United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 22, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-31199
____________
PHYLLIS M SMITH,
Plaintiff - Appellant,
versus
EAST BATON ROUGE PARISH SCHOOL BOARD,
Defendant - Appellee.
Appeal from the United States District Court
For the Middle District of Louisiana
Before GARWOOD, DAVIS, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Phyllis Smith appeals the district court’s summary judgment in favor of the defendant East
Baton Rouge Parish School Board (“the Board”) on her Family and Medical Leave Act (“FMLA”)
claim and the denial of her Federal Rule of Civil Procedure Rule 59(e) motion to reconsider.
Smith was employed by the Board as its Assistant Supervisor of School Accounts. This
position required her to assist school principals and staff in accurate bookkeeping. While she was on
maternity leave, the Board reorganized the School Accounts department. As a result, Smith’s job
description was revised. She was no longer required to travel to the various schools of the district
and work directly with principals and their staffs. Instead, she audited the schools’ books from a
central office.
The FMLA guarantees eligible employees up to twelve work weeks of leave in a twelve-
month period after the birth of a child. 29 U.S.C. § 2612(a)(1)(A). The employer must thereafter
restore the employee to the same position as previously held or a comparable position with equivalent
pay, benefits, and working conditions. 29 U.S.C. § 2614(a)(1). The district court held as a matter
of law that Smith’s new position was equivalent to her former position.1
We review the district court’s summary judgment and denial of a motion to reconsider that
judgment de novo. Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000) (reviewing summary
judgment de novo and holding that although review of motion to reconsider is usually for abuse of
discretion, review of motion to reconsider a question of law is de novo). If the undisputed facts show
that, as a matter of law, the employer offered the employee an equivalent position upon her return,
summary judgment is appropriate. Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 766 (5th
Cir. 2001).
Smith argues that the district court erred in determining as a matter of law that the position
she held before taking maternity leave was equivalent to the position she was offered upon her return.
To be equivalent, an employee’s new position must be “virtually identical to the employee’s former
position in terms of pay, benefits and working conditions, including privileges, perquisites and status.
1
The Board does not contend that the fact that Smith’s former position was no longer
available warrants affirmance. See 29 U.S.C. § 2614(a)(3) (providing that an employee does not have
a right to return to a position that would have been eliminated even had she not taken leave); Hunt
v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 766 (5th Cir. 2001) (“a necessary exception is
provided if the position has been eliminated”).
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It must involve the same or substantially similar duties and responsibilities, which must entail
substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). It must
also have similar opportunities for promotion and salary increase. Darby v. Bratch, 287 F.3d 673,
679 (8th Cir. 2003). Other relevant considerations include whether employees generally view the new
and old positions as equally desirable. Hunt, 277 F.3d at 766. De minimis, intangible changes in the
employee’s position do not, however, violate the FMLA. 29 C.F.R. § 825.215(f); Mitchell v.
Dutchmen Mfg., Inc., 389 F.3d 746 (7th Cir. 2004) (requiring employee to use new hand tools in
production of recreational vehicles is a de minimis change).
In Montgomery v. Maryland, 266 F.3d 334 (4th Cir. 2001), vacated on other grounds by 535
U.S. 1075 (2002), for example, the plaintiff was offered a position as a secretary upon her return from
leave from her position as an administrative aid. She suffered no loss in benefits. Id. at 336. She
alleged, however, that her former position was “truly administrative” while her new position consisted
of “the simplest, most menial of clerical functions: answering the phone, taking messages, typing
simple correspondence, and the like.” Id. at 341. She further alleged that her former position came
with its own work area whereas her new position required her to share a room with another
employee. Id. The Fourth Circuit held that as a matter of law, these allegations established only a
de minimis change in position.
In the case at bar, it is undisputed that Smith was offered the same salary in her new position
as Assistant Supervisor of School Accounts. Both positions involved school accounting
responsibilities, and Smith conceded that the job descriptions and title are very similar. She
nevertheless argues that the new position was not equivalent because it no longer required her to
travel to various schools in the district to provide bookkeeping training and support to principals and
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secretaries. Her new position instead required her to perform auditing functions in a single office.
Like in Montgomery, these sorts of de minimis, intangible differences do not give rise to FMLA
liability.2
Accordingly, we AFFIRM the district court’s denial of Smith’s motion for reconsideration
and its summary judgment for the Board.
2
Smith also argues that she was not reinstated in “the same or a geographically proximate worksite” because
she previously traveled to various schools to perform bookkeeping functions whereas under her new position, she
performed bookkeeping functions in a single office. See 29 C.F.R. § 825.215(e)(1) (“The employee must be reinstated
to the same or a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting
time or distance) from where the employee had previously been employed.”). She cites no evidence that her new
position required any additional travel.
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