Breeden v. Novartis Pharmaceuticals Corp. , 646 F.3d 43 ( 2011 )

646 F.3d 43 (2011)

Mary Kate BREEDEN, Appellant
v.
NOVARTIS PHARMACEUTICALS CORPORATION, Appellee.

Nos. 10-7073, 10-7078.

United States Court of Appeals, District of Columbia Circuit.

Argued May 10, 2011. Decided July 8, 2011.

Adam Augustine Carter argued the cause for the appellant/cross appellee. R. Scott Oswald was on brief.

Sally Dworak-Fisher was on brief for amici curiae Public Justice Center, National Partnership for Women & Families and Equal Rights Advocates in support of the appellant.

Daniel B. Kohrman and Melvin Radowitz were on brief for amici curiae National Employment Lawyers Association and AARP in support of the cross-appellee. Stephen Z. Chertkof entered an appearance.

Rachel Goldberg, Attorney, United States Department of Labor, argued the cause for amicus curiae Secretary of Labor in support of the appellant.

Catherine E. Stetson argued the cause for the appellee/cross appellant. Jessica L. Ellsworth was on brief. Aaron R. Gelb, David M. Hernandez and Mark L. Stolzenburg entered appearances.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Mary Breeden (Breeden) sued her former employer Novartis Pharmaceuticals Corporation (Novartis) alleging violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. The district court granted summary judgment in favor of Novartis on Breeden's interference claim and entered a judgment as a matter of law on her retaliation claim. Breeden appeals both the summary judgment and the judgment as a matter of law. Novartis conditionally cross-appeals the district court's mixed-motive jury instruction, arguing that the FMLA does not permit a mixed-motive claim. For the following reasons, we affirm the district court in full and do not reach Novartis's conditional cross-appeal.

I.

Novartis hired Breeden in 2000 as an Associate Transplant Specialist in its Transplant Business Unit (TBU). Her title later changed to Transplant Account Manager (TAM) but her job remained the same. The TBU sells products designed to help prevent an organ transplant recipient's body from rejecting the new organ. As a TAM, Breeden's job was to persuade doctors and hospitals to use Novartis products.

TBU management restructured the sales force in 2003 to focus more closely on the medical centers performing the most organ transplants and thus having the greatest influence in the prescription of transplant drugs. As part of the restructuring, Novartis transferred three of Breeden's Virginia accounts to another TAM—Ruth Ann Sneith (Sneith)—and gave Breeden three new accounts—Johns Hopkins and the University of Maryland, both in Baltimore, Maryland, and the Alfred I. duPont Children's Hospital in Wilmington, Delaware. Breeden was "thrilled" with the realignment because she viewed Johns Hopkins and the University of Maryland as "great centers." Breeden Dep. 38-39. Despite her excitement with the 2003 realignment, her performance did not improve. She was the 25th-rated TBU sales representative—out of 26—in 2002. Id. at 59. In 2003, she was the lowest-rated TBU sales representative—26th out of 26—and received a "below expectations" rating of her sales performance. Id. at 59-60; Trial Tr. 104, Breeden v. Novartis Pharm. Corp., 714 F.Supp.2d 33 (D.D.C. 2010) (Breeden II) (No. 08-625 Mar. 1, 2010) (3/1/10 Tr.) (Breeden testimony). In 2004, she was again rated 25th out of 26. 3/1/10 Tr. 102-03 (Breeden testimony).

In June 2004 Brian O'Callaghan (O'Callaghan), then in charge of the TBU, accompanied Breeden on a sales call. Breeden claimed he asked her if she had children, inquired about her fertility treatments and asked if she planned to return to Novartis after having children. O'Callaghan denied asking those questions. According to him, Breeden asked about his children and he responded, with what he believed to be "a normal response" to her question, by asking Breeden if she had any children. O'Callaghan Dep. 18. O'Callaghan claimed Breeden replied that she did not have kids and "insinuated" she could not have kids, at which point he "changed the subject and moved on to a different conversation feeling uncomfortable." Id.

Shortly thereafter Novartis decided to realign its TBU sales force again and in September 2004 hired the consulting firm ZS Associates (ZS) to develop a new sales model. In November 2004 Breeden informed Novartis she was pregnant and would need FMLA leave beginning in March 2005. ZS presented its realignment proposal to TBU management the next month. During its presentation, ZS discussed "contingency plans," which were intended "to plan for[ ] something out of the ordinary, like a vacancy that hasn't been filled or a maternity leave or a disability of some kind, or a promotion, for example, in the case of M. Stillwell. He was being promoted so we needed to fill a vacancy." Villageliu Dep. 80.^[1] Breeden's upcoming maternity leave was one of the contingency plans discussed at the meeting, as was the upcoming maternity leave of another employee, Kathy Dilger. Id. at 80-81, 84-85. The PowerPoint slide that mentioned Breeden's maternity leave read: "M.K. Breeden on MAT leave in 2005: Who can work with her now to learn the accounts and then temporarily cover her key accounts when she [is] out on maternity leave in May/June?" Id. at 80. A ZS consultant who worked on the assignment stated that no one gave him any reason to believe Breeden would not return from maternity leave. Id. at 81.

ZS placed each account into a tier from I to IV and assigned a "full-time equivalent" (FTE) value to each tier. Id. at 96. For example, a Tier I account typically had a FTE value of .2 to .3, meaning the TAM assigned to that account should devote 20% or 30% of his time to that account. ZS tried to divide the accounts so that each TAM had a FTE as close to 1.0 (100%) as possible.

Effective January 1, 2005, TBU management assigned Breeden nine accounts, all located in the Washington, D.C., area. Breeden no longer serviced Johns Hopkins or the University of Maryland, both Tier I accounts, or duPont Children's Hospital, a Tier III account. Her new accounts included one Tier I account, three Tier II accounts, one Tier III account and four Tier IV accounts. In total, Breeden had a FTE of 1.01. Breeden claimed that she objected to the realignment during a conference call in which O'Callaghan participated. According to Breeden, O'Callaghan responded to her objections by "jokingly" saying "well, you're not coming back from maternity leave anyway, right?". Breeden Dep. 97-101. O'Callaghan not only denied having made that statement but denied having participated in the conversation at all. O'Callaghan Dep. 42 (Q: "Did you ever say anything like [`Well, you're not coming back from maternity leave anyway']?" A: "Never."); id. at 42-43 ("Me getting into conversations on a teli-con with individual sales representatives would never have happened, and that conversation never happened."). Breeden further claimed that both O'Callaghan and her immediate supervisor, Tom Harper (Harper), acknowledged she had suffered from the realignment and promised to make her "whole" and to "compensate" her by giving her some of her old accounts back. Breeden Dep. 126-27, 134-37. Both O'Callaghan and Harper denied making any such promise. O'Callaghan Dep. 43; Harper Dep. 19-20. Sometime in 2005 Harper spoke to Breeden and Sneith about transferring some of Sneith's accounts to Breeden. Sneith Dep. 21-24. The record contains a table comparing the number of transplants performed at Sneith's accounts to the number of transplants performed at Breeden's accounts and describing two possible scenarios for transferring accounts from Sneith to Breeden. Despite the discussion, no change took place. According to Breeden, Harper told her he would not give her any of Sneith's accounts because Sneith was "single." Breeden Dep. 158-61. Harper denied making that statement.

Breeden left Novartis on maternity leave in late March 2005. She returned in July 2005, having extended her leave through the use of vacation time and personal days. On her return, she held the exact position she had held when she left on maternity leave in March, with the same title, same salary, same benefits and, significantly, the same accounts. Harper Decl. ¶ 15; Appellant's Br. 52. Breeden then began to distinguish herself in the TBU. Whereas before 2005 she had ranked last or next-to-last of all TBU sales representatives, in 2005 she ranked 14th out of 25. Breeden Dep. 70-71; 3/1/10 Tr. 103. She ranked even higher in 2006—7th out of 25. Breeden Dep. 71-73; 3/1 /10 Tr. 103. She and her colleagues in her business area received an award at a national sales meeting in 2006 for working in the top producing business area—a far cry from the "below expectations" rating she had received in 2003. Breeden Dep. 156-57; 3/1/10 Tr. 105. Her compensation also increased—substantially—after the realignment.

O'Callaghan left Novartis in mid-2006 and Novartis hired Jesus Leal (Leal) to replace him as head of the TBU. Leal hired Powell & Associates (Powell) in 2007 to recommend further changes to the TBU sales structure. Among other things, Powell recommended the TBU create a new sales territory covering Indiana and Cincinnati, Ohio. Because the TBU believed it could not afford to hire an additional sales representative, Powell recommended it combine Breeden's and Sneith's territories into one territory and terminate either Breeden or Sneith in order to create a sales position for the new territory in the Midwest. Leal Aff. ¶ 4; Weinberg Decl. ¶ 5. Novartis did not consider Breeden for the new territory. Instead it hired a sales representative who had previously worked for a competitor in that region and who thus had existing relationships with accounts there. Having recently combined territories in non-TBU sales groups, Novartis had developed written rules "on how to combine territories and how [to] choose who is the . . . surviving associate." 3/2/10 Tr. (afternoon) 8-9 (testimony of Michael Barr, Novartis director of human resources). Under its rules, Novartis retained Sneith, who had more accounts and prescriptions in the combined territory (formerly Breeden's and Sneith's separate territories). Novartis informed Breeden it was eliminating her position in January 2008.

Breeden sued Novartis in district court in April 2008, asserting an interference claim and a retaliation claim under the FMLA. Her interference claim alleged that Novartis did not give her a substantially equivalent position when she returned from FMLA leave in July 2005. Her retaliation claim alleged that Novartis realigned her accounts in 2005—and failed to keep its alleged promise to make her "whole"—in retaliation for her FMLA maternity leave. Novartis moved for summary judgment on both claims. On February 16, 2010, the district court granted summary judgment to Novartis on Breeden's interference claim but denied summary judgment on her retaliation claim. Breeden v. Novartis Pharm. Corp., 684 F.Supp.2d 58, 60-63 (D.D.C.2010) (Breeden I). The district court found that Breeden's post-2005 realignment position was substantially equivalent to her pre-realignment position. Specifically, the court rejected Breeden's assertion that her post-realignment position required less effort or skill than her pre-realignment position because, it concluded, "more effort and skill should be needed to wring more sales from a smaller territory." Id. at 61. The court also rejected Breeden's argument that she lost the authority to offer customers discounts by noting that every TAM lost that authority after the realignment. Id. The court rejected Breeden's claim that her new account portfolio had less "status" or "prestige" than her previous portfolio, noting that United States Department of Labor regulations specifically exclude "intangible[ ] or unmeasurable aspects of [a] job" when measuring the equivalence of two positions. Id. (quoting 29 C.F.R. § 825.215(f)). Although the court denied summary judgment on Breeden's retaliation claim, it expressed doubt that she would ultimately prevail on the claim. The court identified "proof of damages" as the defect in her retaliation claim, observing that it "may turn out to be insurmountable." Id. at 63.

A. Judgment as a Matter of Law

Breeden's retaliation claim was tried to a jury over three days in March 2010. At the end of Breeden's case-in-chief, Novartis moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). Novartis argued that Breeden failed to show she suffered damages as a result of the alleged retaliation, i.e., the 2005 realignment. The district court, although "inclined to agree with [Novartis] that the proof of causation of damages is virtually nonexistent," nonetheless decided to submit the question to the jury pursuant to Rule 50(b).^[2] 3/2/10 Tr. (afternoon) 33. The court noted "that the passage of three years, the involvement of a new consultant, the increase in the plaintiff's income after 2005, between 2005 and 2008. . . interrupt, attenuate and may defeat the chain of causation." Id.

The jury returned a verdict for Breeden on March 5 and awarded her $289,669 in damages. Novartis moved for judgment as a matter of law or, in the alternative, for a new trial. The district court granted Novartis's motion for judgment as a matter of law on May 26. Breeden II, 714 F.Supp.2d at 35-37. The court held that the FMLA's requirement that an employee suffer damages "by reason of" the FMLA violation requires the employee to prove that the FMLA violation was the proximate cause of his damages. Id. at 35-36. The court found that Breeden's harm—her 2008 termination—was too far removed from the alleged retaliation—the 2005 realignment—with too many intervening causes for the alleged retaliation to be the proximate cause of her termination. Id. at 36-37. On June 1, 2010, Breeden appealed both the judgment as a matter of law and the district court's February 16, 2010 grant of summary judgment to Novartis on her FMLA interference claim.

B. Mixed-Motive Cross-Appeal

In its conditional cross-appeal, Novartis argues the district court erred by instructing the jury that it could find in favor of Breeden on a mixed-motive theory of liability.^[3] Novartis contends that the FMLA, like the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., does not permit mixed-motive claims but requires a plaintiff to prove but-for causation. Because Novartis prevailed in the district court, its cross-appeal is conditional only, meaning we need not reach it if we affirm the district court on Breeden's appeal.

II.

Breeden claims that Novartis interfered with her FMLA rights by failing to restore her to an equivalent position when she returned from FMLA leave in 2005 and that Novartis retaliated against her for taking FMLA leave by giving her smaller, less prestigious accounts in the 2005 realignment and by refusing to reassign her to her old accounts. We address her claims in turn.

A. Interference Claim

We review de novo the district court's grant of summary judgment to Novartis on Breeden's interference claim. Sigmund v. Starwood Urban Retail VI, LLC, 617 F.3d 512, 513 (D.C.Cir.2010). We view the evidence in the light most favorable to Breeden and affirm if "`there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.'" Id. at 513-14 (ellipsis in original) (quoting Fed.R.Civ.P. 56(c)).

The FMLA entitles an eligible employee, upon return from FMLA leave, "to be restored . . . to the position of employment held . . . when the leave commenced; or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment," 29 U.S.C. § 2614(a)(1), and prohibits an employer from "interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise" FMLA rights, id. § 2615(a)(1). Breeden claims Novartis interfered with her FMLA rights by not restoring her to an equivalent position when she returned from FMLA leave in July 2005. The district court appears to have assumed, as Breeden argues here, that Breeden was entitled to be restored to a position equivalent to the one she held in 2004 rather than to the one she held in March 2005 when she began FMLA leave. See Breeden I, 684 F.Supp.2d at 60-61. Although we are not convinced that is the correct comparison, because the issue has not been joined before us and because we believe Breeden's post-FMLA leave position was equivalent to her 2004 position, we can affirm the district court assuming without deciding that it compared the correct positions.

Department of Labor regulations clarify what constitutes an equivalent position. "An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority." 29 C.F.R. § 825.215(a). The equivalency analysis does not, however, encompass "de minimis, intangible, or unmeasurable aspects of the job." Id. § 825.215(f). Breeden acknowledges that she retained the same title and benefits when she returned from FMLA leave and that her compensation increased. She argues nonetheless "that her territory was so drastically cut that her status, her responsibilities, her authority, her level of effort, her job security, and her chances of promotion were all severely and measurably diminished." Appellant's Br. 52-53.^[4]

Breeden first alleges that her post-realignment territory contained "many accounts that were closed doors" because the formularies used by those accounts locked them into using products made by Novartis's competitors.^[5]Id. at 53. Despite her allegation that "many" accounts were closed doors she identifies only one—the University of Virginia. If the formulary in fact "closed doors" on Breeden, it did so only temporarily, as evidenced by the fact that Breeden eventually convinced the University of Virginia to add a Novartis product to its formulary. Breeden Decl. ¶ 14; see also Breeden Dep. 115 ("They were not permanent contracts, . . . they were yearly contracts, so the goal was to get in there and change that. . . ."); id. at 115-16 (Breeden "could readdress [account with formulary using competitor's products] in a year"). Moreover, Sneith testified that an account's use of a formulary did not turn the account into a closed door. See Sneith Dep. 49 (use of competitor's products on formulary does "not necessarily" mean Novartis products are "not allowed to be on the formulary"). Sneith explained that one of her accounts had a contract with a competitor but that a nephrologist at the account preferred Novartis products. The nephrologist used the competitor's products during inpatient treatment but switched the patient to Novartis products when he discharged the patient for outpatient treatment. Id. at 50-51. "So long-term, that patient was going to be on [Novartis] products, but for that four-day window of time when they were in the hospital, they were on the competitor's products. So in that case what the hospital did inpatient didn't really reflect what was going to happen moving forward." Id. at 51. The record therefore does not support Breeden's assertion that the formulary closed doors at many of her accounts.

Breeden's next argument, which seems to contradict her first, claims that her post-realignment accounts required less skill than her pre-realignment accounts "because there were fewer decision-makers and fewer bureaucratic hoops to jump through." Appellant's Br. 54. She also argues her new accounts required less effort "because she spent significantly less time traveling [in her car] to her new accounts." Id. at 55. But the number of "bureaucratic hoops" Breeden had to "jump through" at each account is precisely the type of "intangible[ ] or unmeasurable aspect[]" that we do not consider in assessing the equivalency of positions. 29 C.F.R. § 825.215(f). Additionally, that she spent fewer hours in her car after the realignment, although a measurable aspect of the realignment, does not make her post-realignment position non-equivalent to her pre-realignment position. See Smith v. E. Baton Rouge Parish Sch. Bd., 453 F.3d 650, 652 (5th Cir.2006) (fact that plaintiff no longer had to travel in new position was de minimis, intangible difference). Breeden's job was selling medical products, not driving cars.

Finally, Breeden argues that she enjoyed fewer opportunities to advance her career after the realignment because a TAM needed large accounts like the University of Maryland and Johns Hopkins to receive a promotion. Breeden, however, was hardly a rising star before the 2005 realignment. She had consistently ranked last or next-to-last among sales representatives in the TBU and had received a "below expectations" rating in her sales evaluation. After the realignment, by contrast, Breeden ranked 14th out of 25 sales representatives in 2005—despite being on leave from March to July. In 2006 she rose further to rank 7th out of 25. While Breeden's improved ranking may have resulted partly from the reduced expectations and sales goals that accompanied her smaller account portfolio, that does not alter the fact that she achieved substantial success after the 2005 realignment—success she had failed to attain while servicing larger accounts before the 2005 realignment. Drawing all reasonable inferences in Breeden's favor, we do not believe a reasonable juror could conclude that Breeden's prospects for career advancement were greater before the 2005 realignment—when she was among the least productive TAMs but serviced some of Novartis's largest accounts—than they were after the realignment—when she was among the most productive TAMs while servicing smaller accounts. To the contrary, common sense tells us that a salesman who fails to sell to his employer's largest clients will not long hold his job, much less receive a promotion. Cf. Csicsmann v. Sallada, 211 Fed.Appx. 163, 166 n. 3 (4th Cir.2006) (rejecting plaintiff's argument "that the new position was ultimately slated for layoff while the pre-leave position was not" because "[t]here [was] nothing in the record to support his theory that the pre-leave position would have survived").

The Fourth Circuit, reviewing similar facts, held that a plaintiff's FMLA interference claim was properly dismissed for failure to state a claim on which relief could be granted. Montgomery v. Maryland, 266 F.3d 334, 341-42 (4th Cir.2001), judgment vacated on other ground, 535 U.S. 1075, 122 S.Ct. 1958, 152 L.Ed.2d 1019 (2002); see Montgomery v. Maryland, 72 Fed.Appx. 17, 19-20 (4th Cir. 2003) (reaffirming reasoning and holding on FMLA interference claim). The plaintiff had worked as an administrative aide to the warden of Maryland's Eastern Correctional Institute but, upon returning from FMLA leave, was reassigned to a position as a secretary in the maintenance department. 266 F.3d at 336. She retained the same salary and benefits but argued her new position was not equivalent to her old position because her former duties had been "truly administrative" whereas her new position required her to perform the "most menial of clerical functions." Id. at 341. Additionally, she had her own work area in her old position but shared a room with another employee in her new position. Id. The court rejected the plaintiff's argument that the two positions were not equivalent, finding that her "complaint focuse[d] on precisely the sorts of de minimis, intangible, and unmeasurable aspects of a job that the regulations specifically exclude." Id. The court explained further that "the alleged reduction in the complexity of her tasks and the sharing of work space [fell] within the excluded de minimis category." Id. at 342. The difference between the "truly administrative" tasks she used to perform and the more menial tasks she performed in her new position was "not of sufficient magnitude, especially given the equivalent pay grade . . ., to constitute an FMLA violation." Id.; see also Smith, 453 F.3d at 652 (positions equivalent where plaintiff retained same salary and similar title and job description); Mitchell v. Dutchmen Mfg., 389 F.3d 746, 749 (7th Cir.2004) (positions equivalent where plaintiff retained same salary and benefits but was required to perform additional tasks that "were neither overly time consuming nor physically demanding"); Csicsmann, 211 Fed.Appx. at 166 (positions equivalent where "salary, title, bonus eligibility, health care, and retirement benefits remained unchanged" despite plaintiff's allegation "that the new position was less prestigious and less visible"); Lampley v. IMS Mgmt. Servs., LLC, ___ F.3d ___, ___ (11th Cir.2011) (unpublished) (positions equivalent where plaintiff retained same title, pay and benefits despite changed work location). As in Montgomery, Breeden's allegations "focus[ ] on precisely the sorts of de minimis, intangible, and unmeasurable aspects of a job that the regulations specifically exclude." Montgomery, 266 F.3d at 341. And, again as in Montgomery, Breeden's salary was not "interfere[d]" with. Accordingly, we affirm the district court's grant of summary judgment to Novartis on Breeden's interference claim.

B. Retaliation Claim

The district court granted judgment as a matter of law to Novartis on Breeden's retaliation claim because it concluded that Breeden had failed to establish that Novartis's alleged retaliation in 2005 proximately caused her termination in 2008. We review de novo the district court's grant of judgment as a matter of law and "may affirm only if we find . . . that no reasonable jury could [have reached] a verdict in the plaintiff's favor." Conseil Alain Aboudaram, S.A. v. de Groote, 460 F.3d 46, 50 (D.C.Cir.2006) (internal quotation marks omitted) (ellipsis and alteration in original). Although judgment as a matter of law is "highly disfavored" because it "intrudes upon the rightful province of the jury," Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C.Cir.1994), it is proper if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for" the nonmoving party, Fed. R.Civ.P. 50(a)(1). See Boodoo, 21 F.3d at 1161 (judgment as matter of law proper if plaintiff failed to proffer sufficient evidence of proximate causation); see also Guile v. United States, 422 F.3d 221, 228 (5th Cir.2005) (affirming grant of judgment as matter of law because plaintiff failed to establish proximate cause). The questions before us, then, are whether the FMLA requires a plaintiff with a retaliation claim to establish proximate causation and, if so, whether Breeden presented evidence sufficient to permit a reasonable jury to conclude that the 2005 realignment proximately caused her termination three years later, in 2008.

An employer who violates the FMLA is liable "for damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost . . . by reason of the violation; or . . . any actual monetary losses sustained . . . as a direct result of the violation." 29 U.S.C. § 2617(a)(1)(A)(i)(I), (II). Breeden does not dispute that the district court's jury instructions "properly state[d] the law as set forth in the FMLA" and "incorporate[d] the concept of proximate cause by requiring that Breeden prove that she sustained monetary losses as a direct result of Novartis'[s] retaliation." Appellant's Br. 31 (emphasis in original). The parties thus agree that Breeden had to establish proximate causation. We may therefore assume without deciding that an FMLA retaliation plaintiff must establish proximate causation.

We next ask whether Breeden presented sufficient evidence to establish proximate causation. In determining proximate causation, we ask: "Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?" Hicks v. United States, 511 F.2d 407, 420 (D.C.Cir.1975) (quoting Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 474-75, 24 L.Ed. 256 (1896)).^[6] The district court correctly concluded that there was no continuous succession of events between the 2005 realignment and Breeden's termination. Breeden II, 714 F.Supp.2d at 36-37. Rather, there were several "new and independent cause[s] intervening between" 2005 and 2008. Novartis hired Leal to replace O'Callaghan as head of the TBU in May 2006. Leal hired a new outside consultant, Powell & Associates, to recommend changes to the TBU. That consultant recommended creating a new sales area in the Midwest. Because Novartis believed it could not afford to hire another TAM, the recommendation was to combine Breeden's and Sneith's sales areas. In combining non-TBU sales territories in the past, Novartis had developed rules "on how to combine territories and how [to] choose who is the . . . surviving associate." 3/2/10 Tr. (afternoon) 8-9 (Barr testimony). Pursuant to those rules, Novartis decided to retain Sneith to service the combined sales area. Only then—after each of the foregoing intervening events—did Novartis terminate Breeden.

Breeden attempts to downplay the significance of the intervening events by arguing that her immediate supervisor, Harper, was a "direct and consistent link" between the alleged retaliation in 2005 and her 2008 termination. Appellant's Br. 34. Breeden claims Harper promised to make her "whole" by reassigning her to the accounts she serviced in 2003-2004 but ultimately reneged on that promise in retaliation for her FMLA leave. Id. at 35. She further claims that Harper could have prevented her termination in 2008 and that he was most responsible for choosing to let her go rather than Sneith. The record, however, does not support her assertions. Harper testified that he lacked the authority to rearrange Breeden's accounts in 2005, see 3/2/10 Tr. (morning) 33-34 (testimony of Harper that he referred Breeden's request to his boss, who "wasn't particularly interested in moving accounts around"); Harper Decl. ¶ 11 ("[A]fter [the 2005] realignment, I had no ability or authority to transfer or assign accounts within my sales area or outside my sales area. . . ."), and Breeden acknowledged as much in her deposition, see Breeden Dep. 136-37 (Harper told Breeden that "he would present [her request] to his management, and they would work as a team to fix it"). Additionally, Breeden offered no evidence that Harper played a role in the decision to terminate her. The evidence instead indicates that Barr and John Weinberg, the TBU's executive director of sales and marketing, not Harper, made the decision. See 3/2/10 Tr. (afternoon) at 19-20 (testimony of Harper that he was "just told to get [Breeden] on the phone" and that he called her for Barr); id. at 8-9 (testimony of Barr that he applied rules in determining to terminate Breeden); Am. Compl. ¶¶ 102-03 (Harper called Breeden to connect her to Barr, who "informed Breeden that `outside consultants' had decided to eliminate her territory"); Leal Aff. ¶¶ 5-6 (Weinberg applied rules in deciding to retain Sneith); Weinberg Decl. ¶¶ 6-7 (same). That Harper was responsible for filling the open position in the new Indiana/Cincinnati sales area, moreover, does not relate back to Novartis's decision to terminate Breeden nor is there any evidence that Harper's decision not to consider Breeden for the position was in retaliation for Breeden's taking FMLA leave almost three years earlier. The sales representative Novartis hired for the position had existing relationships with accounts in the new territory—an important qualification that Breeden lacked irrespective of the 2005 realignment.

Breeden further argues the intervening events were not a new and independent cause of her termination because the 2005 realignment made her termination inevitable. She claims that a TBU salesman can attain success and job security only by servicing large, prestigious accounts and that, because she serviced smaller, less prestigious accounts after the 2005 realignment, her career was doomed. Breeden attempts to bolster her argument by claiming that TBU managers reached their positions "by capitalizing on their performance at large transplant centers" like the ones she serviced before 2005 and by noting that Novartis filled the new position created by the 2008 realignment with a salesman who had, in Breeden's words, "important relationships with the major transplant centers" in the newly created area. Appellant's Br. 41-43. She asserts that she "would have been able to maintain [connections] at Hopkins and [University of Maryland] had it not been for" the 2005 realignment and that her "lack of connections at large prestigious transplant centers" was the "final straw" that led to her termination. Id. at 43-44.

Breeden's argument is flawed because the evidence does not establish that simply servicing large accounts guarantees success or job security. Instead it reflects that successfully servicing large accounts enhances a sales associate's career prospects and job security. See 3/1/10 Tr. at 75 (testimony of Breeden that "people that succeeded had these large accounts" such as "Harper, who had done great in Ohio" (emphases added)); id. at 77 (Breeden testimony) ("If you can get into a large account and have success, it's noted by everybody, and from that you're going to be obviously able to work your way up." (emphasis added)). Breeden's managers did not attain their positions because they serviced large accounts but because they successfully serviced large accounts, see, e.g., 3/3/10 Tr. at 27-28 (testimony of John Blutfield, head of TBU's commercial operations from approximately 2005-2006, that Harper and another TBU manager had "legendary relationships" and "a track record of success" with large accounts)—something Breeden was never able to do. That some of the TBU's best sales associates, through "legendary" relationships with its largest accounts, achieved success says nothing about Breeden's career prospects before the 2005 realignment.

Simply put, Breeden adduced no evidence to establish that, had her accounts not been realigned, she would have established and maintained successful relationships with the accounts she serviced before 2005. Accordingly, there is no basis upon which a reasonable jury could conclude that Breeden's career prospects or job security diminished after the 2005 realignment. The evidence, in fact, suggests the contrary. Before the 2005 realignment, she was the last or next-to-last ranked sales associate and received a "below expectations" rating in her 2003 performance review despite the fact that she serviced large, prestigious accounts. She did not achieve success until after the 2005 realignment when she began to service smaller accounts. Not only did her sales rank improve significantly but she also received—jointly with her colleagues in her business area—a sales award at a national conference in 2006 and her compensation increased. These are hardly the signs of a career in decline or of an employee whose termination is inevitable. To the contrary, Breeden's career seems to have been on the rise after 2005.

We agree with the district court that no reasonable jury, relying on the evidence presented at trial, could conclude that the 2005 realignment proximately caused Breeden's termination in 2008. We therefore affirm the district court's grant of judgment as a matter of law to Novartis on Breeden's retaliation claim.

C. Equitable Relief

An employer who violates the FMLA is liable not only for money damages but also "for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B). Breeden claims the jury found that Novartis violated the FMLA by retaliating against her for taking FMLA leave and that the district court's subsequent judgment as a matter of law did not disturb that finding. She raises this argument for the first time on appeal, however, and it is accordingly forfeited. See Bennett v. Islamic Republic of Iran, 618 F.3d 19, 21-22 (D.C.Cir.2010). In response to Novartis's motion for judgment as a matter of law, Breeden had the opportunity to argue that she was entitled to equitable relief even if the district court found that she suffered no monetary damages and granted Novartis's motion but she failed to do so.

Even if the argument were not forfeited, however, we would reject it. The district court instructed the jury that Breeden had to prove four elements "to prevail on her claim of intentional retaliation"—one of which was that she "lost compensation or benefits by reason of Novartis'[s] alleged adverse action, or sustained other monetary losses as a direct result of the alleged adverse action." 3/3/10 Tr. 84. The district court granted judgment as a matter of law to Novartis because it found that Novartis's "alleged adverse action"—the 2005 realignment—did not proximately cause Breeden's 2008 termination. Breeden II, 714 F.Supp.2d at 35-37. The district court thus held that Breeden failed to present sufficient evidence to establish an element necessary to her retaliation claim. In other words, the court held that no FMLA violation occurred. As explained supra, we affirm the district court's holding that Novartis did not violate the FMLA. Accordingly, Breeden is not entitled to equitable—or any other—relief.^[7]

III.

For the foregoing reasons, we affirm the district court's grant of summary judgment to Novartis on Breeden's interference claim and its grant of judgment as a matter of law to Novartis on Breeden's retaliation claim.^[8]

So ordered.

NOTES

[1] Alejandro Villageliu worked on the TBU's 2004/2005 realignment as a ZS consultant. Villageliu Dep. 6-8.

[2] Under Rule 50(b), within "28 days after the entry of judgment," a party whose earlier motion for judgment as a matter of law under Rule 50(a) was not granted "may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59." Fed R. Civ. P. 50(b).

[3] The mixed-motive language appears in Title VII of the Civil Rights Act of 1964, as amended, providing that an employment discrimination plaintiff must establish that discrimination was only "a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (emphasis added); see Ginger v. District of Columbia, 527 F.3d 1340, 1345 (D.C.Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 930, 173 L.Ed.2d 112 (2009). If a plaintiff alleges that discrimination was one of multiple "motivating factor[s]" in his employer's decisionmaking process, the plaintiff is said to have a "mixed-motive" claim. See Ginger, 527 F.3d at 1345. In contrast to Title VII, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., does not permit mixed-motive claims against a private employer and requires a plaintiff to "prove, by a preponderance of the evidence, that age was the `but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., ___ U.S. ___, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009). The Supreme Court has not addressed the viability of a mixed-motive claim under the FMLA, nor has this court.

Novartis moved in limine to preclude Breeden from arguing a mixed-motive theory at trial but the district court held the motion in abeyance until jury instructions. Mot. in limine on Mixed Motive, Breeden II, 714 F.Supp.2d 33 (No. 1:08-CV-00625 Feb. 9, 2010). Ultimately, the court allowed Breeden's counsel to argue a mixed-motive theory to the jury and the district court instructed the jury that Breeden need only establish that her taking FMLA leave was "a motivating factor" in Novartis's decision to realign her accounts in 2005.

[4] Breeden urges us to define "status" as used in 29 C.F.R. § 825.215(a) in conformity with Department of Labor regulations interpreting "status" under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4313(a)(2)(A)-(B), (a)(3)(A)-(B). See 69 Fed.Reg. 56,266, 56,275 (2004). Section 825.215 defines status precisely enough for us to conclude that Novartis restored Breeden to an equivalent position without resort to regulations promulgated under a different statute.

[5] "A formulary is essentially a list of prescription drugs preferred by a particular health care provider or plan." Appellee's Br. 9 n.4.

[6] The Restatement (Second) of Torts (1965) § 433 identifies three considerations in determining proximate cause: "[1] the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; [2] whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; [3] lapse of time." See also W. Page Keeton et al., Prosser and Keeton on The Law of Torts, § 41, at 264 (5th ed. 1984) ("[L]egal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.").

[7] The cases on which Breeden relies to argue she is entitled to appropriate equitable relief are easily distinguished. She relies most heavily on Colburn v. Parker Hannifin/Nichols Portland Division, 429 F.3d 325 (1st Cir. 2005), but that case says only that a "hypothetical plaintiff who succeeds in establishing a retaliatory firing claim would no doubt have been `prejudiced by the violation' and would thus be theoretically entitled to the full array of remedies provided by the statute." Id. at 335 n. 6 (emphasis added); see also Traxler v. Multnomah Cnty., 596 F.3d 1007, 1010 (9th Cir.2010) (employee demoted to lower-paying position and then fired for taking FMLA leave entitled to both monetary and equitable remedies); Miller v. AT & T, 83 F.Supp.2d 700, 701-09 (S.D.W.Va.2000) (employee fired in violation of FMLA); Rogers v. AC Humko Corp., 56 F.Supp.2d 972, 974 (W.D.Tenn. 1999) (employee fired in retaliation for taking FMLA leave). Breeden, by contrast, does not clear the first hurdle—that of "establishing a retaliatory firing." Colburn, 429 F.3d at 335 n. 6.

[8] Because we affirm the district court on Breeden's appeal, we do not reach Novartis's conditional cross-appeal regarding the viability of a mixed-motive claim under the FMLA.