Colburn v. Parker Hannifin/Nichols Portland Division

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."

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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

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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

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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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