Nathan Hickey v. Protective Life Corporation ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1076
NATHAN HICKEY,
Plaintiff-Appellant,
v.
PROTECTIVE LIFE CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:18-cv-03018 — Thomas P. Schanzle-Haskins, Magistrate Judge.
____________________
SUBMITTED OCTOBER 28, 2020 — DECIDED FEBRUARY 12, 2021
____________________
Before RIPPLE, WOOD, and BRENNAN, Circuit Judges.
RIPPLE, Circuit Judge. Nathan Hickey brought this action
under the Family and Medical Leave Act (“FMLA”), 29
1
U.S.C. § 2601 et seq. In his complaint, he alleged that his
1 The jurisdiction of the district court is based on 28 U.S.C. § 1331. Dur-
ing briefing on the summary judgment motion, the parties consented to
(continued … )
2 No. 20-1076
former employer, Protective Life Corp. (“Protective”), had
interfered with the exercise of his rights under the FMLA
and had retaliated against him for exercising those rights. In
due course, Protective filed a motion for summary judg-
ment; in his response, Mr. Hickey abandoned his retaliation
claim. After notice to the parties, the district court granted
the motion on a ground not raised explicitly by the parties. It
held that Mr. Hickey could not succeed on his interference
claim because he was unable to prove that he had suffered
any monetary damages as a result of the alleged interference
or was otherwise entitled to equitable relief.
In determining that Mr. Hickey had not raised a genuine
issue for trial, the district court refused to consider a sup-
plemental declaration filed by Mr. Hickey that, according to
the district court, contradicted Mr. Hickey’s deposition tes-
timony.
2
We affirm the judgment of the district court. The district
court correctly concluded that, in the absence of evidence
that Mr. Hickey suffered harm for which the FMLA provides
a monetary or equitable remedy, Mr. Hickey does not have a
cognizable action for interference under the FMLA. Moreo-
ver, the district court did not abuse its discretion in refusing
to consider Mr. Hickey’s supplemental declaration as evi-
dence of damages.
( … continued)
referral of the case, for all matters including final judgment, to a magis-
trate judge. See R.19.
2 Our jurisdiction is secure under 28 U.S.C. § 1291.
No. 20-1076 3
I
BACKGROUND
A.
Mr. Hickey began working for Protective as an Account
Executive in its Asset Protection Division on November 8,
2015. Mr. Hickey’s primary task was to sell Protective’s war-
ranty and insurance products through auto dealerships. His
territory extended from “south of Bloomington[, Illinois,] to
3
Southern Illinois and west into Missouri.” As part of his re-
sponsibilities, he oversaw two large, established accounts,
the Chris Auffenberg and Jamie Auffenberg dealerships, as
well as one smaller account, Ike Honda. His goals were both
to increase production in these existing accounts as well as
to develop new accounts. Mr. Hickey’s compensation struc-
ture comprised a base salary, commissions for the sales from
his assigned dealerships, and commissions on new accounts.
Around September 30, 2016, Mr. Hickey informed his
supervisor, Regional Sales Manager Chris Courtney, that his
grandmother was in poor health and that he might need
time off. Courtney forwarded Mr. Hickey’s email to
Anne Witte, who worked in Protective’s human resources
department and was knowledgeable about the types of leave
available to Mr. Hickey.
In the middle of November 2016, Mr. Hickey was strug-
gling with anxiety and depression following his grandmoth-
er’s illness and death; on November 16 or 17, he initiated a
request for FMLA leave. On November 29, Protective’s ad-
3 R.17-1 at 7 (Hickey Dep. 20:13–14).
4 No. 20-1076
ministrator sent Mr. Hickey a letter approving his leave ret-
roactive to November 17, 2016, and continuing through De-
cember 14, 2016. Ultimately, Mr. Hickey received approval
for his full twelve weeks of leave under the FMLA, and he
did not return to work until February 17, 2017.
While Mr. Hickey was on leave, Protective acquired U.S.
Warranty. In an affidavit that Mr. Hickey submitted in op-
position to Protective’s motion for summary judgment,
Mr. Hickey explains:
When I was preparing to return to work, I
spoke with Chad Reeser (U.S. Warranty Re-
gional Manager) and Steve Potts (U.S. Warran-
ty Division Manager) regarding a job (within
Protective) that they wanted me to take. That
job was as an account executive on the U.S.
Warranty side under Steve Potts. Mr. Potts of-
fered me the job. At that time Mr. Potts was a
manager at Protective. I decided that I would
accept the position and advised Mr. Potts of
4
my decision.
In his earlier deposition, however, Mr. Hickey recounted
events differently. He stated that Potts had told him that he
(Potts) wanted Mr. Hickey “to become a member of his
5
team,” that Mr. Hickey “would be receiving an offer from
6
him,” and that he (Potts) would be “looking for
4 R.23-1 ¶ 20.
5 R.17-1 at 36 (Hickey Dep. 134:12).
6 Id. (Hickey Dep. 134:15).
No. 20-1076 5
7
[Mr. Hickey’s] application.” Later in his deposition,
Mr. Hickey testified that, sometime after February 20, 2017,
he had emailed Witte to ask about “the status of [his] appli-
8
cation with US Warranty.” Indeed, in an email sent by
Mr. Hickey on February 27, 2017, Mr. Hickey explained that
he “had spoken to a colleague with our new branch [U.S.
Warranty] who said they are waiting for my information for
application. Any update on that or things I should do to
9
make me the best candidate for that move?” At no time dur-
ing his deposition did Mr. Hickey testify that he had been
offered a position at U.S. Warranty or that he had accepted
that offer.
On February 20, 2017, Mr. Hickey met with Witte, Court-
ney, and Divisional Vice President Kevin Hausch in
10
St. Louis. During the course of that meeting, Courtney ex-
plained to Mr. Hickey that, upon his return to work, he
would have a territory closer to his home, that he would not
be servicing the Auffenberg accounts or Ike Honda, and that
he would need to build up his own book of business. His
commissions, however, would remain constant for six
months.
7 Id. (Hickey Dep. 135:1).
8 Id. at 37 (Hickey Dep. 138:17).
9 R.17-28 at 2.
10 According to Protective’s reporting chain, Courtney reported to the
Regional Vice President, Matt Keller, who reported to the Divisional Vice
President, Kevin Hausch.
6 No. 20-1076
On March 3, 2017, Mr. Hickey received his fourth-quarter
evaluation which indicated that, due to his leave, he had not
started his fourth-quarter goals. He also received his
year-end evaluation. The evaluation reflected an overall rat-
11
ing of “inconsistent” for 2016. Courtney testified that he
based the “inconsistent” rating on Mr. Hickey’s record of
servicing clients prior to his leave. Although Mr. Hickey
admits that, prior to taking leave, he was told that he “need-
12
ed to be more proactive with the Ike Honda account,” he
disputes that there were problems with the Auffenberg ac-
13
counts that were attributable to him. Under Protective’s
policies, Mr. Hickey’s “inconsistent” rating rendered him
14
ineligible for an internal transfer to a different position.
During that same month, March 2017, Mr. Hickey at-
tended Protective’s Asset Protection Division conference in
Dallas. While there, Mr. Hickey spoke to at least one other
attendee about his desire to transfer to a position at U.S.
15
Warranty. Tim Blochowiak, Vice President of Dealer Sales,
met with Mr. Hickey and asked that he refrain from discuss-
11 See R.17-30 at 4.
12 See R.23 at 6.
13 Mr. Hickey also maintains that, prior to the fourth quarter, he had no
performance issues. Mr. Hickey suggests that, while he was on leave,
Courtney authored a tepid third-quarter review to justify his 2016 rating.
See Appellant’s Br. 23–24.
14 See R.17-1 at 42 (Hickey Dep. 160:10–15).
15 Blochowiak was immediately above Hausch in the reporting chain.
No. 20-1076 7
ing the possibility of a transfer at the conference. After this
meeting, it was clear to Blochowiak that Mr. Hickey did not
want to be in his current position, and Blochowiak contacted
human resources to discuss options. Later that day,
Blochowiak met again with Mr. Hickey, informed him that a
transfer was not available, and offered him a severance
package so that he could leave Protective on good terms.
Blochowiak asked Mr. Hickey to keep the offer in confidence
and to give him an answer in the next couple of days.
That same evening, Blochowiak learned that, contrary to
his explicit instructions, Mr. Hickey had mentioned his de-
sire to transfer and the severance package to another em-
ployee. Blochowiak had a follow-up meeting with Mr. Hick-
ey in which he reiterated that he did not want Mr. Hickey to
discuss the possibility of transferring; he further said that
Protective needed an answer on the severance offer.
Mr. Hickey told Blochowiak that he believed he was being
pressured out of the company.
Following this second meeting with Mr. Hickey,
Blochowiak again spoke with human resources and then
again met with Mr. Hickey. During this final meeting,
Blochowiak made the decision to end Mr. Hickey’s employ-
ment for two reasons. First, it was Blochowiak’s perception
that Mr. Hickey had lied to him: Mr. Hickey had denied hav-
ing discussions with others about a possible transfer and the
severance offer, but other employees had reported those
conversations to Blochowiak. Second, it was clear to
8 No. 20-1076
Blochowiak that Mr. Hickey had no interest in continuing to
16
work for Courtney.
B.
Mr. Hickey filed this action in which he alleged that Pro-
tective had interfered with the exercise of his rights under
the FMLA and had retaliated against him for exercising
those rights. He set forth three unlawful acts in his com-
plaint: (1) his fourth-quarter performance review, (2) the de-
nial of his transfer, and (3) the termination of his employ-
ment. He requested “[a] determination that Protective vio-
lated [hi]s rights under the FMLA”; “[a]n order reinstating
[him] to his position of employment”; “[a]n order directing
Protective to compensate him for his lost wages and bene-
17
fits”; liquidated damages; and attorney’s fees.
Following discovery, Protective moved for summary
judgment on all of Mr. Hickey’s claims. It maintained that
Protective had not interfered with Mr. Hickey’s taking his
FMLA leave, nor had it retaliated against him. It stated that
Mr. Hickey’s 2016 performance review reflected his perfor-
mance before his FMLA leave. It also submitted that the
termination of Mr. Hickey’s employment was based solely
on his interactions with Blochowiak and had nothing to do
with his FMLA leave.
In his response, Mr. Hickey conceded that the termina-
tion of his employment was not retaliatory and that Protec-
16 See R.16 at 16.
17 R.1 at 4–5.
No. 20-1076 9
18
tive was entitled to summary judgment on that claim. He
maintained, however, that summary judgment should be
denied on his interference claim. First, he argued that
whether Protective had interfered with his FMLA leave by
downgrading his performance evaluation was a question of
19
fact for the jury. He also contended that a jury could con-
clude that he was not reinstated to his former or an equiva-
lent position because he was required to prospect for addi-
tional clients, which was more difficult than working with
existing clients. Mr. Hickey neither admitted nor denied
Blochowiak’s recollection regarding the events leading up to
and culminating in the termination of Mr. Hickey’s em-
ployment. Consequently, pursuant to local rule, the district
20
court deemed them admitted.
In its reply, Protective claimed that there was no genuine
issue of material fact as to whether Mr. Hickey had been re-
turned to an equivalent position. Mr. Hickey had testified
that, when he returned to work, he had the “same title,” “the
same manager,” “the same team,” sold “the same products,”
was guaranteed “the same pay” (for six months), and that he
21
did not consider the new job “inferior.” Protective also
18 See R.23 at 3 (“In his complaint Hickey also alleged that he was termi-
nated in retaliation for taking a protected leave of absence. … For the
purposes of this motion, Hickey is not challenging Protective’s entitle-
ment to summary judgment as to this limited issue.”).
19 See id. at 32.
20 See R.30 at 8 n.2.
21 R.24 at 11 (quoting R.17-1 at 54 (Hickey Dep. 208:8–209:19)).
10 No. 20-1076
submitted that Mr. Hickey’s “claim[] that[,] but for his 2016
Overall Performance rating[,] he would have been allowed
to transfer to a different position, … [was] entirely specula-
22
tive.” It maintained that, even if Mr. Hickey had been eligi-
ble for a transfer, he “was not entitled to a transfer, there is
no guarantee that [he] would have been selected for any
transfer, denial of an essentially lateral transfer is not an ad-
verse action, and [he] ultimately was terminated for reasons
23
unrelated to his FMLA leave.”
Following briefing, the court notified the parties that it
was considering granting summary judgment on a ground
24
that they had not explicitly raised. Specifically, it noted
that, to recover under the FMLA, a plaintiff must show
monetary damages resulting from the alleged interference.
However, Mr. Hickey had agreed that his compensation had
not been reduced and would not be reduced for six months
following his return to work. Additionally, Mr. Hickey had
not come forward with any evidence that he had been of-
fered a transfer; the mere possibility of a transfer was too
speculative of a basis for relief. The court acknowledged
that, in the declaration attached to his opposition brief,
Mr. Hickey stated—for the first time—that Steve Potts at
U.S. Warranty had offered him a job. However, the court
noted that this assertion directly contradicted multiple
statements in Mr. Hickey’s deposition where he spoke of his
22 Id. at 15.
23 Id.24 See R.25 at 1 (citing Fed. R. Civ. P. 56(f)(2)).
No. 20-1076 11
application to U.S. Warranty, as opposed to an offer and ac-
ceptance. The district court therefore refused to consider the
affidavit.
The parties filed supplemental memoranda addressed to
the issue of damages. The district court ultimately concluded
that Mr. Hickey could not show that any interference with
his FMLA leave resulted in monetary damages or entitled
him to equitable relief. According to the district court,
Mr. Hickey’s employment was terminated because he had
lied to Blochowiak and because he had refused to work for
Courtney. Neither of these reasons had any relationship to
his FMLA leave. Because the termination of his employment
was lawful, Mr. Hickey was not entitled to reinstatement.
The district court also determined that Mr. Hickey was
not entitled to reinstatement to a different position at U.S.
Warranty because he had not come forward with any evi-
dence that he would have gotten the position at U.S. War-
ranty even if he had been eligible to apply for it. Because
Mr. Hickey had “fail[ed] to present any evidence of any eco-
nomic harm from the claimed interference and any evidence
that he would [have] be[en] entitled to equitable relief,”
25
Mr. Hickey was “not entitled to relief under the FMLA.”
The district court therefore entered summary judgment for
Protective.
Mr. Hickey timely appealed.
25 R.30 at 19.
12 No. 20-1076
II
DISCUSSION
Section 2615(a)(1) of Title 29 of the United States Code
makes it “unlawful for any employer to interfere with, re-
strain, or deny the exercise of or the attempt to exercise, any
right” provided in the FMLA. Among the rights guaranteed
by the FMLA is the right of the employee “to be restored” to
the same position as he held when the employee’s leave
commenced or “to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of
employment.” 29 U.S.C. § 2614(a)(1)(A), (B); see also Breneisen
v. Motorola, Inc., 512 F.3d 972, 977 (7th Cir. 2008) (noting that
an interference claim can be based on the employer’s failure
to reinstate the employee to the same or an equivalent posi-
tion and reversing summary judgment in favor of Motorola
because Breneisen had raised a genuine issue of material fact
as to whether he had been reinstated to an equivalent posi-
26
tion). To prevail on an FMLA interference claim,
the employee must establish that: (1) he was el-
igible for the FMLA’s protections, (2) his em-
ployer was covered by the FMLA, (3) he was
entitled to leave under the FMLA, (4) he pro-
vided sufficient notice of his intent to take
leave, and (5) his employer denied him FMLA
benefits to which he was entitled.
26 See also Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 186–89 (4th Cir.
2017) (discussing contours of “interference” claim based on a failure to
reinstate an employee).
No. 20-1076 13
Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006) (citing
Hoge v. Honda Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir.
2004)). “[A]n employee need only show that his employer
deprived him of an FMLA entitlement; no finding of ill in-
tent is required.” Id.; see also Krutzig v. Pulte Home Corp., 602
F.3d 1231, 1235 (11th Cir. 2010) (stating that, with respect to
an FMLA interference claim, “[t]he employee need not allege
that his employer intended to deny the benefit, because ‘the
employer’s motives are irrelevant’” (quoting Strickland v.
Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206–
27
07 (11th Cir. 2001)).
The remedies for violations of § 2615 are set forth in 29
U.S.C. § 2617. That section provides, in relevant part, that an
employer “who violates section 2615 of this title shall be lia-
ble to any eligible employee affected … for damages equal to
… the amount of … any wages, salary, employment benefits,
or other compensation denied or lost to such employee by
reason of the violation.” Id. § 2617(a)(1)(A)(i)(I) (emphasis add-
27 Section 2615(a)(2) of Title 29 “makes it ‘unlawful for any employer to
discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by’ the FMLA.” Preddie v. Barthol-
omew Consol. Sch. Corp., 799 F.3d 806, 819 (7th Cir. 2015) (quoting 29
U.S.C. § 2615(a)(2)). We have recognized that demoting or firing an em-
ployee for taking a valid leave falls within this prohibition. See id.; see also
Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 667 (7th Cir. 2008).
“[R]etaliation claims under the FMLA require that: (1) the employee en-
gaged in statutorily protected activity; (2) the employer subjected her to
an adverse action; and (3) the protected activity caused the adverse ac-
tion.” Riley v. City of Kokomo, 909 F.3d 182, 188 (7th Cir. 2018). As noted,
see supra note 18, and accompanying text, Mr. Hickey abandoned his re-
taliation claim in the district court.
14 No. 20-1076
ed). It also provides for the recovery of “any actual monetary
losses sustained by the employee as a direct result of the vio-
lation, such as the cost of providing care.” Id.
§ 2617(a)(1)(A)(i)(II). Finally, it allows a court to award “eq-
uitable relief as may be appropriate, including employment,
reinstatement, and promotion.” Id. § 2617(a)(1)(B). Thus, in
order to recover under the FMLA, a plaintiff must show that
he suffered damage, which (1) is redressable under § 2617
and (2) results from the alleged interference. In the absence
of such evidence, summary judgment for the employer is
appropriate. See Cianci v. Pettibone Corp., 152 F.3d 723, 728–29
(7th Cir. 1998).
Cianci v. Pettibone Corp. illustrates the necessary connec-
tion between harm and recovery under the FMLA. In that
case, the plaintiff had requested FMLA leave, which the em-
ployer improperly denied. Prior to the date that the plaintiff
would have begun her requested leave, her employment was
terminated, and she brought an action alleging that the ter-
mination violated the FMLA and other federal employment
statutes. Before we turned to the merits of Cianci’s FMLA
claim, we first addressed “whether Cianci ha[d] a remedy
under the FMLA.” Id. at 728. We concluded that, because
Cianci’s employment had been terminated before she suf-
fered any denial of her rights, no recovery was available. We
explained that
[t]he FMLA provides for compensatory dam-
ages equal to the amount of wages, salary, em-
ployment benefits, or other compensation the
employee was denied or lost. 29 U.S.C.
§ 2617(a)(1)(A)(i)(I). If the employee was not
denied or did not suffer a loss of income, the
No. 20-1076 15
employee may recover other actual monetary
losses that directly resulted from the violation.
29 U.S.C. § 2617(a)(1)(A)(i)(II). Cianci did not
suffer any diminution of income, and, on the
record before us, incurred no costs as a result
of the alleged violation. Although Cianci’s
complaint seeks $300,000 in compensatory and
punitive damages, the record contains no sup-
port for this request. Significantly, when asked
at oral argument, Cianci’s counsel was unable
to tell us what relief the FMLA could provide
to his client.
Cianci, 152 F.3d at 728–29. We therefore affirmed the district
court’s grant of summary judgment to Cianci’s employer on
her FMLA claim.
A few years later, the Supreme Court described recovery
under § 2617 in much the same terms as we did in Cianci: as
limited and as requiring a direct connection between the
harm suffered and the damages sought. Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002). The Court explained:
To prevail under the cause of action set out in
§ 2617, an employee must prove, as a threshold
matter, that the employer violated § 2615 by in-
terfering with, restraining, or denying his or
her exercise of FMLA rights. Even then, § 2617
provides no relief unless the employee has
been prejudiced by the violation: The employer
is liable only for compensation and benefits
lost “by reason of the violation,”
§ 2617(a)(1)(A)(i)(I), for other monetary losses
sustained “as a direct result of the violation,”
16 No. 20-1076
§ 2617(a)(1)(A)(i)(II), and for “appropriate” eq-
uitable relief, including employment, rein-
statement, and promotion, § 2617(a)(1)(B). The
remedy is tailored to the harm suffered.
Ragsdale, 535 U.S. at 89.
Mr. Hickey maintains that Protective interfered with the
exercise of his rights under the FMLA in two ways. First, the
fact that he took FMLA leave negatively impacted his
fourth-quarter and year-end reviews, in violation of 29
C.F.R. § 825.220(c) (stating that “employers cannot use the
taking of FMLA leave as a negative factor in employment
actions, such as hiring, promotions or disciplinary actions”).
Second, upon returning from leave, he was not restored “to
an equivalent position with equivalent … terms and condi-
tions of employment.” 29 U.S.C. § 2614(a)(1)(B). To survive
summary judgment, Mr. Hickey had to come forward with
evidence from which a jury could conclude that he suffered
damages attributable to one of these adverse actions for
which the FMLA provides relief.
Here, when Mr. Hickey returned from his FMLA leave,
he initially received the same salary and benefits as he had
received prior to his leave. Under the arrangement given
him upon his return, his compensation could have dimin-
ished after six months if he had stayed in Protective’s em-
ploy for that period. However, his employment with Protec-
tive terminated approximately three weeks after his return
for reasons unrelated to his having taken FMLA leave. Thus,
like the plaintiff in Cianci, although Mr. Hickey eventually
may have suffered damages had he remained employed
with Protective, he had not suffered any compensable dam-
ages under § 2617(a)(1)(A)(i) at the time his employment was
No. 20-1076 17
terminated. Therefore, even if we assume, arguendo, that the
compensation arrangement given him upon his return vio-
lated the statute (a question we need not and do not decide),
Mr. Hickey never incurred any damages attributable to that
compensation decision.
In addition to the damages set forth in § 2617(a)(1)(A),
§ 2617(a)(1)(B) also allows a court to award “equitable relief
as may be appropriate, including employment, reinstate-
ment, and promotion.” In Mr. Hickey’s view, had Protective
returned him to an equivalent position, no breakdown in the
employment relationship would have occurred and he there-
fore is entitled to reinstatement to his former position.
We cannot accept this argument. Mr. Hickey did not dis-
pute the facts surrounding the termination of his employ-
ment: that Blochowiak terminated his employment for his
lack of truthfulness and discretion related to his desire to
transfer and his severance offer. Because the termination of
his employment was unrelated to any activity protected by
the statute, the statute’s remedial provisions cannot be in-
voked to require his reinstatement. Cf. McKennon v. Nashville
Banner Publ’g Co., 513 U.S. 352, 361–62 (1995) (holding that,
under the ADEA, neither reinstatement nor front pay is ap-
propriate when, subsequent to the statutory violation, the
plaintiff’s employment has been terminated for legitimate
reasons).
Alternatively, Mr. Hickey maintains that the evidence es-
tablishes that he “had actually been offered a different job”
at U.S. Warranty and, therefore, reinstatement to that posi-
18 No. 20-1076
28
tion, or front pay in lieu of reinstatement, is appropriate.
The only evidence supporting his claim that he had been of-
fered a position with U.S. Warranty, however, is
Mr. Hickey’s supplemental affidavit, which the district court
refused to consider. We review the district court’s exclusion
of an affidavit for an abuse of discretion. See Kopplin v. Wis-
consin Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019).
“As a general rule, the law of this circuit does not permit
a party to create an issue of fact by submitting an affidavit
whose conclusions contradict prior deposition or other
sworn testimony.” Buckner v. Sam’s Club, Inc., 75 F.3d 290,
29
292 (7th Cir. 1996). Indeed, even affidavits that are not di-
rectly contradictory may be excluded under this rule. In
Buckner, for example, the plaintiff had slipped and fallen in a
Sam’s Club; despite a search, the object that caused the fall
never was recovered. At her deposition, the plaintiff dis-
claimed “knowing precisely what the object was, but she did
offer some commentary on its physical nature, describing it
as ‘uneven and faulty’ and ‘lumpy.’” Id. at 293. Later, in her
affidavit, she was much more specific, stating that “the ob-
ject ‘felt to be about the size of a ladies’ watch, which is one
of the types of items that were on the display tables’” near
where she fell. Id. at 292. The district court struck the affida-
vit, and, on appeal, we concluded the district court had not
abused its discretion in doing so. We explained:
28 See Appellant’s Br. 29.
29 See also Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055–56 (7th Cir.
2000).
No. 20-1076 19
The concern in litigation, of course, is that a
party will first admit no knowledge of a fact
but will later come up with a specific recollec-
tion that would override the earlier admission.
Linda’s affidavit falls into this category. In-
stead of offering a description using general
terms (“rounded,” “about a third to half an
inch thick”), the affidavit describes the previ-
ously unknown object as feeling like a
“watch,” and a “ladies’ watch” no less, one of
the few objects that could directly link Sam’s
Club with the accident. In the context of oppos-
ing a motion for summary judgment, and
when contrasted with a clear prior statement
disclaiming knowledge of the object, this high-
ly specific description appears to be an effort to
undo (contradict) the effects of the deposition
testimony and thereby establish the missing
causal link between the store and the fall. This
is certainly a conclusion the district court could
have rationally made, which for purposes of
our review was not an abuse of discretion.
Id. at 293.
Here, the difference in Mr. Hickey’s deposition testimony
and his declaration is much closer to a clear contradiction
than the statements in Buckner. In his deposition, Mr. Hickey
testified that Potts had told Mr. Hickey that he wanted
30
Mr. Hickey “to be a part of his team,” that Mr. Hickey
30 R.17-1 at 36 (Hickey Dep. 134:22).
20 No. 20-1076
31
“would be receiving an offer from him,” and that he (Potts)
32
would be “looking for [Mr. Hickey’s] application.” Later in
his deposition, Mr. Hickey testified that, sometime after Feb-
ruary 20, 2017, and after his leave had ended, he had in-
quired as to the “status of [his] application with US Warran-
33
ty.” Additionally, on February 27, 2017, Mr. Hickey had
informed human resources that he had spoken to someone
at U.S. Warranty who was “waiting for [his] information for
application” and asked whether there was “[a]ny update on
that or things [he] should do to make [him] the best candi-
34
date for that move[.]” All of these statements establish that
Mr. Hickey was anticipating, but had not yet received, an
offer from U.S. Warranty.
In contrast, in his declaration, Mr. Hickey transforms the
expected offer into an offer that not only had been extended,
but also had been accepted. He states: “Mr. Potts offered me
the job. … I decided that I would accept the position and ad-
35
vised Mr. Potts of my decision.” Moreover, in his affidavit,
Mr. Hickey places the completion of this agreement prior to
36
his return to work; however, his deposition testimony
31 Id. (Hickey Dep. 134:15).
32 Id. (Hickey Dep. 135:1).
33 Id. at 37 (Hickey Dep. 138:17).
34 R.17-28 at 2.
35 R.23-1 ¶ 20.
36 See id.
No. 20-1076 21
clearly establishes that, after his return to work, he still was
in the process of applying to U.S. Warranty.
Here, as with the affidavit in Buckner, Mr. Hickey’s decla-
ration provides a necessary, previously missing element of
37
the cause of action. In Buckner it was causation; here it is
damages. Without his supplemental declaration, Mr. Hickey
faced the possibility of an adverse judgment because he had
not come forward with any basis for monetary damages or
reinstatement under the FMLA. Like the district court in
Buckner, the district court rationally concluded that
Mr. Hickey’s declaration was an effort to undo the deposi-
tion testimony that precluded his recovery.
Other than Mr. Hickey’s declaration, there was no other
evidence to support Mr. Hickey’s claim that he had been of-
fered a position with U.S. Warranty. Consequently, like the
district court, we conclude that Mr. Hickey has not come
forward with any evidence supporting his claim that he
should be reinstated to a different position.
Conclusion
Mr. Hickey did not suffer any loss of wages or benefits
prior to his employment being terminated. Moreover, the
evidence of record does not establish that he had been of-
fered, or had accepted, a different position prior to the ter-
mination of his employment. Consequently, he has not come
forward with any basis for monetary or equitable relief un-
37 See Buckner v. Sam’s Club, Inc., 75 F.3d 290, 293 (7th Cir. 1996) (noting
that the affidavit supplied “the missing causal link between the store and
the fall”).
22 No. 20-1076
der § 2617, and Protective was entitled to summary judg-
ment. Accordingly, the district court’s judgment is affirmed.
AFFIRMED