Sarah Simon v. Cooperative Educational Service Agency 5

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 16, 2022
• Docket: 22-1035
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ Nos. 21-2139 & 22-1035 SARAH SIMON, Plaintiff-Appellee, v.

COOPERATIVE EDUCATIONAL SERVICE AGENCY #5, Defendant-Appellant. ____________________

Appeals from the United States District Court for the Western District of Wisconsin. No. 3:18-cv-909 — William M. Conley, Judge. ____________________

ARGUED JANUARY 7, 2022 — DECIDED AUGUST 16, 2022 ____________________

Before EASTERBROOK, ST. EVE, and KIRSCH, Circuit Judges. KIRSCH, Circuit Judge. When Sarah Simon returned from medical leave, her employer, Cooperative Educational Ser- vice Agency #5, did not allow her to return to her previous position as a lead teacher at her school. Instead, it placed her in a backwater position with fewer responsibilities that re- quired her to split her time between different schools. After a bench trial, the district court determined that Cooperative had violated the Family and Medical Leave Act and awarded 2 Nos. 21-2139 & 22-1035

Simon declaratory relief and attorney’s fees. Cooperative ap- pealed, contending that neither declaratory relief nor attor- ney’s fees are appropriate under the circumstances. We disa- gree and therefore affirm. I Cooperative Educational Service Agency #5 is a Wiscon- sin-based governmental entity that services 35 public-school districts. In July 2014, it hired Sarah Simon as an Alternative Program Lead Teacher at REACH Academy, an elementary school for children with special emotional and behavioral needs. In that role, Simon taught her assigned students, man- aged paraprofessionals, developed integrated education plans (IEPs), and communicated with parents, school dis- tricts, social workers, and law enforcement officials. In October 2016, a REACH Academy student kicked a steel door into Simon’s head, which caused her to suffer a concus- sion. Simon took FMLA-qualifying leave and was cleared to return to part-time, light-duty work on October 31, and full- time work with no restrictions on November 24. But Cooper- ative did not allow Simon to return to her previous position at REACH Academy because its business director and others had determined that doing so would present an “unreasona- ble risk.” Instead, it placed her in a support position with du- ties resembling those of a paraprofessional. Although Simon received the same salary and benefits in her new role, it in- volved significantly less responsibility, independence, discre- tion, and management than her previous Lead Teacher posi- tion. Her work involved supporting other teachers’ class- rooms, required splitting time between two elementary schools, and did not include lesson planning, evaluation, Nos. 21-2139 & 22-1035 3

reporting, direct education, communication with students’ families, input on IEPs, or assistance from paraprofessionals. Based on this treatment, Simon sued Cooperative, alleging several FMLA violations. The district court held a bench trial on one of those claims—the FMLA interference claim based on Cooperative’s failure to return Simon to an equivalent po- sition following her leave. By trial, Simon sought only: (1) an injunction requiring Cooperative to hire her for the next avail- able equivalent position at REACH Academy; (2) an injunc- tion requiring Cooperative’s employees to undergo addi- tional FMLA training; and (3) a declaration that Cooperative had violated the FMLA when it failed to return Simon to an equivalent position following her leave. After the bench trial, the district court entered a combined opinion and order in May 2021. In the opinion, the district court found that Cooperative had violated the FMLA by not returning Simon to an equivalent position following her leave. It also determined that only declaratory—rather than injunctive—relief was appropriate based on Cooperative’s hiring trends, the unavailability of Simon’s previous Lead Teacher role, and Simon’s new job elsewhere. The court’s or- der granted declaratory judgment and set a briefing schedule for Simon to submit a request for attorney’s fees and costs. But the court did not enter a separate final judgment. Cooperative filed its first notice of appeal based on this opinion and order. Over the next few months, the parties fully briefed the issues raised in preparation for oral argument. On December 17, 2021, the district court entered another opinion and order granting in part Simon’s request for attorney’s fees. On December 22, Cooperative filed a second notice of appeal based on that new opinion and order. The next day, the 4 Nos. 21-2139 & 22-1035

district court entered a standalone final judgment granting Simon both a declaratory judgment and $59,773.62 in attorney’s fees. We held oral argument on January 7, 2022, and asked about appellate jurisdiction. That same day, Cooperative filed another notice of appeal stating that it challenged the district court’s judgment on both the merits and attorney’s fees. The December 22 and January 7 notices of appeal have been consolidated into one successive appeal, which the parties have now fully briefed. Because the facts and legal ar- guments are adequately presented in the briefs, record, and from the January 7 oral argument, we have agreed to decide the successive appeal without another oral argument because doing so would not significantly aid the decisional process. See Fed. R. App. P. 34(a)(2)(C). II Before reaching the merits, we first address the messy path this appeal has taken and explain the basis for our appellate jurisdiction. See West v. Louisville Gas & Elec. Co., 951 F.3d 827, 829 (7th Cir. 2020). We have jurisdiction over appeals of “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. When Cooperative first filed its appeal in May 2021, the district court had not yet entered a judgment in a separate document and had not otherwise signaled that its decision was final. As relevant here, Federal Rule of Civil Procedure 58(a) re- quires “every judgment” to “be set out in a separate docu- ment” to eliminate uncertainty about whether a district court’s entry is final for appellate purposes. See Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384–85 (1978) (per curiam). If a district Nos. 21-2139 & 22-1035 5

court fails to issue a separate judgment, “[a] party may re- quest that judgment be set out in a separate document as re- quired.” Fed. R. Civ. P. 58(d). We reiterate the separate-docu- ment rule’s importance because it helps keep “jurisdictional lines clear.” Sterling Nat’l Bank v. Block, 984 F.3d 1210, 1216 (7th Cir. 2021) (citation omitted). We also remind district courts of Rule 58(e)’s requirement that the entry of judgment “[o]rdinarily … may not be de- layed, nor the time for appeal extended, in order to tax costs or award fees” unless the Rule’s procedures for deferring judgment until resolution of attorney’s fees have been fol- lowed. Fed. R. Civ. P. 58(e). In some cases, it may be “more efficient to decide fee questions before an appeal is taken so that appeals relating to the fee award can be heard at the same time as appeals relating to the merits of the case.” Fed. R. Civ. P. 58 advisory committee’s note to 1993 amendment. To choose this option, however, a district court must enter an or- der stating that it is doing so before a notice of appeal has been filed and become effective. Fed. R. Civ. P. 58(e). When that procedure is not followed, judgments on the merits and on attorney’s fees are separately appealable. See Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating En- gineers & Participating Emps., 571 U.S. 177, 179, 187 (2014). Although the district court did not follow the prescribed Rule 58(e) procedure for consolidating the merits and attor- ney’s fee issues into one final judgment, that’s effectively what it did. It entered one final judgment on December 23, 2021, resolving both the merits and attorney’s fee issues. But it’s clear at this stage that the district court’s decision on both the merits and the attorney’s fees are final and that we have appellate jurisdiction over both appeals. See 28 U.S.C. § 1291; 6 Nos. 21-2139 & 22-1035

Fed. R. App. P. 4(a)(7)(A)(ii) (treating judgment as entered 150 days after entry of a dispositive order that does not amount to a proper judgment). We thus proceed to consider these is- sues. III On the merits, Cooperative contends that the district court erred by entering a declaratory judgment for two reasons. It argues first that declaratory relief is unavailable under the FMLA and, second, that Simon did not show that she was prejudiced by its FMLA violation. We review a district court’s legal conclusions following a bench trial de novo and its fac- tual findings for clear error. Murdock & Sons Const., Inc. v. Goheen Gen. Const., Inc., 461 F.3d 837, 840 (7th Cir. 2006). A The FMLA’s “Enforcement” section permits an eligible employee to bring a civil action against her employer for vio- lations “to recover the damages or equitable relief prescribed” by the statute. 29 U.S.C. § 2617(a)(2). The FMLA further di- rects that “[a]ny employer who violates section 2615 of this title shall be liable to any eligible employee affected— … for such equitable relief as may be appropriate, including em- ployment, reinstatement, and promotion.” Id. § 2617(a)(1)(B). The parties dispute whether a declaratory judgment falls within the FMLA’s authorization for “equitable relief.” If the FMLA authorizes the entry of a declaratory judgment as “eq- uitable relief,” Simon may be entitled to attorney’s fees. See Id. § 2617(a)(3). If not, then the declaratory judgment was au- thorized only by the Declaratory Judgment Act, 28 U.S.C. § 2201, which does not provide for fees. Nos. 21-2139 & 22-1035 7

Although we have not yet addressed this issue in the FMLA context, we have when interpreting a similar statute. The Employee Retirement Income Security Act (ERISA) au- thorizes civil actions “to enjoin any act or practice which vio- lates any provision of this subchapter or the terms of the plan, or … to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this sub- chapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3) (em- phasis added). In Spitz v. Tepfer, we held that a suit seeking declaratory and other relief under this subsection “was one under ERISA for appropriate equitable remedies” and noted that our precedents had “characterized suits by fiduciaries … for declaratory judgments … as actions in pursuit of ‘appro- priate equitable remedies’ under the statute.” 171 F.3d 443, 450 (7th Cir. 1999) (citing Winstead v. J.C. Penney Co., 933 F.2d 576, 580 (7th Cir. 1991) (permitting fiduciary to seek a decla- ration of its obligations under § 1132(a)(3)); see also Newell Operating Co. v. Int’l Union of United Auto., Aerospace, & Agr. Implement Workers of Am., 532 F.3d 583, 588 (7th Cir. 2008) (“[T]he fiduciary of an ERISA plan may sue for declaratory judgments, injunctions, and restitution under ERISA § 502(a)(3)’s provision for ‘appropriate equitable relief.’”) (overruled on other grounds); cf. Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 155 (1985) (Brennan, J., concurring in the judgment) (noting that § 1132(a)(3)’s authorization for “other appropriate equitable relief ... to redress” ERISA violations al- lows for declaratory judgments); Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1203 (10th Cir. 1990) (same). We thus held in Spitz that the plaintiff could seek attorney’s fees under ERISA. 171 F.3d at 450. We have been given no reason to treat the FMLA’s text (“such equitable relief as may be appropriate”) differently 8 Nos. 21-2139 & 22-1035

from ERISA’s (“other appropriate equitable relief”). See Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Comtys. Project, Inc., 576 U.S. 519, 534–35 (2015) (interpreting a federal statute by look- ing to interpretations of similar language in other statutes). And, on first principles, we are untroubled with extending these holdings to the FMLA context. The FMLA does not define “equitable relief,” and we un- derstand the phrase as a term of art. Cf. Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 13 (2015) (describing a federal statute’s use of “terms of art in equity”); Henderson v. State Farm Fire & Cas. Co., 596 N.W.2d 190, 195 n.9 (Mich. 1999) (recognizing “equi- table remedies” as a legal term of art). So we look to the gen- erally understood meaning of equitable relief in the legal community at the time of the FMLA’s passage in 1993. See George v. McDonough, 142 S. Ct. 1953, 1963 (2022) (looking to the “prevailing understanding” of a term of art when Con- gress codified it into law) (citation omitted). We start with how Congress itself has classified declara- tory judgments. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 448 n.3 (2006) (looking “elsewhere in the United States Code” to aid statutory interpretation). The Petroleum Marketing Practices Act of 1978, like many state statutes en- acted before the FMLA’s passage, 1 describes “equitable relief” as “including declaratory judgment[s].” 15 U.S.C. § 2805(b)(1) (“In any action under subsection (a), the court shall grant such equitable relief as the court determines is necessary to remedy the effects of any failure to comply with the [statutory]

1See, e.g., Fla. Stat. § 496.420(1) (1991); Me. Stat. tit. 10, § 1456 (1975); Minn. Stat. § 325B.08 (1977); N.C. Gen. Stat. § 75-86 (1988); N.D. Cent. Code § 5- 04-08 (1981); Ohio Rev. Code § 2743.03(A)(2) (1988); R.I. Gen. Laws § 5-55- 8 (1976); Utah Code § 13-12-7 (1975); Va. Code § 59.1-358 (1988). Nos. 21-2139 & 22-1035 9

requirements … including declaratory judgment, mandatory or prohibitive injunctive relief, and interim equitable relief.”) (emphasis added). Congress did the same thing in the Immi- gration & Nationality Act, as amended in 1996. See 8 U.S.C. § 1252(e)(1)(A) (“[N]o court may … enter declaratory, injunc- tive, or other equitable relief … except as specifically author- ized … .”). And we have found no statute in which Congress has excluded declaratory judgments from the definition of eq- uitable relief. That Congress expressly referred to declaratory judg- ments as equitable in other statutes and not the FMLA does not render such judgments unavailable. Cf. NLRB v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (noting that the negative-impli- cation canon “applies only when circumstances support a sensible inference that the term left out must have been meant to be excluded”) (citation omitted and cleaned up). Consider a traveler who had previously authorized her travel agent to “book any electric rental car, including hybrids,” on a recent trip. If the same traveler later asked the agent to “book any electric rental car” for an upcoming trip, the agent could rea- sonably accommodate that request by reserving a hybrid car. Read this way, the FMLA tracks our ordinary presumption that Congress uses similar terms consistently across statutes. See Antonin Scalia & Bryan A. Garner, Reading Law: The In- terpretation of Legal Texts 167–73 (2012). Statutory context bolsters this conclusion. See Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1788 (2022) (words must be “in- terpreted in their context, not in isolation”) (citation omitted). To repeat, the FMLA directs that “[a]ny employer who vio- lates section 2615 of this title shall be liable to any eligible em- ployee affected— … for such equitable relief as may be 10 Nos. 21-2139 & 22-1035

appropriate, including employment, reinstatement, and pro- motion.” 29 U.S.C. § 2617(a)(1)(B). The word “including” sug- gests an illustrative—rather than exhaustive—list and thus “makes clear that the authorization is not limited to the spec- ified remedies there mentioned.” West v. Gibson, 527 U.S. 212, 217 (1999); Scalia & Garner, at 132 (recognizing that the word “include” does “not ordinarily introduce an exhaustive list”); cf. S. Rep. No. 103-3, 36 (1993) (“This section is intended to provide employees with the right to pursue all varieties of eq- uitable relief … .”). Congress thus had no need to list every form of available equitable relief in the FMLA; its use of the label “equitable relief” was enough. And the three listed rem- edies are relatively intrusive; courts may order an employer to hire, reinstate, or promote an individual. See 29 U.S.C. § 2617(a)(1)(B). It would make little sense for the FMLA to permit courts to grant these heavy-handed remedies yet bar them from using a lighter touch through entry of a declara- tory judgment. See Steffel v. Thompson, 415 U.S. 452, 471 (1974) (noting that declaratory judgment “is a much milder form of relief than an injunction”). Like Congress, the Supreme Court has also treated declar- atory judgments as equitable, and we assume “when Con- gress enacts statutes, it is aware of [the Supreme Court’s] rel- evant precedents.” See Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1940 (2022). The Supreme Court has repeatedly found that declaratory judgments “closely resemble” injunctive re- lief, the quintessential equitable remedy. CIGNA Corp. v. Amara, 563 U.S. 421, 440 (2011); see California v. Grace Brethren Church, 457 U.S. 393, 408–09, 411 (1982) (holding that the Tax Injunction Act “prohibits declaratory as well as injunctive re- lief” and noting that “there is little practical difference be- tween injunctive and declaratory relief”); Samuels v. Mackell, Nos. 21-2139 & 22-1035 11

401 U.S. 66, 72–73 (1971) (applying the same Younger absten- tion principles to both injunctive and declaratory relief); Ab- bott Lab’ys v. Gardner, 387 U.S. 136, 155 (1967) (stating that “[t]he declaratory judgment and injunctive remedies are eq- uitable in nature” and holding that equitable defenses were available in a declaratory judgment suit challenging adminis- trative action) (abrogated on other grounds); Pub. Affs. Assocs., Inc. v. Rickover, 369 U.S. 111, 112–13 (1962) (per curiam) (treat- ing declaratory action as a form of equitable relief in deciding to remand the case for further factual development); Eccles v. Peoples Bank of Lakewood Vill., Cal., 333 U.S. 426, 431 (1948) (“A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, ex- ercised in the public interest.”); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299–300 (1943) (holding that “[t]hose considerations which have led federal courts of equity to re- fuse to enjoin the collection of state taxes … require a like re- straint in the use of the declaratory judgment procedure” and noting that a suit for declaratory relief “is essentially an equi- table cause of action” “analogous to the equity jurisdiction in suits quia timet or for a decree quieting title”). Yet the Su- preme Court has not always spoken with one voice. For ex- ample, it has viewed declaratory relief as legal in some con- texts, see Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504 (1959) (treating declaratory judgment as legal rather than eq- uitable), and neither equitable nor legal in others, see Gulf- stream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 284 (1988) (stating in dicta that “[a]ctions for declaratory judg- ments are neither legal nor equitable”) (abrogated in part by statute). So, although far from conclusive, the weight of Su- preme Court authority favors treating declaratory relief as eq- uitable. 12 Nos. 21-2139 & 22-1035

We now turn to history, as the Supreme Court has directed us to do when “interpreting statutes like [this one] that pro- vide for ‘equitable relief.’” Liu v. SEC, 140 S. Ct. 1936, 1942 (2020); see George, 142 S. Ct. at 1959 (when Congress employs a term of art, it carries the term’s “old soil with it”) (citation omitted). We “analyze[] whether a particular remedy falls into ‘those categories of relief that were typically available in equity’” before the merger of law and equity. Liu, 140 S. Ct. at 1942 (quoting Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993)); CIGNA Corp., 563 U.S. at 439. We use 1938 as our his- torical baseline because that’s when the Federal Rules of Civil Procedure merged law and equity in federal courts. Montanile v. Bd. of Trustees of Nat. Elevator Indus. Health Benefit Plan, 577 U.S. 136, 142 (2016). After considering this history up to 1938, we must decide which label—”legal or equitable”—better fits declaratory judgments. Id. (citation omitted); see, e.g., Mertens, 508 U.S. at 255 (focusing on the distinction between legal and equitable relief). Here, history resolves any concern left lingering by Congress and the Supreme Court about the scope of the FMLA’s equitable relief. English equity courts have always “had the power to grant declaratory relief … as ancillary to the granting of some prin- cipal relief.” J.D. Heydon, M.J. Leeming & P.G. Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Reme- dies § 19-005, at 609 (5th ed. 2015). But England did not au- thorize declaratory judgments independent of other relief un- til the 1850s and, at that time, did so only for its equity courts, not its courts of law. See id. § 19-015, at 611–12; Edwin M. Bor- chard, The Declaratory Judgment—A Needed Procedural Reform, 28 Yale L.J. 1, 26 (1918); Bernard C. Gavit, Procedure Under the Uniform Declaratory Judgment Act, 8 Ind. L. J. 409, 419 (1933) (“[I]n England[,] the first statute and the first court rules on Nos. 21-2139 & 22-1035 13

the subject were addressed exclusively to the Court of Chan- cery. Practically all of the English cases have been, and are now, brought in that court … .”); CIGNA Corp., 563 U.S. at 439 (looking to whether the kind of lawsuit could have been “brought only in a court of equity, not a court of law” before the merger of law and equity and noting that “the remedies available to those courts of equity were traditionally consid- ered equitable”). Although Congress did not pass the federal Declaratory Judgment Act until 1934, American courts often deployed a form of declaratory judgments in equity “without conscious adoption” of the procedure. Borchard, A Needed Procedural Reform, at 30. For example, equity courts could long declare rights to title; entitlement in equity to property to which another has legal title (a constructive trust); the validity or invalidity of a trust and other legal instruments; and the validity or nullity of a marriage. See id. at 30–32; John Adams, Doctrine of Equity: A Commentary on the Law as Adminis- tered by the Court of Chancery xxxviii, 35–36, 168–69, 201, 288, 328 (8th ed. 1890); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 263 (1933) (listing cases in which courts “gave no in- junction or other relief beyond the determination of the legal rights which were the subject of controversy between the par- ties,” including in suits to determine matrimonial status, for instructions to a trustee or for the construction of a will, and for bills to quiet title); Edwin M. Borchard, The Constitutional- ity of Declaratory Judgments, 31 Colum. L. Rev. 561, 606 (1931) (“The fact is that actions resulting in declaratory judgments have been known to the English and American courts of eq- uity for centuries, … .”). And when some states, including Rhode Island (1876), Illinois (1911), New Jersey (1915), and Florida (1919), first formally authorized declaratory judg- ments, they did so only in their equity—not common law— 14 Nos. 21-2139 & 22-1035

courts. 2 See Borchard, A Needed Procedural Reform, at 30; Ed- win Borchard, The Next Step Beyond Equity–the Declaratory Ac- tion, U. Chi. L. Rev. 145, 148 (1946). Facing a binary choice be- tween equity and law, we think this history shows that de- claratory relief falls on the equitable side of the divide. Cf. New York State Psychiatric Ass’n, Inc. v. UnitedHealth Grp., 798 F.3d 125, 135 (2d Cir. 2015) (noting that declaratory relief closely resembles traditional equitable remedies); Brett v. Jef- ferson Cnty., Ga., 123 F.3d 1429, 1435 n.14 (11th Cir. 1997) (same). To be sure, we recognize that leading treatises have de- scribed declaratory relief as neither strictly equitable nor le- gal. See 1 Dan B. Dobbs, Law of Remedies § 1.2, at 11–12 (2d. ed. 1993); 26 C.J.S. Declaratory Judgments § 117; 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Proce- dure § 2313 (4th ed. 2020). But other scholarship has been less equivocal, with one equity scholar stating that declaratory judgments, like injunctions, are “quintessential equitable re- lief.” Ben Kremer, Equity and the Common Counts, in Equity and Law: Fusion and Fission 227 n.177 (John C.P. Goldberg, Henry E. Smith & P.G. Turner eds., 2019); see, e.g., Heydon, et al. § 19-315, at 644 (“[I]t is possible to describe declaratory relief as ‘equitable’ if by that one means that declaratory relief is discretionary (like strictly equitable relief) rather than

2 Act of June 5, 1911, 1911 Ill. Laws 253–54 (granting chancery courts the power to declare a “complainant’s right” related to certain equitable sub- jects through a “final decree upon his bill”); Act of March 30, 1915, ch. 116, § 7, N.J. Laws 185 (authorizing “any person claiming a right cognizable in a court of equity” on certain matters to apply “for a declaration of the rights of the persons interested”); Act of June 9, 1919, ch. 7857, 1924 Fla. Laws 148–49 (limiting declaratory relief to applications “by Bill in Chan- cery to any Court in this State having equity jurisdiction”). Nos. 21-2139 & 22-1035 15

rigidly based on rules (like the common law). And declara- tory relief can be called ‘equitable’ for the purpose of ac- knowledging its general law antecedents in equity rather than common law.”); Gavit, Procedure Under the Uniform Declara- tory Judgment Act, at 419 (“It seems reasonably clear that on a[] historical classification the power involved is equitable and not common law.”). We don’t think this mixed scholar- ship dictates an outcome in either direction. And unlike the commentators, we must choose whether given relief is equi- table or legal under the FMLA; we cannot, out of a concern for theoretical purity, dodge the question by picking neither. At bottom, given our precedents, Congress’s definitions in other statutes, statutory context, the weight of Supreme Court precedents, and the equitable origins of the declaratory judg- ment, we hold that the FMLA’s use of equitable relief encom- passes declaratory relief. To that end, the district court did not err in awarding a declaratory judgment to Simon under the FMLA. 3 B Cooperative next argues that Simon failed to show that its statutory violation prejudiced her, a requirement to obtain re- lief under the FMLA. See Ziccarelli v. Dart, 35 F.4th 1079, 1084–

3Although the parties placed this issue squarely before us, they have not engaged with the relevant analysis necessary to resolve this appeal. Coop- erative argues only that declaratory judgments are unauthorized by the FMLA because they resemble nominal damages, which, it says, are una- vailable under the statute. But we’ve never held that nominal damages are unavailable under the FMLA. See Franzen v. Ellis Corp., 543 F.3d 420, 426 n.6 (7th Cir. 2008) (declining to address whether nominal damages are available under the FMLA). And, as in Franzen, we have no reason to ad- dress that issue today. 16 Nos. 21-2139 & 22-1035

85 (7th Cir. 2022). Prejudice “mean[s] harm resulting from the [FMLA] violation.” Id. In its order following a bench trial, the district court made a factual finding that Simon suffered prejudice because Coop- erative “parked her in a backwater position with materially fewer responsibilities until her contract ran out” and assigned her a new position resembling that of a paraprofessional, which was “below her professional capacity.” Cooperative has not argued that this finding was clearly erroneous, so we accept it as true. See Murdock, 461 F.3d at 840. Given this factual finding, we see no legal error in the dis- trict court’s holding that Simon proved prejudice. An em- ployee that must give up her fulfilling job for one in which she is overqualified suffers a “real impairment of [her] rights and resulting prejudice,” as required by the FMLA. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002). Simon worked below her professional capacity for most of the school year and, like any professional who spends time away from their area of expertise, will likely have to explain away that wasted period to future prospective employers. Indeed, if this case involved an accomplished neurosurgeon returning from leave to a position that required only tracking the hospital’s inventory, we doubt that anyone would question whether the surgeon suffered prejudice. So too if an experienced appellate advocate returning to her law firm was tasked only with or- ganizing the firm’s files for months on end. Simon, a lead teacher placed as a paraprofessional upon her return from leave for the rest of the school year, is no different. She suf- fered harm for which the FMLA provides a remedy. Still, Cooperative argues that Simon suffered only a tech- nical FMLA violation, which caused her no prejudice. For Nos. 21-2139 & 22-1035 17

support, it cites the Supreme Court’s decision in Ragsdale and several of our decisions. Yet these cases do not aid Coopera- tive. Ragsdale invalidated a regulation, which required an em- ployer to give another 12 weeks off to an employee who had already taken 30 weeks of leave because the employer had ne- glected to provide the required notice to the employee. 535 U.S. at 88–91. The Court found that this penalty violated the FMLA’s remedial design because it was unconnected to any prejudice suffered by the employee due to the employer’s lapse (indeed, the employee admitted that she would not have changed her behavior had she received the notice). Id. Unlike the plaintiff in Ragsdale, who had suffered no harm from the employer’s failure to give the required notice, Simon did suf- fer harm, and a finding in her favor in no way infringes the FMLA’s remedial design. Nor do we see how our precedents support Cooperative’s position. Cooperative first cites Franzen v. Ellis Corp., 543 F.3d 420 (7th Cir. 2008). In that case, we affirmed the district court’s refusal to award damages after a bench trial because the plain- tiff did not and could not return to work following his leave. Id. at 430. A plaintiff cannot collect damages for periods of time in which he otherwise could not have worked for the company. Id. at 426. Here, in contrast, Simon sought equitable relief—not damages—and she was willing and able to return to work. Cooperative’s citation to Harrell v. U.S. Postal Serv., 445 F.3d 913 (7th Cir. 2006), is similarly off base. There, the plaintiff sued his employer for requesting medical infor- mation from his doctor without his authorization. Id. at 917. We held that this request resulted in no prejudice because the doctor’s office refused to release any information to the em- ployer and the incident did not lead to any adverse employ- ment action against the plaintiff. Id. at 928. In contrast, the 18 Nos. 21-2139 & 22-1035

district court here made a factual finding that Simon suffered actual harm from Cooperative’s FMLA violation. Coopera- tive’s last citation, Hickey v. Protective Life Corp., 988 F.3d 380 (7th Cir. 2021), is even further afield. We held in Hickey that the plaintiff could not show prejudice because his termination was “unrelated to any activity protected by” the FMLA. Id. at 389. Simon’s harm (placement in a position below her skill level) directly relates to Cooperative’s FMLA violation—its failure to return her to an equivalent job. So neither the Su- preme Court’s nor our precedents support Cooperative’s po- sition that Simon suffered only a technical FMLA violation. In sum, we find no error in the district court’s holdings that the FMLA authorizes the entry of declaratory judgments and that Simon suffered prejudice from Cooperative’s failure to return her to an equivalent position following her leave. We therefore affirm the district court’s decision on the merits. IV We now turn to the district court’s attorney’s fee award. Cooperative contests only the legal availability—not the sub- stantive reasonableness—of the attorney’s fee award. We re- view the district court’s legal conclusion about the availability of fees de novo. See Fast v. Cash Depot, Ltd., 931 F.3d 636, 639 (7th Cir. 2019). The relevant provision of the FMLA states: “The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable ex- pert witness fees, and other costs of the action to be paid by the defendant.” 29 U.S.C. § 2617(a)(3) (emphasis added). De- spite this mandatory language, Cooperative argues that a de- claratory judgment cannot trigger the right to attorney’s fees. Nos. 21-2139 & 22-1035 19

Cooperative again cites our decision in Franzen to argue that a declaratory judgment is not the type of judgment that would trigger an attorney’s fee award under the FMLA. See Franzen, 543 F.3d at 431 (holding that an interlocutory jury verdict in the plaintiff’s favor, alone, does not trigger attorney’s fees). But in Franzen, the district court entered judgment for the de- fendant; there was no entry of a declaratory judgment for the plaintiff. See id. at 430. So we fail to see how Franzen offers any guidance here. Second, Cooperative points to Farrar v. Hobby, 506 U.S. 103, 105 (1992), which held that a plaintiff was not entitled to an attorney’s fee award under 42 U.S.C. § 1988 when he recov- ered only one dollar on a $17 million claim against six defend- ants. But Farrar is not on point legally or factually. To start, it involved a different statute under which fees are discretion- ary, see 42 U.S.C. § 1988 (“[T]he court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee as part of the costs … .”) (emphasis added), while the FMLA mandates fees, see 29 U.S.C. § 2617(a)(3) (“The court … shall … allow a reasonable attorney’s fee … .”) (emphasis added). And even if this case involved the same statute, Farrar did not announce a categorical rule forbidding attorney’s fees when a plaintiff fails to recover compensatory damages. Instead, the Court said, “When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, … the only reasonable fee is usually no fee at all.” 506 U.S. at 115 (emphasis added); see id. at 124 (White, J., concurring in part and dissenting in part) (pointing out that the majority “clearly” did not hold “that recovery of nominal damages never can support the award of attorney’s fees”). Unlike the Farrar plaintiff who received only one dollar from the jury on a $17 million claim, Simon did not seek 20 Nos. 21-2139 & 22-1035

damages at all at trial. Instead, Simon sought only injunctive and declaratory relief against one defendant, and she suc- ceeded on one of those requests. Cf. id. at 116 (O’Connor, J., concurring) (“If ever there was a plaintiff who deserved no attorney’s fee at all, that plaintiff was Joseph Farrar. He filed a lawsuit demanding 17 million dollars from six defendants. After 10 years of litigation and two trips to the Court of Ap- peals, he got one dollar from one defendant.”). Farrar thus does not render fees unavailable here. Last, Cooperative argues the district court awarded attor- ney’s fees as a form of punitive damages, which are unavaila- ble under the FMLA. But the district judge merely applied the FMLA as written, which expressly requires attorney’s fees af- ter a judgment entered in the plaintiff’s favor. See 29 U.S.C. § 2617(a)(3). There’s nothing punitive in that. Having rejected each of Cooperative’s contrary arguments, we hold that the district court did not err in finding that attorney’s fees were available under the circumstances. AFFIRMED