Charles A. McBurney v. Stew Hansen's Dodge City, Inc.

SMITH, Circuit Judge.

Charles A. McBurney filed suit against Stew Hansen’s Dodge City, Inc., (Stew Hansen’s) alleging a violation of the Family and Medical Leave Act of 1991 (FMLA), 29 U.S.C. § 2601 et seq. The district court¹ granted summary judgment in favor of Stew Hansen’s and McBurney appealed. We affirm.

I. Background

In May 1998, Stew Hansen’s hired McBurney as a Night Service Manger. McBurney regularly worked from 4:00 p.m. to 12:00 a.m. five nights a week. On some occasions, McBurney would work past 12:00 a.m. As part of his job, McBur-ney supervised a number of mechanics, aided in hiring mechanics, helped repair vehicles, and helped customers who dropped their vehicles off after regular business hours. In addition, McBurney prepared billing reports, retrieved parts from inventory, moved vehicles into service work bays, and closed the shop at the end of each night shift by locking doors and setting the security alarm. In April 2000, McBurney underwent an emergency appendectomy and, due to complications, was forced to undergo a second abdominal surgery within twenty-four hours. The recovery from the second surgery required McBurney to be hospitalized for several weeks. McBurney’s wife, Patricia McBur-ney, called Stew Hansen’s on April 25 and informed them that McBurney would remain in the hospital for two to three days and would then be on doctor’s orders to rest at home for six weeks.

Unfortunately, McBurney’s hospital recovery was longer than anticipated, lasting several additional weeks. During that time, Patricia again called Stew Hansen’s to advise the dealership of McBurney’s delayed recovery. On June 27, 2000, after his discharge and convalescence, McBur-ney called Stew Hansen’s and told them that he had been cleared by the doctor to resume work. Tom Sherwood, Stew Hansen’s service manager, invited McBurney to have lunch and explained to McBurney that another person, Greg Brimeyer, had filled in as Night Service Manager in his absence and would assume the full-time position permanently.

Sherwood explained that McBurney would be shifted to Quality Control Supervisor, a position created to meet the quality control requirements of the Chrysler Corporation. As a Quality Control Supervisor, McBurney was scheduled to receive the same pay and benefits that he received as Night Service Manager. McBurney requested that he return to his position as Night Service Manager and explained that he would rather not work during the day. Stew Hansen’s denied McBurney’s request and he returned to work as the new Quality Control Supervisor.

As Quality Control Supervisor, McBur-ney test drove repaired vehicles and answered telephones. During the test drives, McBurney would record any unusual sounds or observations. Stew Hansen’s never advised McBurney of his specific job duties and he was often idle. After serving as Quality Control Supervisor, for the remainder of 2000, McBurney began experiencing symptoms of depression, fatigue, and anxiety.

In January 2001, Stew Hansen’s discontinued the Quality Control Supervisor position and made McBurney a daytime “Service Advisor.” McBurney told Stew Hansen’s that he did not want to be a Service Advisor, but was told that he could take the position or quit. McBurney did not receive any training for the Service Advisor position and found the 55-65 hour workweeks to be stressful. In contrast, when he was a Night Service Manager, McBurney routinely worked only 40 hour workweeks. His new duties as Service Advisor included scheduling service appointments and managing service work to be performed, ensuring maintenance and repairs were sufficiently completed, and calculating service costs. The transfer to Service Advisor also brought a salary change. As Night Service Manger and Quality Control Supervisor, McBurney received a salary of $660 per week. As a Service Advisor, McBurney received a lower salary, but an additional part of his pay was commission based and provided the opportunity for McBurney to earn more money than the straight salary position of either Night Service Manager or Quality Control Supervisor.

While Service Advisor, McBurney’s depression, fatigue, and anxiety continued to worsen until he suffered a mental breakdown on April 16, 2001. McBurney’s psychiatrist, Dr. Richards, diagnosed McBur-ney with onset of panic disorder coupled with agoraphobia. Dr. Richards had treated McBurney for a panic disorder McBur-ney experienced several years earlier. Dr. Richards opined that the change in McBurney’s work aggravated his preexisting mental health problems. According to Dr. Richards, the mere anticipation of dealing with unhappy strangers was sufficient to trigger or exacerbate McBurney’s panic attacks.

McBurney was placed on Family and Medical Leave for twelve weeks. At the expiration of the twelve weeks, McBurney failed to return to work and Stew Hansen’s discharged him. McBurney then filed an action in the district court alleging a violation of the FMLA. The district court granted Stew Hansen’s summary judgment motion and McBurney filed the instant appeal.

II. Discussion

We review the grant of summary judgment de novo. N. Natural Gas Co. v. Iowa Util. Bd., 377 F.3d 817, 820 (8th Cir.2004). Summary judgment is appropriate if the record, viewed in a light most favorable to the non-moving party, contains no questions of material fact and demonstrates that the moving party is entitled to judgment as a matter of law. Kincaid v. City of Omaha, 378 F.3d 799, 803 (8th Cir.2004); see also Fed.R.Civ.P. 56(c). In viewing the evidence, the non-moving party is entitled to all reasonable inferences to be drawn from the record. Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.2001). The moving party bears the burden of showing both the absence of a genuine issue of material fact and an entitlement to judgment as a matter of law. Kincaid, 378 F.3d at 803-04 (8th Cir.2004); see also Fed.R.Civ.P. 56(c). Once the moving party has met its burden, the non-moving party may not rest on the allegations of his or her pleadings, but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Kincaid, 378 F.3d at 804 (8th Cir.2004); see also Fed.R.Civ.P. 56(e).

Relief Available Under the FMLA

McBurney argues that the district court erred in concluding that he lacked standing under the FMLA for failing to produce evidence of damages. McBurney contends that he maintained a right “to injunctive or other equitable relief.”² McBurney argues that he is entitled to front pay as an equitable form of damages under the FMLA and therefore does have standing contrary to the conclusion of the district court. McBurney contends that Stew Hansen’s failure to reinstate him to the same or equivalent position as Night Service Manager caused him to be mentally incapacitated such that he can no longer work. As such, he seeks compensation for financial losses after trial due to Stew Hansen’s allegedly unlawful actions; that is, the loss of future wages.

We note that McBurney argues entitlement to front pay for the first time on appeal. The district court never considered the issue. Indeed, McBurney failed to argue a claim for front pay in response to Stew Hansen’s motion for summary judgment. Furthermore, in discovery, McBurney specifically asserted that he was not seeking front pay.

Absent exceptional circumstances we will not consider arguments raised for the first time on appeal. Daisy Mfg. v. NCR Corp., 29 F.3d 389, 395 (8th Cir.1994). We have held that a plaintiff waives the issue of front pay by first raising it in a motion to alter or amend the judgment. Moysis v. DTG Datanet, 278 F.3d 819, 829 (8th Cir.2002) (citing Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1171 (6th Cir.1996)). Likewise, we hold that McBurney has waived any claim to front pay by asserting it for the first time on appeal.

McBurney concedes that he received the same pay and benefits after his return to Stew Hansen’s as Quality Control Supervisor. He also concedes that he cannot return to work due to his condition, and, therefore, did not seek employment, reinstatement, or promotion from Stew Hansen’s. His entire damage claim rests upon the recovery of front pay, a claim that he has waived. In an action brought under the FMLA, “a plaintiff must be able to show a reasonable likelihood that a rational trier of fact would award ... damages or find [an entitlement] to injunctive relief to avoid the entry of summary judgment.” Dawson v. Leewood Nursing Home, Inc., 14 F.Supp.2d 828, 832 (E.D.Va.1998). In this case, McBurney failed to produce evidence of damages. The district court did not err in granting summary judgment.

Retaliation

As a separate claim, McBurney contended that Stew Hansen’s transferred him from Quality Control Supervisor to Service Advisor to retaliate for his using FMLA related leave. On appeal, McBurney argues that the district court erred in granting summary judgment based -on his failure to establish a causal connection between his secondary transfer to Service Advisor and his FMLA related leave. Retaliation through an adverse employment action based on an employee’s exercise of FMLA rights is actionable. Smith v. Allen Health Sys., Inc., 302 F.3d 827 (8th Cir.2002). An employee can prove FMLA retaliation circumstantially, using a variant of the burden shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Id.

To establish a prima facie case of retaliation, McBurney must show that he exercised rights afforded by the Act, that he suffered an adverse employment action, and that there was a causal connection between his exercise of rights and the adverse employment action. Id.; Darby v. Bratch, 287 F.3d 673 (8th Cir.2002). At issue in this case is whether McBurney can show a causal connection between his FMLA leave and his transfer from Quality Control Supervisor to Service Advisor.³

Although not dispositive, the time lapse between an employee’s protected activity and the employer’s adverse action is an important factor when evaluating whether a casual connection has been established. Smith, 302 F.3d at 833. We have held that a two-month interval between protected activity and termination diluted any inference of causation such that the temporal connection could not justify a causal link as a matter of law. Id. (citing Kipp v. Missouri Highway and Transp. Comm’n, 280 F.3d 893 (8th Cir.2002)). In Kipp we held that the kind of causal connection required for a prima facie case is not “but for” causation, but rather, a showing that an employer’s “retaliatory motive played a part in the adverse employment action.” Kipp, 280 F.3d at 897 (internal quotation omitted).

In this case, six months passed between McBurney’s return from FMLA leave and his transfer to Service Advisor. In addition, McBurney was not discharged; rather, he was laterally transferred after Stew Hansen’s made the business decision to eliminate the Quality Control Supervisor position. McBurney’s transfer to Service Advisor actually afforded him the opportunity to make more money. Moreover, Stew Hansen’s honored McBurney’s request for FMLA leave. Viewing the facts in the light most favorable to McBurney, we hold that the evidence does not establish a sufficient causal link. Neither time nor discriminatory actions link his secondary transfer to Service Advisor with his FMLA related leave. Accordingly, McBurney failed to make a prima facie case of retaliation.

For’the foregoing reasons, we affirm the grant of summary judgment.

1 . The Honorable Ronald E. Longstaff, Chief Judge, United States District Court for the Southern District of Iowa.

2 . The FMLA clearly provides for equitable relief. The pertinent statute states that any employer who violates the FMLA "shall be liable to any eligible employee affected ... for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C.A. § 2617(a)(1)(B). Front pay is designed to provide an equitable remedy when it is impractical to order the employee's reinstatement to his or her previous job. See Williams v. Pharmacia, 137 F.3d 944, 952 (7th Cir.1998); Kelley v. Airborne Freight, 140 F.3d 335, 354 (1st Cir.1998).

3 . Stew Hansen's concedes that McBurney exercised his rights under the FMLA and that his approximate $1500 loss in income stemming from his shift to Service Advisor constitutes an adverse employment action.