Mitchell, Tina M. v. Dutchmen Mfg ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1365
TINA M. MITCHELL,
Plaintiff-Appellant,
v.
DUTCHMEN MANUFACTURING, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 02 C 712—Robert L. Miller, Jr., Chief Judge.
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ARGUED SEPTEMBER 20, 2004—DECIDED NOVEMBER 23, 2004
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Before POSNER, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Tina Mitchell quit working for
Dutchmen Manufacturing, Inc. shortly after she returned
from a medical leave. Mitchell contends that Dutchmen vio-
lated the Family and Medical Leave Act because it did not
restore her to the same or an equivalent position on her
return from leave. The district court granted Dutchmen
summary judgment. We affirm.
In 2000 Mitchell began work for Dutchmen Manufacturing,
Inc., a maker of recreational vehicles. She worked on an as-
sembly line in Dutchmen’s “final finish department,” where
2 No. 04-1365
vehicles were finalized and prepared for sale. Her job con-
sisted of various cleaning tasks, such as sweeping, wiping,
and applying sticker decals and putty to the vehicles.
On June 1, 2002, Mitchell began FMLA leave for treatment
of depression and anxiety. During her leave, Dutchmen con-
solidated two of its production lines, and reassigned personnel
to different tasks and departments. Before consolidation,
there were five cleaning positions; after consolidation, only
two.
On July 8, Mitchell returned from leave and was assigned
to her former department. She retained the same pay and
benefits that she enjoyed before her leave, but some of the
tasks expected of her had changed. She was now required
to use certain small hand tools, including an electric screw
gun, a screwdriver, and a seal (caulking) gun. She was ex-
pected, for each vehicle, to apply caulk, crimp four wires,
and install six or seven screws, two with a screwdriver and
four or five with a screw gun. Aside from these new tasks
requiring her to use the tools, Mitchell continued to perform
the same cleaning duties as before her leave.
On July 15, Mitchell, using a screw gun for the first time,
injured her wrist. She was evaluated by a doctor, who diag-
nosed tendinitis and instructed her to wear a wrist splint,
but he also certified that she could return to work with no
other restrictions. Mitchell’s wrist did not improve and she
visited the doctor twice more, on July 18th and July 22nd.
On these dates, the doctor restricted her from excessive
gripping, twisting, pulling, and pushing, and instructed her
to limit use of her right hand. When Mitchell returned to
work after these visits and told her supervisor of the re-
strictions, he excused her from using the screw gun, but in-
formed her that she should continue to use the seal gun,
using her left hand if necessary. As soon as her supervisor
advised her to continue using the seal gun, Mitchell walked
off the job and did not return. On July 24, Dutchmen’s
No. 04-1365 3
director of human resources mailed a letter to Mitchell
offering to “accommodate” her new work restrictions and
informing her that failure to return to work would be con-
sidered a voluntary resignation. Mitchell did not communi-
cate further with Dutchmen.
In October 2002, Mitchell filed this suit in the Northern
District of Indiana, alleging violations of the FMLA. The
basis for the claim was that Dutchmen failed to restore her
to the duties she held before leave, and that Dutchmen
constructively discharged her in retaliation for taking the
leave. Dutchmen moved for summary judgment, which the
district court granted. Relevant to this appeal, the district
court found that: (1) Mitchell’s duties before and after her
leave were equivalent; (2) Mitchell did not establish that
she was entitled to restoration because she failed to meet
her burden of proving that her job would have remained
unchanged had she not taken the leave; and (3) she failed
to establish two prongs of a prima facie case of retaliation
because she showed neither an adverse employment action
nor a causal link between her leave and Dutchmen’s actions
against her.
The FMLA entitles employees who have returned from a
family or medical leave to be reinstated to the position they
held before leave, or to an equivalent one. 29 U.S.C.
§ 2614(a)(1). An equivalent position is one that is virtually
identical to the former position in terms of pay, benefits, and
working conditions. 29 C.F.R. § 825.215(a). It must involve
the same or substantially equivalent skill, effort, responsi-
bility, and authority. 29 C.F.R. § 825.215(a); Watkins v. J&S
Oil Co., 164 F.3d 55, 59 (1st Cir. 1998). This equivalency
requirement does not extend to de minimus or intangible,
unmeasurable aspects of the job. 29 C.F.R. § 825.215(f).
There are limitations on an employer’s obligation to rein-
state an employee. 29 C.F.R. § 825.216(a)(1)(2). An employee
is entitled only to benefits that she would have retained if
4 No. 04-1365
she had not taken a leave. 29 C.F.R. § 825.312(d). At all
times, the employee bears the burden of demonstrating her
right to be restored to the same or equivalent position. Kohls
v. Beverly Enter. Wis., Inc., 259 F.3d 799, 804 (7th Cir. 2001);
but see Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1019
(7th Cir. 2000) (Evans, J., dissenting), reh’g denied, 217 F.3d
492, 493 (7th Cir. 2000) (Diane P. Wood, J., dissenting from
denial); 29 C.F.R. § 825.216(a)(1) (explaining that an em-
ployer must be able to show that an employee would not
otherwise have been employed at the time reinstatement is
requested in order to deny restoration to employment).
Mitchell first argues that the district court erred when it
failed to identify the equivalency of her duties before and
after leave as a genuine issue of material fact. She argues
that the new duties expected of her, including the use of
certain small hand tools, poses at least a factual question as
to the equivalency of her jobs before and after taking leave.
Mitchell’s argument is unpersuasive. Not only did she re-
tain the same pay and benefits after taking leave, but her
duties remained substantially similar. For each vehicle,
Mitchell estimates spending between a half an hour and an
hour to complete her tasks after taking leave. The majority
of that time was spent on tasks she had performed before
her leave: she spent approximately “five to ten minutes”
vacuuming, “thirty minutes” wiping, and “five to six minutes”
applying decals. For the rest of the time, Mitchell performed
the new tasks using small, not physically taxing, hand tools.
The tasks using the tools took only a limited time—she ap-
plied caulk for “two to ten” and “four to five” minutes, cut
wires for “a couple of minutes,” used a screwdriver for “a few
minutes,” and a screw gun for “a couple of seconds.” Ac-
cording to Mitchell’s estimates, she spent approximately 40
to 45 minutes on the same tasks that she had performed
before her leave, and only 10 to 23 minutes on the new tasks.
Given that the new tasks were neither overly time consum-
ing nor physically demanding, we agree with the district
No. 04-1365 5
court’s assessment that Mitchell’s duties before and after
her leave were substantially similar.
A case raising factual circumstances similar to Mitchell’s
was addressed by the Fourth Circuit in Montgomery v. State
of Maryland, 266 F.3d 334 (4th Cir. 2000). In that case, the
employee, an administrative aide, alleged that her employer
failed to restore her to an equivalent position after an FMLA
leave. After returning from leave, she retained the same
pay and benefits, but was reassigned to a secretary position,
for which she performed clerical tasks, such as typing and
answering the phone, and had to share a workspace with
another employee. Id. at 336, 341. The court in Montgomery
regarded these differences as de minimis and determined
that the positions were equivalent. Id. at 342. As in Mont-
gomery, Mitchell’s complaints regarding the limited use of
small hand tools are the sort of de minimis, intangible, and
unmeasurable aspects of a job that the regulations specifi-
cally exclude. The district court was correct to grant
summary judgment on this question of equivalence.
Mitchell next raises the peculiar argument that the dis-
trict court erred “in determining that her pre-leave cleaning
position was eliminated by a consolidation of the (two
production lines) where the evidence demonstrated pretext.”
This argument puzzles us because an assertion of pretext is
neither necessary nor sufficient to support a finding of a
violation of substantive rights under the FMLA. Diaz v.
Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir.
1997).
Finally, Mitchell raises an undeveloped argument that gen-
erally contests the grant of summary judgment to Dutchmen
on her retaliation claim. In this argument, Mitchell seems
to contend that she introduced enough evidence to make out
a prima facie case of retaliation under the indirect method,
namely by showing that she had suffered an adverse employ-
ment action when she was “constructively discharged.”
6 No. 04-1365
Although the district court asserted incorrectly that Mitchell
must also prove a causal link between the protected activity
and the adverse employment action, see Stone v. City of
Indianapolis, et al., 281 F.3d 640, 644 (7th Cir. 2002),
Mitchell did not present any evidence to establish another
prong of a prima facie case—that other similarly situated
employees who did not take leave were not also subjected to
reassignment. See Buie v. Quad Graphics, Inc., 366 F.3d
496, 503 (7th Cir. 2004). Failure to satisfy any one element
of the prima facie case dooms an employee’s retaliation claim.
Hudson v. Chicago Transit Auth., 375 F.3d 552, 560 (7th
Cir. 2004).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-23-04