supported by the record, Carcieri v. Norton, 423
F.3d 45, 53 (1st Cir. 2005).
Our review of this otherwise straightforward case has
been complicated by some analytic confusion, largely caused by the
defendant. We clarify the law and affirm summary judgment on the
basis that there is insufficient evidence for a rational factfinder
to conclude that Nichols interfered with Colburn's substantive
rights under the FMLA or that it terminated him in retaliation for
his taking medical leave.
A. FMLA Standards
The FMLA contains two distinct types of provisions: those
establishing substantive rights and those providing protection for
the exercise of those rights. See Hodgens v. General Dynamics
Corp., 144 F.3d 151, 159-60 (1st Cir. 1998). The first, which we
have described as "essentially prescriptive, 'set[s] substantive
floors' for conduct by employers, and creat[es] 'entitlements' for
employees." Id. at 159 (quoting Diaz v. Fort Wayne Foundry Corp.,
131 F.3d 711, 712-13 (7th Cir. 1997)). Such provisions, codified
at 29 U.S.C. § 2612, entitle eligible employees to, inter alia, "a
total of 12 workweeks of leave," which may be taken intermittently
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when medically necessary, for "a serious health condition that
makes the employee unable to perform the functions of [his]
position." 29 U.S.C. §§ 2612(a)(1)(D), 2612(b). With limited
exceptions, see 29 C.F.R. §§ 825.214(b), .216, upon the employee's
return from a qualified leave, the employer must reinstate the
employee to the same position or an alternate position with
equivalent pay, benefits, and working conditions, and without loss
of accrued seniority. Hodgens, 144 F.3d at 159 (citing 29 U.S.C.
§ 2614(a)(1); and 29 C.F.R. § 825.100(c)); see also Hillstrom v.
Best W. TLC Hotel, 354 F.3d 27, 32 (1st Cir. 2003).
In addition to the grant of substantive rights, the
statute sets forth a list of prohibited acts at 29 U.S.C. § 2615:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer
to interfere with, restrain, or deny
the exercise of or the attempt to
exercise, any right provided under this
subchapter.
(2) Discrimination
It shall be unlawful for any employer
to discharge or in any other manner
discriminate against any individual for
opposing any practice made unlawful by
this subchapter.
(b) Interference with proceedings or inquiries
It shall be unlawful for any person to
discharge or in any other manner discriminate
against any individual because such individual
--
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(1) has filed any charge, or has
instituted or caused to be instituted
any proceeding, under or related to
this subchapter;
(2) has given, or is about to give, any
information in connection with any
inquiry or proceeding relating to any
right provided under this subchapter;
or
(3) has testified, or is about to
testify, in any inquiry or proceeding
relating to any right provided under
this subchapter.
The statute prohibits, then, both interference and
discrimination. Notably, however, there is no clear demarcation in
§ 2615 between what is "interference" and what is "discrimination,"
and the terms overlap in some situations. See, e.g., Conoshenti v.
Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 143-47 & n.9 (3d Cir.
2004); Bachelder v. Am. W. Airlines, 259 F.3d 1112, 1124 n.10 (9th
Cir. 2001). Employers found to be in violation of 29 U.S.C. § 2615
are subject to a claim for, inter alia, equitable relief and
compensatory damages, including wages, salary, and benefits.
Claims for violations of substantive rights are brought
under 29 U.S.C. § 2615(a)(1), which prohibits actions by "any
employer to interfere with, restrain, or deny the exercise of" such
rights. See, e.g., Harrell v. U.S. Postal Serv., 415 F.3d 700,
706-07 (7th Cir. 2005); see also 7 N. Lareau et al., Labor and
Employment Law § 174.02[3] (2003). To meet his or her burden in an
interference with substantive rights claim, a plaintiff need only
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show, by a preponderance of the evidence, entitlement to the
disputed leave; no showing as to employer intent is required. See
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960-61
(10th Cir. 2002); King v. Preferred Technical Group, 166 F.3d 887,
891 (7th Cir. 1999).
In addition to a claim alleging the deprivation of
substantive rights, an employee may also bring suit against an
employer under a retaliation theory. Although the text of 29
U.S.C. § 2615(a) makes no reference to "retaliation," this court
has recognized such a cause of action in the statute and
specifically the interpretative regulation 29 C.F.R. § 825.220(c).2
Hodgens, 144 F.3d at 160-61 & n.4 (1st Cir. 1998) (citing 29 U.S.C.
§ 2615(a)(1), (2); and 29 C.F.R. § 825.220(c)); see also Keeler v.
Putnam Fiduciary Trust Co., 238 F.3d 5, 8-9 (1st Cir. 2001).
The regulation 29 C.F.R. § 825.220(c) provides:
An employer is prohibited from discriminating
against employees or prospective employees who
have used FMLA leave. For example, if an
employee on leave without pay would otherwise
be entitled to full benefits (other than
health benefits), the same benefits would be
required to be provided to an employee on
2
As best as we can tell, all circuits recognize a cause of
action for retaliation. Most ground it in 29 U.S.C. § 2615(a)(1)
and (2) and attendant regulations. See, e.g., Strickland v. Water
Works & Sewer Bd., 239 F.3d 1199, 1206-07 (11th Cir. 2001); King,
166 F.3d at 891. But some derive it only from § 2615(a)(2) and the
accompanying regulations and appear to reserve § 2615(a)(1) for
non-retaliation claims. See Conoshenti, 364 F.3d at 146 n.9
(discussing the two approaches and citing Arban v. West Publishing
Corp., 345 F.3d 390, 401, 403 (6th Cir. 2003), as an example of the
latter).
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unpaid FMLA leave. By the same token,
employers cannot use the taking of FMLA leave
as a negative factor in employment actions,
such as hiring, promotions or disciplinary
actions; nor can FMLA leave be counted under
"no fault" attendance policies.
This regulation unambiguously interprets § 2615 as prohibiting
retaliation. However, it does not make any distinction among
§§ 2615(a)(1), 2615(a)(2), or 2615(b) as the source of the
prohibition. This statutory and regulatory ambiguity has led to
some differences in view.
Specifically, courts have disagreed about whether
"interference" refers to a category of claims separate and distinct
from those involving retaliation, or whether it describes a group
of unlawful actions, of which retaliation is a part. See
Bachelder, 259 F.3d at 1124 & n.10. The term "interference" may,
depending on the facts, cover both retaliation claims, see Hodgens,
144 F.3d at 159-60 & n.4, and non-retaliation claims, see
Conoshenti, 364 F.3d at 142-43. The distinction would matter if
the standards of proof used turned on which statutory section were
pled, rather than on the nature of the facts and the theory of the
case. Yet, whether a claim is characterized as "interference" or
not, its elements actually differ depending on whether the
plaintiff is, at bottom, claiming that the employer denied his or
her substantive rights under the FMLA or that the employer
retaliated against him or her for having exercised or attempted to
exercise those rights. Cf. Bachelder, 259 F.3d at 1124-25
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(characterizing a claim under 29 C.F.R. § 825.220(c) as an
"interference" claim, where plaintiff did not allege that the
employer terminated her in retaliation for taking FMLA leave, but
rather that the employer used her taking FMLA leave as a negative
factor in its decision to terminate her).
For example, this circuit's approach to an FMLA claim of
retaliation is to permit proof directly or by inference, with the
ultimate burden of proof remaining on the plaintiff to prove by a
preponderance of the evidence that the employer's adverse
employment action was in retaliation for exercise of protected
rights. See Hodgens, 144 F.3d at 160. In contrast, employer
motive plays no role in a claim for substantive denial of benefits.
See id. at 159; 1 C. Richey, Manual on Employment Discrimination
Law and Civil Rights Actions § 9:42 (2d ed. 2004) (citing Diaz, 131
F.3d at 712-13).
In the present case, both the magistrate judge and
district court concluded that plaintiff could not have made out a
persuasive case under either the denial of substantive
rights/interference theory or the retaliation theory. Their
conclusion was the only outcome warranted by the record.
B. Denial of Substantive Rights/Interference Claim
The two courts noted that Colburn, by his own admission,
would not have been able to return to work until April 15, 2003,
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well after the expiration of his FMLA leave.3 Because the
Department of Labor regulations interpreting the FMLA state that an
employee has no right to reinstatement "[i]f the employee is unable
to perform an essential function of the position because of . . .
the continuation of a serious health condition," the courts
concluded that Colburn's interference with substantive rights claim
fails because Nichols was under no obligation to reinstate him. 29
C.F.R. § 825.214(b); see also 29 U.S.C. §§ 2612(a), (b), 2614(a).
That conclusion is plainly correct, and the substantive rights
interference claim was properly dismissed.
C. Retaliation Claim
3
Colburn argues that he should not be held to this
admission because his attorney erred in reporting the April 2003
date in his Rule 26(a)(1) original disclosure statement. He points
us to paragraphs in his summary judgment affidavit that "correct"
this error. The district court, invoking Colantuoni v. Alfred
Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir. 1994), had struck those
affidavit paragraphs, among others, because they were inconsistent
with his deposition testimony.
Colburn argues that the affidavit should not have been
stricken because it was not creating a "sham fact issue." Franks
v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). But the applicable
standard in this circuit is not whether a sham issue of fact has
been created. Our law is clear that "[w]hen an interested witness
has given clear answers to unambiguous questions, he cannot create
a conflict and resist summary judgment with an affidavit that is
clearly contradictory" without providing "a satisfactory
explanation of why the testimony is changed." Colantuoni, 44 F.3d
at 4-5 (citing 10A Wright, Miller & Kane, Federal Practice and
Procedure § 2726, at 30-31 (2d ed. Supp. 1994)). The court
properly considered that Colburn's lawyers had had ample
opportunity to correct or clarify any alleged error in his
deposition testimony. Yet plaintiff's counsel made no effort to
explain the inconsistency until January 3, 2005, after the
magistrate judge handed down his recommended decision. This is
exactly the kind of gamesmanship that Colantuoni sought to address.
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1. Rejection of Defendant's Theory of Analysis
Before the district court, the defendant argued that if
an FMLA plaintiff cannot return to work prior to the exhaustion of
his FMLA leave, then ipso facto his retaliation claim fails.4 It
propounds the same theory on appeal. Defendant's theory
mischaracterizes the law, and we reject it.
Defendant grounds its argument in the text of two
regulations, 29 C.F.R. §§ 825.214(b) and 825.216(d). Neither
supports its theory. The first provision deals with an employee's
rights on returning to work from FMLA leave; it sets a limit on the
right to reinstatement set out in 29 U.S.C. § 2614(a)(1). As such,
it circumscribes only Colburn's ability to bring an interference
claim. The second provision deals only with an employee who has
taken workers' compensation leave concurrently with FMLA leave.
Nothing in the record shows that Colburn was on workers'
compensation leave at any point during October 2001 to April 2003,
and thus the provision is irrelevant to Colburn's claim.
Our law is clear that an FMLA plaintiff may pursue a
retaliation claim even if there is no claim of violation of
4
It appears that this argument influenced the district
court, which concluded that Colburn's "inability to return to work
following the expiration of his FMLA leave extinguishes his
retaliation claim under the FMLA." To the magistrate judge's
analysis, which relied on 29 C.F.R. § 825.214(b), the district
court added that Colburn failed to show that the statute could
provide him with a remedy even if he could prove that a violation
occurred.
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substantive rights to leave. See Hodgens, 144 F.3d at 159-60
(describing the independent causes of action under the substantive
and proscriptive provisions of the FMLA); accord Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001) ("The
[FMLA] provides two distinct causes of action, to which courts
apply different analyses."). Further, the failure of a substantive
claim of denial of leave does not foreclose a retaliation claim.
See Hunt, 277 F.3d at 768-69 (noting that a plaintiff "need not
establish a violation of the substantive, prescriptive provisions
of the FMLA to allege a violation of the proscriptive provisions").
Nichols also proposes that even if the failure of
Colburn's substantive claim does not automatically extinguish his
retaliation claim, then the latter still fails because Colburn
incurred no damages. This theory is also wrong. That a plaintiff
cannot make out a case for damages for a substantive rights
infringement claim does not mean no cause of action for retaliation
can be stated.
29 U.S.C. § 2617(a) sets out the remedies for violations
of § 2615:
(1) Liability
Any employer who violates section 2615 of this
title shall be liable to any eligible employee
affected --
(A) for damages equal to --
(i) the amount of --
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(I) any wages, salary,
employment benefits, or other
compensation denied or lost
to such employee by reason of
the violation; or
(II) in a case in which
wages, salary, employment
benefits, or other
compensation have not been
denied or lost to the
employee, any actual monetary
losses sustained by the
employee as a direct result
of the violation, such as the
cost of providing care, up to
a sum equal to 12 weeks of
wages or salary for the
employee;
(ii) the interest on the amount
described in clause (i) calculated
at the prevailing rate; and
(iii) an additional amount as
liquidated damages equal to the
sum of the amount described in
clause (i) and the interest
described in clause (ii), except
that if an employer who has
violated section 2615 of this
title proves to the satisfaction
of the court that the act or
omission which violated section
2615 of this title was in good
faith and that the employer had
reasonable grounds for believing
that the act or omission was not a
violation of section 2615 of this
title, such court may, in the
discretion of the court, reduce
the amount of the liability to the
amount and interest determined
under clauses (i) and (ii),
respectively; and
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(B) for such equitable relief as may be
appropriate, including employment,
reinstatement, and promotion.
. . . .
(3) Fees and costs
The court in such an action shall, in addition
to any judgment awarded to the plaintiff,
allow a reasonable attorney's fee, reasonable
expert witness fees, and other costs of the
action to be paid by the defendant.
As to his claim of interference with his substantive
rights under the FMLA, Colburn was not entitled to any remedy
because he admitted he could not return to work at the expiration
of the leave. But that did not mean there was no actionable harm
under a retaliation theory. In some situations, a successful
retaliation claim will lead to independent damages.
Colburn's termination occurred on January 31, 2002. He
admitted that he would not have been able to return to work until
after his period of leave expired, and he thus would not have been
entitled to reinstatement under 29 U.S.C. § 2614. Accordingly,
with regard to his retaliation claim, he would not have been
entitled to any compensation or benefits after the date he
exhausted his FMLA leave. In theory, he nonetheless could have had
a loss of salary in the period between the date of the alleged
wrongful termination and the date his leave expired. Yet, because
his leave was an unpaid leave, he had no lost income. Also
theoretically, Colburn could have suffered damages in the form of
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lost value of employment benefits (say, health and dental
insurance) in the period between his termination and the expiration
of the unpaid leave. See 29 U.S.C. § 2611(5) (defining "employment
benefits"). But he proffered no evidence showing that the alleged
retaliatory firing resulted in such losses.5
Damages, however, are not the only remedy available under
the FMLA. The FMLA also provides for equitable relief, including
reinstatement, see id. § 2617(a)(1)(B); thus, a hypothetical
plaintiff who proved retaliation could be reinstated once he or she
is able to perform all essential functions of the position, see 29
C.F.R. § 825.216(a) ("An employee has no greater right to
reinstatement . . . than if the employee had been continuously
employed during the FMLA leave period."), even if he or she had no
monetary damages. Indeed, counsel for Colburn made this very
argument.
Further, the statute provides, in addition to any
judgment awarded to the plaintiff, for "reasonable attorney's fee,
reasonable expert witness fees, and other costs of the action to be
paid by the defendant." 29 U.S.C. § 2617(a)(3). Thus, had Colburn
proven his claim of retaliation and established entitlement to some
5
Other circuits have held that nominal and consequential
damages (including emotional distress damages) are not available
under the FMLA. See Walker v. United Parcel Serv., Inc., 240 F.3d
1268, 1277-78 (10th Cir. 2001); Nero v. Industrial Molding Corp.,
167 F.3d 921, 930 (5th Cir. 1999).
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form of equitable relief, he could have been awarded attorney's
fees and costs.
The fact that Colburn could not have returned to work
before the expiration of his leave and thus cannot make out a claim
for interference with his substantive rights does not necessarily
preclude a retaliation claim.6
2. Proper Analysis of the Retaliation Claim
The crux of Colburn's complaint is that Nichols
terminated him not because of any inappropriate behavior on his
part, but in retaliation for his having taken protected medical
leave. Colburn thus must show a causal link between his
termination and retaliatory animus on the part of the employer.
In a retaliation case, there are varying approaches to
showing intent. Our circuit has long held that where, as here, a
6
Defendant argues that Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81 (2002), precludes any relief for the plaintiff in
this case, even if he were to have proven retaliation. It cites to
the following passage from Ragsdale:
To prevail under the cause of action set out in
§ 2617, an employee must prove, as a threshold
matter, that the employer violated § 2615 by
interfering with, restraining, or denying his or
her exercise of FMLA rights. Even then, § 2617
provides no relief unless the employee has been
prejudiced by the violation.
Id. at 89. This passage does not support defendant's theory. 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.
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plaintiff did not show direct evidence of retaliation,7 he or she
could use the inferential model of showing intent under a modified
version of the framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).8 See Hodgens, 144 F.3d at 160. With
perhaps the exception of the Ninth Circuit,9 all other circuits
7
Colburn asserts in his brief that he has introduced both
direct and indirect evidence of retaliation. The only direct
evidence he specifically points to is the hostile tone a human
resources administrator allegedly used in one conversation two
months before Colburn was discharged.
8
Colburn makes a perfunctory reference to a mixed-motive
claim in his brief. Whether a mixed-motive analysis is available
at all in an FMLA case for retaliation is an open question, and we
do not resolve it here. The issue has been adverted to but avoided
by three circuits. See Bell v. Kaiser Foundation Hospitals, 122
F.App'x 880, 882 (9th Cir. 2004) (unpublished decision); Gibson v.
City of Louisville, 336 F.3d 511, 514 (6th Cir. 2003); Trujillo-
Cummings v. Pub. Serv. Co., No. 97-2337, 1999 WL 169336, at *5
(10th Cir. Mar. 29, 1999) (unpublished decision). Since Colburn
mentions a mixed-motive claim only in passing, we discuss this
issue no further.
9
See Bachelder, 259 F.3d at 1124-25 & nn.10-11.
Bachelder, as it says itself, was not a retaliation claim. See id.
at 1124. There, the employer admitted that it terminated
plaintiff's employment because of her absences from work. The
question was whether those absences were covered by the FMLA. If
they were, then the employer's decision to fire her constituted an
impermissible interference with plaintiff's FMLA rights, whether
the employer intended to interfere or not. See id. at 1125-26.
That is a vastly different situation from the one here.
Bachelder specifically reserved the question whether it
would apply McDonnell Douglas to a retaliation claim under 29
U.S.C. §§ 2615(a)(2) and (b). Id. at 1125 n.11. And it did not
expressly rule on whether it would apply the framework to the type
of retaliation claim we have here, which alleges that the employer
retaliated against the employee's taking of FMLA leave (rather than
against, say, the employee's participation in legal proceedings).
See id. at 1124 n.10 (implying that it would apply McDonnell
Douglas, if at all, only to cases arising under §§ 2615(a)(2) and
(b)). In a later unpublished decision, the Ninth Circuit seems to
have construed Bachelder to preclude the application of McDonnell
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have decided to use the same framework. See, e.g., Potenza v. City
of New York, 365 F.3d 165, 167-68 (2d Cir. 2004); Lepore v.
Lanvision Sys., Inc., 113 F.App'x 449, 453 (3d Cir. 2004)
(unpublished decision); Nichols v. Ashland Hosp. Corp., 251 F.3d
496, 502 (4th Cir. 2001); Chaffin v. John H. Carter Co., Inc., 179
F.3d 316, 319 (5th Cir. 1999); Skrjanc v. Great Lakes Power Serv.
Co., 272 F.3d 309, 315 (6th Cir. 2001); King, 166 F.3d at 891-92;
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir.
2002); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323, 1325 (10th Cir.
1997); Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206-
07 (11th Cir. 2001); Gleklen v. Democratic Cong. Campaign Comm.,
Inc., 199 F.3d 1365, 1367-68 (D.C. Cir. 2000).
As Hodgens states:
Under that framework, a plaintiff employee
must carry the initial burden of coming
forward with sufficient evidence to establish
a prima facie case of . . . retaliation. If
he does so, then the burden shifts to the
employer "to articulate some legitimate,
nondiscriminatory reason for the employee's
[termination]," sufficient to raise a genuine
issue of fact as to whether it discriminated
against the employee. . . . If the employer's
evidence creates a genuine issue of fact, the
presumption of discrimination drops from the
case, and the plaintiff retains the ultimate
burden of showing that the employer's stated
reason for terminating him was in fact a
pretext for retaliating against him for having
taken protected FMLA leave.
Douglas to the type of claim we have here. See Zsenyuk v. City of
Carson, 99 F.App'x 794, 796 (9th Cir. 2004) (unpublished decision).
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144 F.3d at 160-61 (alteration in original) (citations omitted)
(quoting McDonnell Douglas, 411 U.S. at 802).
Although we are doubtful Colburn even makes out a prima
facie case,10 we turn to the issue of pretext. Nichols says that
it fired Colburn because of its belief that he had falsified his
reasons for being absent from work and that falsehood was proven on
two specific occasions -- namely, January 28 and 29, 2002. On
those two days, the investigator videotaped Colburn -- who had
reported that he was unable to perform his duties at work because
of his migraines -- engaging in a number of activities outside of
his home, including driving, spending thirty minutes at the gym,
renting videos, and shopping. These activities, which occupied
Colburn for two to three hours each day during the period of time
he claimed to have been unable to work because of migraines, were
inconsistent with the information he had given the employer about
his migraines. That information was on his short-term disability
application form, on which he stated that when he was experiencing
a migraine, he could not perform "[a]ll activities . . . ,
including driving."11
10
To make out a prima facie case, plaintiff must show (1)
that he engaged in a protected action (here, requesting or taking
FMLA leave); (2) that he suffered an adverse employment action
(here, being fired); and (3) that there was some possibility of a
causal connection between the employee's protected activity and the
employer's adverse employment action, in that the two were not
wholly unrelated. See Hodgens, 144 F.3d at 161.
11
Indeed, even at his deposition, Colburn continued to
maintain that the form he submitted was accurate. To counsel's
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Colburn points to the following as evidence that
Nichols's explanation was pretext: (1) Nichols took the
"extraordinary step" of placing him under surveillance; (2) Nichols
never consulted any medical professional about whether Colburn's
activities on January 28 and 29 were consistent with those of
someone suffering from a migraine; (3) Nichols departed from its
progressive discipline policy in discharging him without warning;
(4) Nichols's human resources administrator, Christine Fox, seemed
hostile toward him; and (5) the temporal relationship between his
taking leave and his termination.
The hiring of the investigator, alone or in combination,
does not suffice to show that the employer's reasons for
terminating Colburn were pretext. Nichols had hired private
investigators at least five times in the past, and Colburn produced
no evidence that similarly situated employees about whom the
employer was suspicious were treated differently. See Allen Health
Sys., 302 F.3d at 835 ("An employee can prove pretext by showing
the employer meted out more lenient treatment to similarly situated
employees . . . who did not engage in protected activity." (citing
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994))).
As to the employer's grounds for suspicion that led to
the hiring of the investigator, Colburn does not produce any
question of whether it is "correct to state that when you were
experiencing . . . a migraine you couldn't . . . perform any
activities, including driving," Colburn answered, "Correct."
-25-
evidence disputing the employer's statement that it could not
always reach him at home when he was out on leave. Also, he admits
that he failed to provide the doctors' reports needed to support
his application for short-term disability and leave. As for his
claim that the employer should have taken it upon itself to secure
the medical reports and research the effects of his migraines, the
employer had no need to consult medical experts about the symptoms
of migraines; it relied on the employee's own description that he
could not do anything -- even drive -- during a migraine. Its
choice to rely on Colburn's own words does not prove pretext -- it
tends to show the opposite.
Moreover, there was no evidence to support Colburn's
claim that the employer failed to follow its progressive discipline
policy. That policy provides for immediate termination on account
of serious misconduct -- a category that Nichols reasonably
determined encompassed Colburn's going to the gym and driving
around doing errands while purportedly too sick to work. Its
decision to discharge him was within the bounds of its disciplinary
policy and raises no inference of pretext. See id.
Nor does a single administrator's "tone" show pretext.
Colburn made no showing that Christine Fox had anything to do with
the decision to terminate his employment. Even assuming,
dubitante, that Fox's conduct could be imputed to the employer and
that she was, in fact, hostile, the conversation in question took
-26-
place in December 2001, after persistent but futile efforts on the
part of the human resources department to secure from Colburn the
medical information it needed to confirm and process his disability
application; given the context, any testiness or frustration on the
part of the administrator is not evidence of pretext.
Colburn also argues that pretext can be inferred by the
fact that Nichols terminated him within days of his taking medical
leave. While "protected conduct closely followed by adverse action
may justify an inference of retaliatory motive," see Hodgens, 144
F.3d at 168 (quoting Marx v. Schnuck Markets, Inc., 76 F.3d 324,
329 (10th Cir. 1996)), Colburn began to take leave in October 2001
and was not terminated until almost four months later, after he had
taken more than twenty-five days of leave. This chronology raises
no inference of retaliatory motive.
Throughout, Colburn has failed to produce evidence of the
sort commonly used to show pretext. There is no statement by any
decisionmaker evidencing retaliatory motive. See Hodgens, 144 F.3d
at 168-69. And there is no evidence that comparably situated
employees, caught out in a lie, were not fired. See Allen Health
Sys., 302 F.3d at 835.
This leaves one other argument by Colburn, which is about
the evidence pertinent to this issue. At his deposition, he
testified that he could not engage in any activity, including
driving, when he had a migraine and that his disability application
-27-
was correct when it said the same thing. In certain sections of
his summary judgment affidavit, however, he claimed that he, in
fact, could engage in minimal activities, such as driving and
shopping, during the onset and aftermath of his migraines, which
were distinct phases separate from the most painful acute phase.
The district court struck the sections of the affidavit that
referred to symptoms experienced at the onset of a migraine for
being inconsistent with Colburn's deposition testimony. The
district court was well within its discretion to do so under
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir.
1994).
Colburn's argument on appeal that his change of testimony
was permissible also misses the point. He had told his employer
that he could not drive or engage in any activity while he had a
migraine. Whether he actually can drive during the onset or
aftermath of a migraine is irrelevant. Based on the information he
gave the employer, the employer's conclusion that he falsified his
reasons for being out is hardly pretextual.
On this record, we find insufficient evidence for any
factfinder to connect Nichols's termination of Colburn with any
retaliatory animus on the part of the employer.
IV.
Summary judgment for defendant is affirmed. Costs are
awarded to defendant.
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Colburn v. Parker Hannifin/Nichols Portland Division
Court: Court of Appeals for the First Circuit
Date filed: 2005-11-18
Citations: 429 F.3d 325
Copy Citations