Charles A. McBurney v. Stew Hansen's Dodge City, Inc.
398 F.3d 998
8th Cir.
2005
Check Treatment
Docket

*1 knowledge held that a creditor’s could be McBURNEY, Appellant, A. Charles

imputed to the debt collector where the plaintiffs representa- creditor knew of the prior transferring tion the file to the STEW HANSEN’S DODGE F.Supp.2d collector. at 80. The CITY, INC., Appellee. “[ajlthough Micare court reasoned that No. 04-1354. Commentary states [on FDCPA] FTC ‘automatically’ not knowledge will Appeals, United States Court of collector, imputed to the debt it does not Eighth Circuit. knowledge state that such cannot be im- Submitted: Nov. puted.” Id. at 80. 2004. Filed: Feb. We decline to follow either Powers or Micare and will not embrace the special exception general

FDCPA as a First,

agency law. there is no textual suggest

basis within the statute to that an

exception to such a well-settled rule was Second,

intended. distinction between “[a]

creditors and debt collectors is fundamen FDCPA, regulate

tal to the which does not Randolph,

creditors’ activities at all.” Thus, authority

F.3d at 729. we have no duty Third, place upon First Bank. if exception

even the FDCPA creates an

allowing principal’s knowledge to be im

puted agent under narrow circum

stances, it not clear on this record relationship

whether the between a credi princi

tor its debt collector is one of instance,

pal-agent. For Schmitt claimed Bank, agent

that FMA was the of First Randolph, the court stated that independent

“debt collectors are contrac ....” if

tors Id. Even we hold as Schmitt it

requests, appears we would neces

sarily liability find the nexus for

Schmitt seeks.

Accordingly, the decision of the district

court is AFFIRMED. *2 Kirlin, argued, Des

Kevin M. West Moines, IA, appellant. Barron, Moines,

Joseph argued, M. Des (Scott brief), ap- IA Beattie on the J. pellee. SMITH, LAY, BENTON,

Before Judges. Circuit SMITH, Judge. Circuit against A. filed suit Charles (Stew Dodge City, Hansen’s Hansen’s) convalescence, discharge a violation of the Fami alleging ney called Stew Hansen’s and told them (FMLA), ly Leave Act of 1991 and Medical that he had been cleared the doctor to seq. 2601 et district U.S.C. Sherwood, *3 resume work. Tom Stew Han- granted summary judgment in fa court1 manager, McBurney sen’s service invited McBurney ap vor of Stew Hansen’s and explained McBurney lunch and have pealed. affirm. We person, Greg Brimeyer, that another had in Night filled as Service in his Background I. absence and would assume full-time May In Stew Hansen’s hired position permanently.

McBurney a Night Manger. as Service explained Sherwood McBurney regularly worked from 4:00 Super- would be shifted to Control p.m. nights to 12:00 a.m. five a week. On visor, position quali- created to meet the occasions, McBurney would work some ty requirements Chrysler control of the job, past 12:00 a.m. As of his McBur- Corporation. As a Super- Control mechanics, visor, of ney supervised number McBurney was scheduled to receive mechanics, hiring the same and benefits that he received helped repair aided Night Manager. McBurney as vehicles, and helped customers who quested that he return to his as regular their vehicles off after dropped explained addition, McBurney hours. In business during day. would rather work billing parts prepared reports, retrieved McBurney’s request Stew Hansen’s denied inventory, from moved vehicles into ser- Quali- and he returned to work as the new bays, shop vice and closed the at the work ty night by locking end of each doors shift McBur- Supervisor, As setting security April alarm. In repaired and an- test drove vehicles 2000, McBurney emergency underwent an telephones. During swered test and, complications, due to appendectomy drives, McBurney would record unusu- undergo was forced to a second abdominal al sounds or observations. Stew Hansen’s twenty-four surgery within hours. The re- job never specific advised from covery surgery required the second duties and he was often idle. After serv- McBurney to be hospitalized several ing Quality Supervisor, as for the wife, Patricia weeks. 2000, McBurney began expe- remainder of ney, April called 25 and Stew Hansen’s riencing symptoms depression, fatigue, informed them that would re- anxiety. days main in the hospital for two three January In Stew Hansen’s discon- and would then be doctor’s orders Supervisor po- tinued the rest at home for six weeks. daytime sition and made Unfortunately, McBurney’s hospital re- Advisor.” told “Service covery longer anticipated, lasting than Hansen’s that he did not want to be a During several additional weeks. Advisor, was told that he could time, again Patricia called Stew Hansen’s quit. take the did dealership to advise the any training not receive for the Service 27, 2000, delayed recovery. On June after Advisor and found the 55-65 hour Longstaff, 1. The Honorable Ronald E. Chief Southern District of Iowa. Judge, United States District Court for the contrast, tion of the FMLA. The to be stressful. district court workweeks granted summary judg- Manager, was a when he ment motion and filed the in- only 40 McBurney routinely worked hour appeal. stant duties His new as Service workweeks. scheduling ap-

Advisor included service II. Discussion managing service work to pointments ensuring grant maintenance and We review the performed, N. judgment de novo. Natural Co. v. sufficiently completed, and Gas repairs were Bd., Iowa Util. The transfer to calculating service costs. Cir.2004). Summary judgment appro brought also

Service Advisor *4 record, priate if the viewed in a light most Night Manger As change. non-moving party, favorable to the con Supervisor, McBurney questions tains no of material fact and per ceived a of week. As $660 moving party demonstrates that the is en Advisor, McBurney received low- judgment titled to as a matter of law. salary, pay an of er additional Omaha, 799, City Kincaid v. 378 F.3d provided of was commission based (8th Cir.2004); 803 see also Fed.R.Civ.P. opportunity McBurney for to earn more 56(c). evidence, In viewing the the non- money straight salary position than the of moving party is entitled to all reasonable either inferences to be drawn from the record. (8th Serrell, Tlamka v. Advisor, McBurney’s de- While Service Cir.2001). moving party bears the anxiety to pression, fatigue, and continued showing burden of the absence of a both worsen until he suffered a mental break- fact genuine issue of material and an enti- McBurney’s psy- April down on judgment tlement to as a matter of law. chiatrist, Richards, diagnosed Dr. Kincaid, Cir.2004); at 803-04 panic coupled onset of disorder with 56(c). see also Fed.R.Civ.P. Once agoraphobia. with Dr. Richards had treat- burden, moving party has met its the non- panic ed for a disorder McBur- moving party may allega- not rest on the ney experienced years several earlier. Dr. pleadings, her tions his or but must set change that opined Richards facts, specific forth affidavit or other aggravated preexist- work evidence, showing genuine that a issue of ing problems. According mental health to Kincaid, material fact exists. 378 F.3d at Richards, Dr. anticipation the mere (8th Cir.2004); see also Fed.R.Civ.P. strangers dealing unhappy was suffi- 56(e). trigger cient to or exacerbate

panic attacks. the FMLA Available Under Relief placed that district argues for twelve At the Medical Leave weeks. concluding court erred he lacked weeks, McBurney expiration the twelve standing failing under the FMLA for failed to return to work and Hansen’s Stew produce damages. evidence of him. an discharged right then filed that he “to contends maintained alleging injunctive equitable action in the district court a viola- or other relief.”2 reinstatement, clearly provides equitable including employment, 2. The FMLA pertinent 2617(a)(1)(B). relief. The statute states that promotion." 29 U.S.C.A. employer who violates the FMLA "shall be pay designed provide equitable Front is an any eligible employee liable to affected ... for remedy impractical when it is to order the equitable may appropriate, such relief as recovery that he entitled to McBurney argues upon pay, of front a claim equitable front an form of brought as that he has waived. an action FMLA, under the FMLA and therefore does have plaintiff under the “a must be able to the conclusion of the standing contrary to show a reasonable likelihood that a ra- McBurney contends that district court. fact ... tional trier of would award dam- him failure reinstate injunctive ages or find [an entitlement] equivalent position as the same or entry summary judg- relief to avoid the him caused to be mental- Nursing ment.” Dawson v. Leewood ly longer such no incapacitated Home, 14 F.Supp.2d such, compensation he seeks work. As (E.D.Va.1998). case, In this after trial due to financial losses produce damages. failed to evidence of actions; allegedly Hansen’s unlawful granting The district court did not err in is, wages. of future loss summary judgment. McBurney argues entitle- We note Retaliation for the time on ment to front first court appeal. The district never consid- claim, separate As *5 Indeed, McBurney ered the issue. failed contended Stew Hansen’s transferred argue response a claim for front in Supervisor him from summary motion to Stew Hansen’s using Advisor to retaliate for his Furthermore, discovery, in judgment. appeal, FMLA related leave. McBur On McBurney specifically asserted that he ney argues that the district in court erred seeking pay. not front granting summary judgment based -on his failure to establish causal connection be exceptional Absent circum secondary tween his transfer arguments not consider stances will we Advisor and FMLA related leave. Re appeal. Daisy raised for the first time on through employment taliation an adverse (8th 389, F.3d Mfg. Corp., v. NCR 29 395 employee’s action on an based exercise Cir.1994). plaintiff have held that a We rights FMLA is actionable. Smith v. Al pay by of front first rais waives issue (8th Inc., Sys., len Health 302 F.3d 827 ing it in a motion to alter or amend the Cir.2002). An employee can Datanet, v. judgment. Moysis DTG 278 circumstantially, retaliation a variant using (8th Cir.2002) 819, (citing Thur 829 shifting of the burden test established Inc., Freight Sys., v. Yellow 90 F.3d man Green, Douglas Corp. McDonnell v. 411 (6th Cir.1996)). 1160, Likewise, we 1171 792, 802-03, 1817, 93 U.S. S.Ct. 36 L.Ed.2d hold that has waived claim 668 (1973). Id. it pay by asserting to front for the first appeal. time on a prima To establish facie case of retaliation, McBurney must show that he

McBurney concedes that he re Act, rights exercised afforded ceived the same and benefits after his action, employment he suffered an adverse return to Hansen’s as Con and that there was a causal connection trol He also concedes rights between his exercise of and the condition, cannot return to work due to his Id.; Darby v. and, therefore, adverse action. employment, not seek did (8th Cir.2002). Bratch, reinstatement, 287 F.3d 673 At promotion from Stew damage Hansen’s. His entire claim rests issue this case is whether (7th Cir.1998); employee's previ- Kelley v. reinstatement to his or her Airborne Pharmacia, (1st Cir.1998). job. Freight, ous Williams v. 137 F.3d 140 F.3d reasons, foregoing For’the we affirm the connection between a causal show grant judgment. transfer from and his FMLA leave Advisor.3 Supervisor LAY, Judge, dissenting. Circuit the time Although dispositive, not (FMLA) The Medical Leave Act ac employee’s protected an lapse between provides employees private right with a is adverse action tivity employer’s and the action, 2617(a)(2), § 29 U.S.C. to recover evaluating important factor when an employer when an interferes with been es a casual connection has whether employee’s rights, an exercise of FMLA Smith, 302 F.3d at 833. We tablished. 2615(a)(1). in- prevail To on an U.S.C. interval be that a two-month have held claim, employee terference must estab- activity and termination protected tween employer lish interfered with of causation such any inference diluted failed to right to medical leave or reinstate jus temporal connection could that the to the or an employee equivalent same a matter of law. Id. a causal link as tify Hoge position upon return to work. Highway Missouri (citing Kipp v. Mfg., Honda Am. (8th Comm’n, Cir. Transp. 280 F.3d 893 Cir.2004). employer’s The inten- 2002)). Kipp held that the kind of we Id. employer tions are irrelevant. prima for a fa required causal connection required employee restore causation, but case is not “but for” cie an position, equivalent position same or “to rather, “re showing employer’s that an benefits, equivalent employment pay, in the ad taliatory played motive employ- and other terms and conditions of *6 Kipp, employment action.” verse 2614(a)(1)(B). § “An equivalent ment.” omitted). (internal quotation at 897 virtually position is one that is identical case, passed In six months this position in terms of employee’s the former McBurney’s return from FMLA between conditions, working in- pay, benefits and Advisor. leave and his transfer and cluding privileges, perquisites status. addition, McBurney was not dis substantially It must involve the same or rather, laterally trans charged; he was responsibilities, and which similar duties the after Stew Hansen’s made busi ferred skill, substantially equivalent must entail decision to eliminate the ness effort, authority.” and responsibility, Supervisor position. McBurney’s 825.215(a). § “[U]pon return from C.F.R. actually af transfer to Service Advisor leave, employees are entitled to FMLA more opportunity him the to make forded equivalent the or an reinstatement same Moreover, money. Hansen’s hon Stew ” without the loss of benefits.... position McBurney’s request ored Bratch, Darby v. light the facts in most Viewing leave. the Cir.2002) (citation omitted). position A that the McBurney, we hold favorable comparable pay, but has fewer offers a sufficient evidence does not establish or future opportunities for advancement time nor discrimina causal link. Neither not offer the same increases in does secondary link transfer to tory actions Id. at 679-80. benefits. with his FMLA related Service Advisor dispute I there is a McBurney failed to conclude Accordingly, leave. regarding equivalency material fact the prima make a facie case retaliation. ming to Service Advisor consti- concedes that ex- from his shift Hansen's rights and that ercised his under the FMLA action. tutes an adverse approximate $1500 loss in income stem- Manager position presented the and a dispute of material fact wheth- position. positions equivalent. the While er these two were McBurney may concede that the rate of I suggest the real issue in before us of standard benefits be and structure assessing McBurney’s interference claim same, positions were the tween the two on judgment is whether McBur- to conceding equiva this is not tantamount prove can damages flowing from this lency FMLA.4 The record under the shows majority violation of the FMLA. The ends McBurney’s position Night former inquiry its into McBurney’s interference job managerial was concludes, claim after it incorrectly my in mechanics, supervising retrieving six view, entire interference parts, ensuring correctly, service was done claim non-compensable rests the dam- customers, discussing repairs and cal ages of emotional distress and lost future culating bills. The To wages. contrary, the the record shows job was an established in the or monetary $1,561.81 loss of in reduced ganization, sought and was after other in wages position. the Service I Advisor employees, recognized respected had a that, believe if McBurney causa- title, permanent occupied office. tion, subsequent the compensable loss is newly-created Quality.Control position FMLA. under the managerial, recognition was not lacked Viewing the light facts the most fa- respect internally, played an ill-defined McBurney, vorable to as we must sum- organization’s operations, role mary judgment, presented we are with the lacked an office. following facts: gave Stew Hansen’s same, job employee

While was to another while non-equivalent leave; had work- he was on FMLA conditions, ing privileges, perquisites, and concocted the at status, equivalent and thus under upon McBurney’s the last minute return 825.215(a). FMLA. liability C.F.R. from leave to avoid under *7 Moreover, FMLA; position utterly the new was so Quality position lacking organization to the that it purely position any job value a sham that lacked virtually job security. duties; no An description offered em- or defined Stew Han- ployee quickly who valued his would sen’s eliminated the Con- position be ill-advised choose this new trol because it served no real job description with no purpose; upon eliminating business responsibility and little over the estab- position, Manager position, lished abruptly yet transferred an- important organization’s non-equivalent which was other position; and in this least, very success. At the has McBurney experienced last majority majority's I concur with the opinion on several im- dissent from the First, portant points: damages has waived has not identified for his ability pay damages by remaining to obtain front claim of interference with his below; second, failing rights. raise it I conclude that has wages compensable damages emotional distress and lost are future identified in the $1,561.81 genuine not available under the Medical Leave amount of and that a dis- third, (FMLA); pute Act regarding equivalency has failed of material fact identify any retaliatory Manager position evidence of a ani- and the necessary mus on prevents summary of Stew Hansen's However, judgment McBurney's to sustain his retaliation claim. I interference claim. $1,561.81. The wages in the sum duced summary judgment

key question claim is whether

MeBurney’s interference $1,561.81 was the loss of prove

he can Hansen’s violation.

caused tough has a case theory, it is his an interference

under disagree I prove. respectfully

case to majority and hold that would on MeBur-

judgment appropriate is not claim.

ney’s interference McGUIRE, Individually and as

Michael Next Friend of Father and

Natural Minor; McGuire, a Elaine

Colleen

McGuire, Plaintiffs-Appellees, MANUFACTURING

DAVIDSON

CORPORATION,

Defendant, LLC, Group Ladder

Louisville

Defendant-Appellant.

No. 03-2307. Appeals, Court of

United States

Eighth Circuit. 19, 2004.

Submitted: Feb. 17, 2005.

Filed: Feb.