RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hoge v. Honda of America Nos. 03-3452/3477 ELECTRONIC CITATION: 2004 FED App. 0317P (6th Cir.) File Name: 04a0317p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Mary Ellen Fairfield, VORYS, SATER, FOR THE SIXTH CIRCUIT SEYMOUR & PEASE, Columbus, Ohio, for Appellant. _________________ Gary A. Reeve, REEVE & WATTS, Worthington, Ohio, for Appellee. ON BRIEF: Mary Ellen Fairfield, VORYS, LORI HOGE, X SATER, SEYMOUR & PEASE, Columbus, Ohio, for Plaintiff-Appellee/ - Appellant. Gary A. Reeve, REEVE & WATTS, Worthington, Ohio, for Appellee. Joshua J. Morrow, Cross-Appellant, - MARSHALL & MORROW, Columbus, Ohio, for Amicus - Nos. 03-3452/3477 - Curiae. v. > , _________________ - HONDA OF AMERICA MFG ., - OPINION INC., - _________________ Defendant-Appellant/ - Cross-Appellee. - CLELAND, District Judge. This appeal concerns the - timing and nature of an employee’s right to job restoration N under the Family Medical Leave Act (“FMLA”), 29 U.S.C. Appeal from the United States District Court § 2614(a). On February 14, 2002, the United States District for the Southern District of Ohio at Columbus. Court for the Southern District of Ohio granted Plaintiff Lori No. 00-00995—Edmund A. Sargus, Jr., District Judge. Hoge partial summary judgment on her claim for relief under the FMLA. The district court determined that, after Plaintiff Argued: June 16, 2004 appeared and attempted to return to work on June 27, 2000, she was entitled to be restored to her former position or an Decided and Filed: September 16, 2004 equivalent position with Defendant Honda of American Manufacturing, Inc. (“Honda”) by June 28, 2000 because she Before: RYAN and COOK, Circuit Judges; CLELAND, was returning from authorized FMLA leave, ruling that District Judge.* Honda violated the FMLA when it failed to return Plaintiff to an equivalent position until July 31, 2000. The district court subsequently awarded Plaintiff monetary damages, attorneys’ fees, and costs. Defendant appeals, arguing that the FMLA required Honda to reinstate Plaintiff to her employment position or an * The Ho norable Robert H. Cleland, United States District Judge for equivalent position only within a reasonable time, not the Eastern District of Michigan, sitting by designation.
1 Nos. 03-3452/3477 Hoge v. Honda of America 3 4 Hoge v. Honda of America Nos. 03-3452/3477
immediately, and that there is no issue of fact that Honda did On April 20, 2000, Honda approved Hoge’s request for so in this case. Honda claims that Plaintiff’s physical continuous FMLA leave from May 11 until June 12, 2000 for limitations, her unanticipated return, and the significant abdominal surgery unrelated to her back injury. On or about changes made by Honda to its production processes during a June 12, 2000, Hoge telephoned Honda to request an “model changeover” reasonably prevented Honda from extension of her FMLA leave, informing Defendant that she restoring Plaintiff to work until July 31, 2000. would need additional time to recover from her abdominal surgery. Although the parties agree that Honda approved two Plaintiff cross-appeals, challenging three of the district requested extensions of FMLA leave beyond Plaintiff’s court’s determinations. First, Plaintiff claims that the lower original June 12 expected return date, they dispute the date of court erred in determining that Plaintiff was entitled to be her anticipated return. reinstated under the FMLA, 29 U.S.C. § 2614(a), by June 28, 2000, arguing that Honda should have reinstated her The lower court concluded that “the undisputed evidence immediately on June 27, 2000. Second, she challenges the reveals . . . that Plaintiff failed to give any advance notice of district court’s determination that she waived her FMLA right her return so as to allow Defendant time to immediately to full restoration by agreeing to a “Gradual Return to Work” locate an equivalent position.” On the other hand, Plaintiff program on July 31, 2000. Third, she appeals the district states that she never requested FMLA beyond June 26 and court’s decision on her request for liquidated damages. that Honda’s documentation shows that her FMLA leave was twice extended and was scheduled to end on June 26, 2000. We affirm in part, reverse in part, and remand for further Examining the evidence in the record reveals the existence of proceedings consistent with this opinion. an issue of fact on when Honda expected Plaintiff to return. I. FACTS AND PROCEDURAL HISTORY The evidence of Hoge’s expected return date is equivocal. In a letter dated June 28, 2000, Honda approved a continuous In November 1995, Plaintiff Lori Hoge, a production FMLA leave extension “beginning on 6/12/00 and ending on associate at Honda’s East Liberty Ohio plant, sustained a back 7/19/00.” The letter stated that Honda “expected [Plaintiff] injury in a non-work related car accident. She was to return to work at the beginning of [her] shift on 7/20/00.” hospitalized, took an extended leave of absence from her job, However, in another letter dated June 30, signed by a and returned to work in March 1996. Her injury, a fracture of different representative of Honda’s Leave Coordination a lumbar vertebrae, imposed several permanent physical Department, Mark Lippencott, Honda approved continuous restrictions on her work activities. Plaintiff’s permanent work FMLA leave for Hoge from June 26, 2000 (the day before restrictions included: no jumping in or out of cars; no lower Plaintiff attempted to return to work) until July 12, 2000 with back extensions in excess of fifteen degrees; no lower back her expected return on July 13, 2000. Mr. Lippencott signed flexion in excess of thirty degrees; no pushing or pulling liner a third letter sent to Plaintiff, also dated June 30, 2000, which racks; no lifting of more than fifteen pounds; and a forty-hour approved continuous “Medical leave” from July 13 until workweek limitation. After her back injury, Hoge returned to December 31, 2000. These documents reveal that Honda work on the “door line,” a position that accommodated her approved (although possibly ex post) Plaintiff’s absence from physical restrictions. She worked on the door line, taking work as FMLA leave for the period between June 12 and June intermittent FMLA leave for her back injury, until she took 27, 2000 and also suggest that Honda did not expect Plaintiff the approved FMLA leave leading to the instant dispute. to return to work on the morning of June 27. On the other Nos. 03-3452/3477 Hoge v. Honda of America 5 6 Hoge v. Honda of America Nos. 03-3452/3477
hand, Plaintiff’s affidavit states that she did not request than full time and her weekly hours increased over six weeks. FMLA leave beyond June 26, 2000. Further, a leave of Honda did not restore Plaintiff to a full-time work schedule of absence extension request, dated June 19, 2000 and approved forty hours per week until September 18, 2000. by Honda on June 28, 2000, establishes June 26, 2000 as the return date for Hoge. Plaintiff filed a two-count complaint against Honda, alleging violation of her FMLA rights and wrongful adverse During Hoge’s leave, Honda continued instituting a “new employment action in violation of Ohio public policy. The model changeover” that included multiple engineering and parties voluntarily dismissed the state claim, leaving only the stylistic changes for the production of its year 2000 models. FMLA interference claim. The parties filed cross-motions for The model changeover directly affected Honda’s assembly summary judgement and the district court granted Plaintiff’s department where Hoge worked and was gradually motion in part and denied Defendant’s motion. The district implemented between February 8 and August 15, 2000. court ruled that Defendant violated the FMLA, 29 U.S.C. §§ 2615(a)(1) and 2614(a), by failing to reinstate Plaintiff to After obtaining a release from her treating physician, Dr. her position on the door line or an equivalent position by June Ronald Spier, Plaintiff appeared for work on June 27, 2000, 28, 2000. The district court ruled that Plaintiff had a right to expecting to return to her door line position. Upon her return, restoration to her door line position or an equivalent under she presented to Honda’s medical department a “Physician’s 29 U.S.C. § 2614(a), notwithstanding the fact that she Permit” which stated that she was able to return to her continued to have permanent physical restrictions associated previous position on the door line. Plaintiff returned with the with her back injury. The lower court also found that it was same physical restrictions associated with her back injury that undisputed that “Defendant had several jobs which Plaintiff she had before taking leave. She expected to be placed in a could perform as to all essential functions, since she [was] position which accommodated those restrictions. The currently working in such position and ha[d] been in one or medical department contacted Brett Strine, the person more of such positions since her return to work on July 31, responsible for placing Hoge. Mr. Strine considered possible 2000.” The district court also rejected Defendant’s argument placements in light of the ongoing model changeover and that 29 U.S.C. § 2614 permits employers a “reasonable time” staffing levels, but informed Plaintiff that no positions were to reinstate an eligible employee returning from approved available. Honda then conducted a placement review but did FMLA leave, concluding that Defendant violated the FMLA not find a suitable position for Plaintiff until July 26, 2000. by failing to reinstate Plaintiff to a position by June 28. The Hoge eventually returned to a position on the engine line on court, however, also dismissed Plaintiff’s argument that she July 31, 2000. Honda claims that the delay in finding an was entitled to immediate restoration on June 27 because, in equivalent position was reasonable and was caused by several its view, the undisputed evidence revealed that she failed to factors including Plaintiff’s unexpected return and the time give Honda any advance notice of her return. The district required to locate an equivalent position to accommodate court further ruled that Plaintiff could not recover lost wages Hoge’s physical restrictions in light of the substantial changes associated with her gradual return to work because Plaintiff’s made to its production processes. physician approved the GRTW program and Plaintiff did not object. The district court found no evidence that Plaintiff Plaintiff’s restoration to a position on the engine line was made any attempt to take advantage of Honda’s policy which accomplished in accordance with a “Gradual Return to Work” permitted any associate to terminate a gradual return to work (“GRTW”) program. Under this program, Hoge worked less Nos. 03-3452/3477 Hoge v. Honda of America 7 8 Hoge v. Honda of America Nos. 03-3452/3477
program and to return to full-time employment with physician III. DISCUSSION approval. A. The FMLA The court denied Plaintiff’s motion for liquidated damages under 29 U.S.C. § 2617(a)(1)(A) and granted Plaintiff’s The FMLA entitles an eligible employee to as many as application for attorneys’ fees and costs under 29 U.S.C. twelve weeks of leave during any twelve-month period if the § 2617(a)(3). The district court awarded Plaintiff $18,112.50 employee has a “serious heath condition that makes the in attorneys’ fees and $1,244.99 in costs. employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The statute II. STANDARD OF REVIEW defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves (A) We review the district court’s summary judgment inpatient care in a hospital, hospice, or residential medical determinations under Federal Rule of Civil Procedure 56 de care facility; or (B) continuing treatment by a health care novo. Arban v. West Publ’g Corp., 345 F.3d 390, 400 (6th provider.” Id. at § 2611(11). An employee seeking to use his Cir. 2003). Summary judgment is appropriate FMLA leave must notify the employer that FMLA-qualifying leave is needed. Arban., 345 F.3d at 400; Chandler, 283 if the pleadings, depositions, answers to interrogatories, F.3d at 825; Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th and admissions on file, together with affidavits, if any, Cir. 1998). The FMLA also gives the Secretary of Labor show that there is no genuine issue as to any material fact notice and comment rule-making authority and directs the and that the moving party is entitled to judgment as a Secretary to issue regulations “necessary to carry out” the matter of law. Act. 29 U.S.C. § 2654; Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002). Fed. R. Civ. P. 56(c). In addition, “[w]e may affirm a decision of the district court if correct for any reason, This court recognizes two distinct theories for recovery including one not considered below.” United States Postal under the FMLA: (1) the “entitlement” or “interference” Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 330 F.3d theory arising from 29 U.S.C. § 2615(a)(1); and (2) the 747, 750 (6th Cir. 2003). “retaliation” or “discrimination” theory arising from 29 U.S.C. § 2615(a)(2). As this court has stated, “[t]he This court reviews an award of liquidated damages under [FMLA] creates ‘prescriptive and proscriptive employee the FMLA under the same standard used for such rights.’” Taylor v. Union Inst., 30 Fed.Appx. 443, 2002 WL determinations under the Fair Labor Standards Act. Chandler 252443, at *7 (6th Cir. Feb. 19, 2002) (unpublished opinion) v. Specialty Tires of Am., 283 F.3d 818, 827 (6th Cir. 2002). (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 Thus, we review the lower court’s ruling on liquidated (1st Cir. 1998)); see also Arban, 345 F.3d at 400-01. damages for an abuse of discretion. Id. Plaintiff’s claim rests on the “interference” theory. The interference provision of the Act, § 2615(a)(1), creates prescriptive rights. Taylor, 30 Fed.Appx at 452, 2002 WL 252443, at *7. It provides that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or Nos. 03-3452/3477 Hoge v. Honda of America 9 10 Hoge v. Honda of America Nos. 03-3452/3477
the attempt to exercise, any right provided in this subchapter.” Section 2614(a) describes the FMLA restoration right. It 29 U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b). To provides, in relevant part: prevail on a claim for violation of an employee’s prescriptive rights under § 2615(a)(1), the plaintiff need not show that he (a) Restoration to position was treated worse than other employees, just that he was denied an entitlement under the Act. Taylor, 30 Fed. Appx. (1) In general at 452, 2002 WL 252443, at *7. An employer may violate § 2615(a)(1) regardless of the intent behind its conduct. Except as provided in subsection (b) of this section, Arban, 345 F.3d at 401; Hodgens, 144 F.3d at 159. any eligible employee who takes leave under section 2612 of this title for the intended purpose of the B. Restoration Under 29 U.S.C. § 2614(a) leave shall be entitled, on return from such leave--
To prevail on her interference claim under § 2615(a)(1), (A) to be restored by the employer to the position Plaintiff must establish that Honda interfered with a FMLA of employment held by the employee when the right to medical leave or to reinstatement following FMLA leave commenced; or leave. Arban, 345 F.3d at 401; see also Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003). Hoge must (B) to be restored to an equivalent position with establish that: (1) she was an eligible employee, (2) Honda is equivalent employment benefits, pay, and other a covered employer, (3) she was entitled to leave under the terms and conditions of employment. FMLA, (4) she gave Honda notice of her intent to take leave, and (5) Honda denied her FMLA benefits or interfered with ... FMLA rights to which she was entitled. Cavin, 346 F.3d at (3) Limitations 719. The parties do not dispute the first four of these elements; their dispute turns on the fifth. Plaintiff maintains, Nothing in this section shall be construed to entitle and the lower court ruled, that Honda interfered with any restored employee to- Plaintiff’s FMLA rights and entitlement to restoration to her position on the door line or an equivalent under 29 U.S.C. ... § 2614. Honda maintains that Hoge’s right to restoration under the Act required it to restore her only within a (B) any right, benefit, or position of employment reasonable time after she was capable of returning. other than any right, benefit, or position to which the employee would have been entitled had the The FMLA not only grants the statutory right for an employee not taken the leave. eligible employee to take up to twelve weeks of leave, but also creates the concomitant right for an employee who has 29 U.S.C. § 2614(a) (emphasis added).1 taken leave “to be restored by the employer to the position of employment held by the employee when the leave commenced.” 29 U.S.C. § 2614(a)(1)(A); Pharakhone v. 1 Nissan N. Am., Inc., 324 F.3d 405, 407 (6th Cir. 2003). An “equivalent po sition” under 29 U.S.C. § 2 614 (a)(1)(B) is
one that is virtually identical to the employee's former position Nos. 03-3452/3477 Hoge v. Honda of America 11 12 Hoge v. Honda of America Nos. 03-3452/3477
The Secretary of Labor has also promulgated a regulation have been entitled had the employee not taken the leave.” describing employee rights on returning from FMLA leave. 29 U.S.C. § 2614(a)(3)(B); 29 C.F.R. § 825.216(a) (“An 29 C.F.R. § 825.214. It provides: employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee (a) On return from FMLA leave, an employee is entitled had been continuously employed during the FMLA leave to be returned to the same position the employee held period.”). An employee returning from FMLA leave is not when leave commenced, or to an equivalent position entitled to restoration unless he would have continued to be with equivalent benefits, pay, and other terms and employed if he had not taken FMLA leave. For instance, an conditions of employment. An employee is entitled to employer need not restore an employee who would have lost such reinstatement even if the employee has been his job or been laid off even if he had not taken FMLA leave. replaced or his or her position has been restructured to See Arban, 345 F.3d at 401; Pharakhone, 324 F.3d at 407; accommodate the employee's absence. See also Chandler, 283 F.3d at 825. § 825.106(e) for the obligations of joint employers. In addition, the right to restoration does not arise unless the (b) If the employee is unable to perform an essential returning employee is able to perform the essential functions function of the position because of a physical or mental of the position or an equivalent. 29 C.F.R. § 825.214(b) (“If condition, including the continuation of a serious health the employee is unable to perform an essential function of the condition, the employee has no right to restoration to position because of a physical or mental condition, including another position under the FMLA. However, the continuation of a serious health condition, the employee has employer's obligations may be governed by the no right to restoration to another position under the FMLA.”); Americans with Disabilities Act (ADA). See § 825.702. See also Green v. Alcan Aluminum Corp., 198 F.3d 245, 1999 WL 1073686, at *2 (6th Cir. Nov. 16, 1999) (unpublished Id. (emphases added). opinion) (no FMLA violation when twelve weeks expired and plaintiff could not perform essential functions); Reynolds v. There are a few limitations (sometimes referred to as Phillips & Temro Indus., Inc., 195 F.3d 411, 414 (8th Cir. exceptions) on an employee’s right to restoration upon timely 1999) (quoting 29 C.F.R. § 825.214(b)). return from FMLA leave under § 2614(a). First, the substantive right is not absolute because the right established Next, the FMLA permits employers to apply a uniform “shall [not] be construed to entitle any restored employee to policy or practice that conditions restoration under § 2614(a) . . . any right, benefit, or position of employment other than on the receipt of medical certification from the employee’s any right, benefit, or position to which the employee would healthcare provider stating that the employee is able to resume work. 29 U.S.C. § 2614(a)(4). Further, an employer may delay restoration until an employee submits the required in terms of pay, benefits and working conditions, including “fitness-for-duty” certification. 29 C.F.R. §§ 825.310(f), privileges, perquisites and status. It must involve the same or 825.311(c) & 825.312(c). However, the regulations permit an substantially similar duties and responsibilities, which must employer to seek such a fitness-for-duty certification “only entail substantially equivalent skill, effort, responsibility, and with regard to the particular health condition that caused the authority. employee’s need for FMLA leave.” 29 C.F.R. § 825.310(c). 29 C.F.R. § 82 5.215(a). Nos. 03-3452/3477 Hoge v. Honda of America 13 14 Hoge v. Honda of America Nos. 03-3452/3477
None of these limitations to Hoge’s right to restoration phrase into a statute when Congress has left it out. Keene apply. Honda does not dispute Plaintiff’s right to restoration Corp. v. United States, 508 U.S. 200, 208 (1993); United or argue that any of the above limitations apply. Rather, States v. Health Possibilities, P.S.C., 207 F.3d 335, 339-40 Honda disputes the timing of its duty to restore Hoge to an (6th Cir. 2000). As we have stated before: “‘It is not the equivalent position, arguing that the terms and structure of the Court’s role to address perceived inadequacies in [a statute].’” FMLA required it to restore Hoge to an equivalent position In re Aberl, 78 F.3d 241, 244 (6th Cir. 1996) (quoting Wolf only within a reasonable time after learning of her readiness Creek Collieries v. Robinson, 872 F.2d 1264, 1269 (6th Cir. to work under the circumstances in her case. Honda asks this 1989) (alteration in original)). Court to reverse the district court’s ruling and enter summary judgment on its behalf because there is no genuine issue of The FMLA’s text, set forth in more detail above, provides fact that Honda complied with the FMLA’s requirement to that an employee returning from FMLA leave “shall be restore Plaintiff within a reasonable time after learning she entitled, on return from such leave – . . . to be restored by the was ready to return to work. It argues that the FMLA should employer” to his prior position or an equivalent position with be read in pari materia with the Americans With Disabilities the same conditions of employment. 29 U.S.C. § 2614(a). Act (“ADA”) and that employers must be afforded a The plain meaning of “on return from such leave” is not reasonable amount of time to evaluate whether an employee ambiguous and, contrary to Honda’s argument, will not be is disabled, to identify reasonable accommodations, and to construed to mean “within a reasonable time after the minimize potential liability under other federal and state laws. employee is able to return from such leave.” If an employee In short, Honda asks this court to read a reasonableness returning from FMLA leave can perform the essential element into the timing of when a returning employee is functions of his previous or an equivalent position, the right entitled to restoration under 29 U.S.C. § 2614(a) where such to restoration is triggered on the employee’s timely return an element does not exist in the text. from leave. 29 U.S.C. § 2614(a); 29 C.F.R. § 825.214(b). If Congress had intended to permit employers to restore We decline Honda’s invitation. “The starting point in employees within a reasonable time after their need for interpreting a statute is its language, for ‘[i]f the intent of FMLA leave had ended, it would have so stated. See Congress is clear, that is the end of the matter.’" Good 42 U.S.C. § 12112(b)(5)(A) (discrimination under the ADA Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) includes “not making reasonable accommodations to the (quoting Chevron U.S.A. Inc. v. Natural Res. Defense known physical or mental limitations of an otherwise Council, Inc., 467 U.S. 837, 842 (1984)). If clear, the plain qualified individual with a disability”). The text of the meaning of the statutory language controls; departure from FMLA makes restoration required once an employee’s the plain language of a statute is appropriate only in “‘rare entitlement arises (i.e., once he is capable of performing the cases [in which] the literal application of a statute will job’s essential functions). It also provides an employer the produce a result demonstrably at odds with the intentions of ability to condition restoration upon medical certification that its drafter . . . or when the statutory language is ambiguous.’” the employee is able to return to work. The clear import of Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 842 this language requires restoration upon return, unless one of (6th Cir. 1994) (citation omitted). Moreover, “we ordinarily the specific limitations or exceptions apply. See Chandler, resist reading words or elements into a statute that do not 283 F.3d at 825 (“With exceptions not at issue here, an appear on its face.” Bates v. United States, 522 U.S. 23, 29 employer is obliged to restore the employee to her prior (1997). In fact, courts have a duty to refrain from reading a position or an equivalent position upon return from leave.”). Nos. 03-3452/3477 Hoge v. Honda of America 15 16 Hoge v. Honda of America Nos. 03-3452/3477
Moreover, because “[a]n employee may not be required to employee may not be required to take more FMLA leave take more leave than necessary to address the circumstances than necessary to resolve the circumstance that for which leave was taken,” an employer would violate the precipitated the need for leave. In both of these FMLA’s prohibition against interfering with FMLA rights if situations, the employer may require that the employee it decided to extend an employee’s leave anytime such an provide the employer reasonable notice (i.e., within two extension would be “reasonable” under the circumstances. business days) of the changed circumstance where 29 C.F.R. § 825.312(e); 29 U.S.C. § 2615(a)(1). foreseeable. The employer may also obtain information on such changed circumstances through requested status Although the FMLA does not define the time when an reports. employee’s “return” from FMLA leave becomes effective, thus triggering an employer’s duty to restore a returning 29 C.F.R. § 825.309(c) (emphasis added). Section 825.312(e) employee, the FMLA’s regulatory scheme specifically of the Department of Labor’s FMLA regulations further contemplates circumstances where the date of an employee’s provides: “If the employee is able to return to work earlier return from FMLA leave may change. Ordinarily, the than anticipated, the employee shall provide the employer two employer and employee will communicate and establish the business days notice where feasible; the employer is required return date for an employee taking FMLA leave. In such to restore the employee once such notice is given.” 29 C.F.R. cases, the timing of the employee’s “return” will not be at § 825.312(e). issue and the restoration entitlement will arise when the employee returns in a timely manner and in a physical In this case, Hoge was originally expected to return from condition to perform the essential functions of the position he her abdominal surgery leave on June 12, 2000. As of that left, and after providing the medical certification if required date, Honda would have been aware that it would be required by an employer under 29 U.S.C. § 2614(a)(4). In fact, to restore her to work. It is undisputed, however, that Hoge 29 C.F.R. § 825.309 facilitates communications regarding the requested an extension of her FMLA leave beyond June 12. return date for an employee on FMLA leave by permitting an The record does not establish her new expected return date employer to “require an employee on FMLA leave to report and the parties dispute whether Honda had reason to expect periodically on the employee’s status and intent to return to her return on the morning of June 27. If her early return from work.” approved leave was not anticipated, then the regulations governing an employee’s early return from FMLA leave Moreover, the FMLA regulations specifically address apply. Under 29 C.F.R. §§ 825.309(c) and 825.312(e), circumstances in which an employee needs to use more or Plaintiff was required to provide Honda reasonable notice less FMLA leave time than originally anticipated. In such (i.e., two business days) that she would be returning sooner cases, employers are entitled to reasonable notice of an than expected. Thus, by showing up for work at the employee’s return. beginning of the work day, Hoge put Honda on reasonable notice that she was ready and capable of returning to the It may be necessary for an employee to take more leave position that she left (with the accommodation of her physical than originally anticipated. Conversely, an employee limitations associated with her back injury) or its equivalent. may discover after beginning leave that the circumstances have changed and the amount of leave If Honda did not have reasonable notice of Hoge’s return originally anticipated is no longer necessary. An date, it was not required to permit Plaintiff to return to work Nos. 03-3452/3477 Hoge v. Honda of America 17 18 Hoge v. Honda of America Nos. 03-3452/3477
until June 29, 2000, two business days after receiving notice impart a reasonable delay period for the employer to find a of her willingness and ability to return to work. Conversely, suitable position. if Honda did have reasonable notice that Hoge’s extension of FMLA leave was to end on June 26, 2000, it was required to The right to restoration arises when the employee is able to restore her to a door line position or an equivalent on June 27, perform the essential functions of the position he left or an 2000 because it does not dispute that Hoge was capable of equivalent. If an employee can do so and has provided performing the essential functions of such a position. medical certification (if required by a uniform policy), the employer cannot simply delay restoration while it takes a Honda argues that the FMLA has no time limit on when reasonable amount of time to find a suitable position. Again, restoration must occur and that restoration of an employee a “reasonable” delay in restoration after reasonable notice is need only be reasonable under the circumstances. Honda given would force the employee to take more FMLA leave claims that an “immediate restoration” rule is not required by than is required and would interfere with an employee’s the text of § 2614(a) because it is silent as to the timing of exercise of FMLA rights. 29 U.S.C. § 2615(a)(1); 29 C.F.R. when an employer must restore an employee returning from § 825.312(e). FMLA leave. It argues that the flexible process contemplated by the statutory structure mandates that the court impart a Next, we are not persuaded by Defendant’s argument to reasonableness element to an employer’s duty to restore an read the FMLA in pari materia with the ADA because the employee under § 2614(a). Honda also argues that the FMLA statutes deal with the same subject. See Jones v. St. Louis- should be read in pari materia with the ADA and that failing San Francisco Ry. Co., 728 F.2d 257, 262 (6th Cir. 1984). to read a reasonableness requirement into an employer’s duty Although the FMLA and the ADA both regulate the to restore an employee under § 2614(a) would expose employer-employee relationship, they protect an employee in employers to potential ADA and state law liability. We are different ways. We have recently highlighted this distinction. not persuaded. The FMLA protects an employee from adverse action as As discussed above, the language found in § 2614(a) is not a result of his taking leave for a serious medical ambiguous. Additionally, the structure of the FMLA does not condition. It does not protect an employee from adverse require the court to read a reasonableness element into the action motivated by the underlying medical condition restoration provision. The provision permitting an employer itself. Although the factual scenarios that give rise to an the opportunity to restore an employee to the same position or FMLA or ADA cause of action may often coincide, the an equivalent does not express clear Congressional intent to legal entitlements that flow from these facts will differ. permit employers a reasonable time to delay restoration. The “equivalent position” provision under § 2614(a)(1)(B) Chandler, 283 F.3d at 825. “The ADA and the FMLA have recognizes the dynamic needs of employers and permits them divergent aims, operate in different ways, and offer disparate to restore employees to positions other than the exact one they relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. left, but it does not permit the employer to delay an 2001); Watkins v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir. employee’s restoration for a “reasonable time” after returning 1998) (FMLA and ADA “causes of action may interrelate, from FMLA leave. Likewise, the requirement under [but] they involve separate and distinct statutory claims”). 29 C.F.R. § 825.214(b) that a returning employee be capable Unlike the FMLA, the finding of a disability is the key “that of performing the essential functions of the job does not unlocks the storehouse of statutory protections” under the Nos. 03-3452/3477 Hoge v. Honda of America 19 20 Hoge v. Honda of America Nos. 03-3452/3477
ADA. Navarro, 261 F.3d at 101. The ADA prohibits under whichever statutory provision provides the greater discrimination against employees who have a disability as rights to employees. When an employer violates the FMLA defined by the statute. 42 U.S.C. § 12112(a). An employer and a discrimination law, an employee may be able to recover must make “reasonable accommodations to the known under either or both statues.”) Under 29 U.S.C. § 2614(a), an physical or mental limitations of an otherwise qualified employee is entitled to be restored if he can perform the individual with a disability.” Id. at § 12112(b)(5)(A). essential functions of his job. If he can, he is entitled to restoration and no potential ADA liability exists because he Honda argues that Plaintiff’s return raised potential is capable of doing the work done previously. If he cannot, application of the ADA and that the FMLA should be read to no FMLA liability follows for failing to restore that include a reasonableness element like the ADA. Honda employee. However, the employer must then also look to the contends that it should be given reasonable time to find a separate and distinct potential for liability under the ADA or position as a reasonable accommodation of Plaintiff’s other statutes. physical restrictions. This argument is unavailing. “[T]he leave provisions of the [FMLA] are wholly distinct from the The position Hoge left accommodated her physical reasonable accommodation obligations of employers covered limitations associated with her back injury and Honda was under the [ADA].” 29 C.F.R. § 825.702(a). required to restore her to that position or an equivalent upon her return. Honda does not argue that it did not have an The ADA implications surrounding Hoge’s physical equivalent position or that Plaintiff could not perform the limitations existed prior to her FMLA leave associated with essential functions of such an equivalent position. her abdominal surgery and the uncontested evidence shows that she was capable of performing the essential functions of Next, Honda’s assertion that construing § 2614(a) to the position which she left. As such, Honda was not include an “immediate” right to restoration on return from confronted with new potential ADA liability. Honda points FMLA leave would render certain regulations passed by the out that courts have recognized that an employer’s inquiry Secretary of Labor invalid is without merit. The FMLA under the ADA to identify alternative positions is a time requires restoration “on return” from leave and the regulations consuming process and that an employer is permitted a that permit delay in restoration merely identify when an reasonable time to make a “reasonable accommodation” employee’s return is effective, triggering the right to inquiry under the ADA. See Kiphart v. Saturn Corp., 251 restoration. These regulations are therefore not inconsistent F.3d 573, 586 (6th Cir. 2001) (“When job reassignment is with the statute. Although we recognize Honda’s potential appropriate [under the ADA], an employer ‘should reassign needs to juggle the realties of a dynamic business the individual to an equivalent position . . . if the individual environment with its obligations under the FMLA, its policy is qualified, and if the position is vacant within a reasonable arguments (offered to support reading an implicit amount of time.’" ) (quoting 29 C.F.R. § 1630.2(o)); see also reasonableness requirement into the statutory language) Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. necessarily fall on deaf ears. Such policy arguments are more 2004); Burns v. Coca-Cola Enters., 222 F.3d 247, 257 (6th appropriately addressed to the United States House of Cir. 2000). Because the ADA may permit a reasonable time Representatives and Senate. See In re Aberl, 78 F.3d at 244. to make accommodations for statutorily disabled employees, The text is not ambiguous and the structure of the FMLA does not however, impact the FMLA’s right to restoration. 29 does not impart a reasonableness element into 29 U.S.C. C.F.R. § 825.702(a) (“An employer must [ ] provide leave § 2614(a). Nos. 03-3452/3477 Hoge v. Honda of America 21 22 Hoge v. Honda of America Nos. 03-3452/3477
We affirm the district court inasmuch as Honda was one month after learning that she was ready to return to work. required to restore Plaintiff to her previous position or its Honda made efforts to examine its new positions in light of equivalent starting at least on June 29, 2000 (two business the model changeover and Hoge’s physical restrictions. This days after receiving unambiguous notice of her return). evidence supports the district court’s good faith conclusion. However, an issue of fact exists as to whether Honda Also, the unsettled nature of the timing of an employer’s duty anticipated Hoge’s return on June 27, 2000. If Honda, in fact, to restore an employee returning from FMLA leave under the had reasonable notice that Plaintiff’s FMLA leave was to end circumstances provides a basis for the district court’s finding on June 27, 2000, she was entitled to restoration on that date. that Honda’s interpretation of 29 U.S.C. § 2614(a) was objectively reasonable. There was no abuse of discretion and C. Liquidated Damages we affirm the district court’s decision to deny liquidated damages. Section 2617(a)(1)(A)(iii) of the FMLA provides that an employer shall be liable for an amount of liquidated damages, D. Plaintiff’s Gradual Return to Work in addition to compensatory damages equal to the amount of wages, salary, employment benefits, or other compensation Plaintiff cross-appeals the district court’s conclusion that denied or lost to an employee, plus interest, by reason of an she was not entitled to damages on her FMLA claim employer’s violation of 29 U.S.C. § 2615. Chandler, 283 associated with her gradual return to work. The district court F.3d at 827. Although liquidated damages are the norm in rejected Plaintiff’s argument that she was not fully restored to cases where an employer violates § 2615, the district court an equivalent position until the end of her gradual return to may reduce such an award to comprise only compensatory work policy. It noted that the GRTW program was approved damages if the employer “proves to the satisfaction of the by Hoge’s family physician and that it was “undisputed that court that the act or omission which violated section 2615 . . . Plaintiff did not object to the gradual program” was in good faith and that the employer had reasonable notwithstanding Honda’s policy which permitted her to grounds for believing that the act or omission was not a terminate the program and return to full-time employment violation of section 2615.” 29 U.S.C. § 2617(a)(1)(A)(iii). with physician’s approval at any time. The district court “The employer must therefore show both good faith and found “no evidence that Plaintiff made any [attempt to end reasonable grounds for the act or omission.” Chandler, 283 the GRTW program] in this case. Thus, the Court [could not] F.3d at 827 (emphases in original). conclude that the simple fact that Plaintiff was placed on a gradual return to work schedule was a violation of the The record supports the district court’s finding that Honda restoration provisions of the FMLA.” had both a good faith belief that it had a reasonable time to find Plaintiff an equivalent position based on her physical We agree. Plaintiff’s family physician, Dr. Joseph restrictions and that Honda’s interpretation of the FMLA’s Ottaviano, approved the GRTW program. Further, Plaintiff restoration provision was objectively reasonable. As noted by agreed to her gradual return and failed to object. The the district court, the evidence reveals that Hoge was on undisputed evidence reveals that Plaintiff could have elected FMLA leave when Honda implemented a gradual model to terminate the GRTW program at any time with her changeover which affected its production line positions. physician’s approval, and that she failed to do so, even after Plaintiff had significant physical restrictions regarding her job obtaining a lawyer. Plaintiff argues that Honda did not return capabilities and Honda located a position for Plaintiff within her to an “equivalent position” because she did not receive Nos. 03-3452/3477 Hoge v. Honda of America 23 24 Hoge v. Honda of America Nos. 03-3452/3477
her regular full-time pay and benefits. Plaintiff complains not induce her to waive her right to restoration to an that she was not returned to a job with the same hours and equivalent position under the FMLA. pay, but understates the importance of the option she always possessed to resume working full time under the GRTW CONCLUSION program. By providing Plaintiff with the option to return to full-time work (with her own physician’s approval), Honda For the reasons stated herein, the judgment of the district placed the key in Plaintiff’s hand, and thus provided Plaintiff court is AFFIRMED IN PART, REVERSED IN PART, and with an equivalent position under 29 C.F.R. § 825.215(a). this matter is REMANDED for further proceedings consistent with this opinion. Plaintiff also relies on 29 C.F.R. § 825.220(d) to support her argument that Honda induced her to waive her FMLA rights. Section 825.220(d) provides: Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees (or their collective bargaining representatives) cannot "trade off" the right to take FMLA leave against some other benefit offered by the employer. This does not prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a "light duty" assignment while recovering from a serious health condition (see § 825.702(d)). 29 C.F.R. § 825.220(d). Plaintiff claims that she did not request the GRTW program and that she was directed to sign the GRTW form before returning to work. Plaintiff stated: “I was told I needed to sign the form before I could start my shift.” (Pl.’s Aff. at 2; JA 272.) This evidence, however, is not sufficient to establish that Honda induced or coerced Plaintiff into waiving her FMLA rights. Plaintiff’s acceptance of the GRTW program under these circumstances does not constitute a waiver of rights. This is especially true because she agreed to a restoration program that permitted her to end the gradual component of her return to work at any time. Because Plaintiff had the undisputed ability to return to work full time on the engine line any time after being restored, Honda did