MEMORANDUM OPINION AND ORDER
INTRODUCTION
From 1978 to 2012, Plaintiff Carol Haskell worked as an “Activities Aide” for Defendant CentraCare Health System— Long Prairie (“CCHS”), a hospital and nursing home in Long Prairie, Minnesota. She contends in this action that after taking a three-month leave to treat back problems, CCHS refused to return her to her prior position, in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. CCHS now moves for summary judgment. For the reasons that follow, its Motion will be granted in part and denied in part.
BACKGROUND
Most of the relevant facts are undisputed; where disputed, they are recited below in the light most favorable to Haskell.
CCHS is a 25-bed “critical access hospital” and adjacent 70-bed nursing home, serving the Todd County, Minnesota area. The nursing home provides 24-hour, skilled nursing services to geriatric patients and those needing rehabilitation. Included within the nursing home is the “Rose Lane” unit, which provides care for residents with memory and behavioral problems. Rose Lane includes an Activities Department that plans social activities for residents, as well as exercise classes several days per week. The Activities Department employs two or three Activities Aides, who (among other things) prepare social programs, decorate for and clean up after events, and prepare paperwork charting how and when residents are involved in the department’s activities.
Haskell began working for CCHS as an Activities Aide in 1978. Although she was initially employed on a full-time (40 hours per week) basis, she eventually transitioned to a part-time role, working approximately 24 hours per week on a 6:00 am to 2:30 pm shift. In addition to performing the Activities Aide duties described above, Haskell also ran the Rose Lane exercise program, for which she was paid $1 per hour over and above her regular hourly rate.
Throughout her employment Haskell received positive performance evaluations. Her 2009 review — prepared by her supervisor, Therapeutic Recreation Manager Sharon Reuter — indicated that she met or exceeded CCHS’s expectations for all of her various job duties. This included planning social activities, preparing social functions and cleaning up afterwards, and preparing charting and paperwork documenting resident involvement in activities. Her 2010 review was similar, providing that she exceedеd expectations in the categories working with residents, preparing charting/paperwork, and decorating for (and cleaning up after) social activities, and met expectations in her remaining job functions.
A significant portion of Haskell’s daily responsibilities involved MDS duties. While the exact amount of time varied based on the volume of residents, the number of new admissions, and the like, Haskell devoted approximately 50% to 60% of her working hours to MDS duties, including the necessary computer data entry.
On December 8, 2011, Haskell submitted to CCHS a rеquest for leave under the. FMLA, in connection with a bulging disc in her back. The plan was for her to take 12 weeks off of work, during which she would receive spinal injections in an attempt to alleviate her ’symptoms. CCHS approved the request, with Haskell’s expected return-to-work date set for March 8, 2012.
During Haskell’s absence, Reuter assumed the MDS data-entry duties; the record is somewhat unclear whether it was Reuter or the remaining Activities Aides that undertook the assessment portion of the MDS. In any event, Reuter found it “helpful” to perform the data-entry function herself, as it allowed her to become more familiar with the residents and their abilities. She also felt that she was more efficient performing the data entry because she was a better typist than Haskell. She decided, therefore, to continue performing the MDS duties upon Haskell’s return from leave, with the exception of
For this same reason, Reuter also decided to change Haskell’s working hours to 7:30 am to 4:00 pm (from 6:00 аm to 2:30 pm), due to a greater need to provide residents assistance in the afternoon — assistance that only a CNA could provide. Furthermore, Reuter and her supervisor, Roxanne Ostendorf (thé Director of Nursing), had concerns whether Haskell would be able to perform the exercise program in light of her back problems. Because a different department oversaw the program in Haskell’s absence and it had been “going well” (Haskell Dep. Ex. 11), it was also decided that Haskell would no longer lead the program when she returned.
On February 23, 2012, Haskell called Reuter to advise that she had beеn cleared by her doctor to return to work. Reuter told her that they “needed to talk” about the changes in her position, and they scheduled a conference call for later that week. The conference call took place on February 28, 2012, with Haskell, Reuter, Ostendorf, and Joyce Chan, CCHS’s Director of Human Resources, participating.
Haskell was taken aback by these changes, as they eliminated a significant portion of her previous job duties. When she asked precisely what she would be doing upon her return, she was informed that it would be “ever-changing with the needs of the residents” but would involve more “floor” work, meaning traditional CNA duties such as ambulating residents and assisting with feedings, some of which Haskell had not performed in many years. Haskell then asked for a job description providing specifics about her duties upon her return.
On February 29, 2012, Chan sent a handwritten letter to Haskell enclosing
Accordingly, on March 5, 2012, she sent CCHS a letter “express[ing] concern about not receiving an accurate job description.” (Haskell Dep. Ex. 8.) She noted that in the conference call she has been told she “would no longer be involved in the MDS,” but the second functionality sheеt “continues to list a job functionality within the MDS.” She also questioned her removal from the exercise program, pointing out that she received additional pay for that role that she would no longer receive. She wrote that the situation had “left [her] feeling emotionally distraught and in fear of returning to [her] job.”
On March 6, 2012, Reuter, Ostendorf, and Chan telephoned Haskell to discuss her letter. In their conversation, it was explained that Haskell could continue to lead the exercise program, but only once she provided CCHS with medical certification and only after taking additional classes to “get uр to speed” on changes that had been made in her absence. Reuter reiterated, however, that Haskell would not perform MDS duties.
Haskell was surprised by this phone call, as it came “out of the blue” while she had family members at her home, including her grandchildren. She felt unprepared to take the call and “very intimidated, very harassed” with three supervisors on the line. (Haskell Dep. at 119-21.) She stated that in light of this fact and the changes to her job,' CCHS had created a hostile environment and she felt she could not return to work. Chan asked Haskell if that meant she was resigning, and she answered in the affirmative. She never returned to CCHS.'
In July 2012, Haskell commenced this action, asserting that CCHS violated the FMLA by failing to reinstate her to the position she held before taking leave.
STANDARD OF REVIEW
Summary judgment is proper if, drawing'all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Ricci v. DeStefano,
ANALYSIS
I. The FMLA generally
Congress enacted the FMLA to “balance the demands of the workplace with the needs of families.” 29 U.S.C. §. 2601(b)(1). The statute entitles employees to a total of 12 weeks’ leave from work during any 12-month period for medical reasons or to care for close family members with serious health conditions. § 2612(a)(1).
Here, the Complaint does not clearly indicate whether Haskell asserts an interference claim or a retaliation claim, but she has clarified in her brief that she asserts both. In the Court’s view, only the former claim passes muster.
II. Interference
The FMLA provides that upon return from leave, an employee must be “restored ... to the position of employment held by the employee when the leave
Haskell asserts that CCHS “interfered” with her FMLA rights by not' restoring her to the same job she had when she took leave. CCHS does not dispute that it changed her job duties while she was on leave and, hence, did not offer her the same position. Rather, it argues she was offered an “equivalent” one. (Def. Mem. at 23-30.) To support their arguments, the parties rely upon the same Department of Labor regulation, which provides that 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). Hence, CCHS cannot avoid liability simply because Haskell held the title “Activities Aide” before taking leave and would have held the same title upon her return. See Cooper v. Olin Corp., Winchester Div.,
Haskell contends that the changes to her job duties were material and, hence, she was not offered an equivalent position. CCHS counters that the job changes were de minimis. Although a close call, in the Court’s view the record creates a genuine issue whether the changes were material and, accordingly, whether CCHS offered Haskell an equivalent position.
First, it is undisputed that CCHS changed Haskell’s hours from 6:00-2:30 to 7:30-4:00. Yet, an employee “is ordinarily entitled to return to the same shift or the same or an equivalent work schedule.” 29 C.F.R. § 825.215(e)(2). While Haskell’s new schedulе would encompass the same number of hours, the Court cannot conclude, as a matter of law, that a 90-minute shift in those hours was necessarily de minimis. See Hunt v. Rapides Healthcare Sys., LLC,
McFadden v. Seagoville State Bank, No. 3:08-CV-0467,
Second, and more importantly, a jury could conclude that CCHS changed Haskell’s job duties in a material way when it removed the MDS work. As noted above, before taking leave Haskell spént a substantial portion of her day performing MDS duties, including data entry and patient interviews for quarterly, annual, and other assessments. Upon her return, however, she would only be doing quarterly assessments, which comprised but a small portion of the MDS work. (Reuter Dep. at 18.) Moreover, Reuter expected Haskell to be “on the floor,” which she did not clearly explain but which appeared to involve some component of CNA duties (see Haskell Dep. Ex. 11), including tasks that Haskell testified she had not performed in approximately 30 years (id. at 25).
Cooper supports the Court’s conclusion. There, the plaintiff had been employed as a locomotive operator before taking FMLA leave, but was assigned office work uрon her return, despite retaining the same title, pay, and benefits. The district court dismissed the plaintiffs FMLA interference claim, concluding that she had failed to create a genuine issue whether she had been returned to the same or equivalent position. The Eighth Circuit disagreed and reversed, based on the changes to the plaintiffs job duties.
At bottom, the test for equivalence is “strict,” Breneisen v. Motorola, Inc.,
This does not end the inquiry, however. While proof of intent is not required, the FMLA “does not impose strict liability on employers for interference claims.” Ballato,
CCHS notes that it had undertakеn discussions to change Haskell’s hours before she took FMLA leave, but the record indicates that no final decision was made until .after the leave began. Nothing suggests that the changes in hours or Haskell’s job responsibilities had been communicated, or even hinted, to her before taking leave. See Reid-Falcone,
Haskell’s remaining claim alleges that CCHS retaliated against her for exercising her FMLA rights (by taking leave). An employer may not consider “an emplоyee’s use of FMLA leave as a negative factor in an employment action.” Hite v. Vermeer Mfg. Co.,
Although the -Court has determined that the changes to Haskell’s job were more than de minimis, this does not mean the changes necessarily amounted to a materially adverse employment action. To be materially adverse, the alleged retaliation “must produce some injury or harm.” Littleton v. Pilot Travel Ctrs., LLC,
The Eighth Circuit has repeatedly recognized, for example, that a transfer to another city with the same salary and title does not constitute an actionable adverse employment action. See, e.g., Pettus v. Harvey,
To be sure, Haskell does allege that CCHS removed her from the exercise program, for which she was paid an additional $1 per hour. But she testified that the exercise program lasted an hour to an hour and a half, three times per week, meaning that losing this function diminished her weekly pay by, at most, $4.50. The
Perhaps recognizing that the change in hours and job duties alone would not suffice, Haskell argues that CCHS constructively discharged her. (Mem. in Opp’n at 25-28.) Constructive discharge constitutes a materially adverse employment action. E.g., Fercello v. Cnty. of Ramsey,
“To prove constructive discharge, a plaintiff must show (1) a reasonable person in [her] situation would find the working conditions intolerable, and (2) the employer intended to force [her] to quit.” Quinn v. St. Louis Cnty.,
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS ORDERED that CCHS’s Motion for Summary Judgment (Doc. No. 14) is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to Haskell’s FMLA “retaliation” claim, and that claim is DISMISSED WITH PREJUDICE. The Motion is DENIED as to Haskell’s FMLA “interference” claim.
Notes
. Haskell's regular hourly rate was $15.09. (Friederichs Aff. Ex. III.)
. For reasons undisclosed in the record, Haskell did not receive a 2011 performance evaluation.
. Although Haskell understood the term “MDS” to stand for "Minnesota Data Statistics,” the acronym was created by the federal Centers for Medicare & Medicaid Services (CMS) and actually stands for "Minimum Data Set.” http://www.cms.gov/Research Statistics-Data-and-Systems/Computer-Data-andSystems/Minimum-Data-Set-3-0Public-Reports/index.html (last visited June 30, 2013).
. CCHS disputes this calculation as Haskell's "self-assessment of her time" (Reply Mem. at 2), but her 2010 performance evaluation, which was prepared by Reuter, confirms that Haskell devoted 60% of her time to MDS duties. (Haskell Dep. at 46-47 & Ex. 2.) Moreover, her 2009 evaluation initially indicated 15% for MDS duties, but Reuter crossed that out and wrote 50%, a number Haskell testified was calculated "mutually” with Reuter. (Id. at 38-39.) CCHS also contends that Haskell would have devoted significantly less time to MDS duties but for "her inefficiency at typing” (Reply Mem. at 2), yet no such "inefficiency” was noted on the performance evaluations contained in the record.
. CCHS contends that the only portion of the MDS duties removed from Haskell was data entry. (Def. Mem. at 15.) The record belies this contention — Reuter testified in her deposition that she removed not only data-entry duties, but also the ¡responsibility for performing so-called "comprehensive” resident assessments, including initial assessments (at admission), annual assessments, and assessments when residents had undergone significant changes in functional capacity. (Reuter Dep. at 59-60.) CCHS also asserts that Haskell acknowledged in her deposition that she was losing only the data-entry portion' of the MDS duties.(Reply Mem. at 5), but she corrected that testimony and averred she had been told all of the MDS functions were being reassigned. (See Haskell Dep. at 124 ("Q: Okay. They had clarified ... that the MDS tasks that you would no longer be doing would simply be the data entry, didn't they? A: No, I would not be doing the reviews or anything.") (emphasis added).)
. Reuter took handwritten notes of the call, typed them, and shredded the handwritten ones. (Reuter Dep. at 79-80.) Ostendorf and Chan reviewed and initialed the typewritten notes, which are in the record as Exhibit 11 to Haskell’s deposition.
. The FMLA contains no exhaustion requirement. See, e.g., Sanvee v. Hennepin Cnty. Human Servs., Civ. No. 10-527,
. Several Eighth Circuit cases cited herein have a "red flag” on Westlaw as a result of Torgerson, which abrogated a litany of decisions suggesting summary judgment should be sparingly granted in discrimination cases. Because this Court has cited these cases for
. The statute applies only if (1) the plaintiff has been employed "for at least 1,250 hours of service with [her] employer during the previous 12-month period” and (2) the employer has at least 50 employees within 75 miles of the plaintiff's worksite. 29 U.S.C. § 2611(2)(A, B). There is no dispute these conditions have been met here.
. The Court labels Haskell's claims as "interference” and "retaliation” for the sake of clarity, as both parties have used those labels. The Court notes, however, that these labels are predicated on now-outdated case law. The Eighth Circuit recently clarified that three types of сlaims exist under the FMLA: entitlement, retaliation, and discrimination. See Bosley v. Cargill Meat Solutions Corp.,
. Also notable is that this type of claim is not analyzed using the traditional McDonnell Douglas burden-shifting framework. Stallings,
. CCHS points out that Haskell’s hours had changed over the course of her employment (Def. Mem. at 27), but there is no dispute that her regular hours were 6:00-2:30 for several years prior to taking leave. (See Haskell Dep. at 17-18.)
. CCHS finds "bizarre” Haskell’s claim that she did not perform CNA duties, as she testified in her deposition that she "assisted residents with feeding, which required CNA certification.” (Reply Mem. at 2.) But Haskell did not perform other CNA duties, such as assisting with toileting or bathing (so-called "rеsident cares”), which the record suggests she would have beén required to perform upon her return. (See Haskell Dep. at 85-87; id. Ex. 7 (functionality sheets indicating that “resident cares” would be part of her job).)
. While CCHS also removed Haskell from the exercise program, there does not appear to be any dispute she was told she could resume those duties once she had completed additional training. It is unclear, therefore, whether this- would constitute a material change to Haskell's job. The Court need not resolve that issue, however, because it finds summary judgment inappropriate simply from the change in hours and the rеmoval of MDS duties.
. CCHS first raised this argument in its Reply brief. The Court normally does not entertain such arguments, see D. Minn. LR 7. 1(c)(3)(B), but it will address the argument here.
. CCHS also argues that it escapes liability for "interference” because Haskell resigned from her position. (Def. Mem. at 20-23.) This argument is a non-starter, because Haskell asserts she resigned because CCHS did not restore her to the same (or an equivalent) job. See Watkins v. J & S Oil Co.,
. CCHS argues that in the absence of constructive discharge, Haskell’s damages are limited and she cannot recover future lost wages. In the Court’s view, arguments concerning damages are best left for trial. That said, because only the "interference” claim has survived CCHS’s Motion, a significant award of damages at trial (assuming arguendo Haskell is successful) appears unlikely based on the Court’s review of the evidence in the record.