           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Hoge v. Honda of America            Nos. 03-3452/3477
        ELECTRONIC CITATION: 2004 FED App. 0317P (6th Cir.)
                    File Name: 04a0317p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: Mary Ellen Fairfield, VORYS, SATER,
                  FOR THE SIXTH CIRCUIT                                   SEYMOUR & PEASE, Columbus, Ohio, for Appellant.
                    _________________                                     Gary A. Reeve, REEVE & WATTS, Worthington, Ohio, for
                                                                          Appellee. ON BRIEF: Mary Ellen Fairfield, VORYS,
 LORI HOGE,                         X                                     SATER, SEYMOUR & PEASE, Columbus, Ohio, for
              Plaintiff-Appellee/ -                                       Appellant.    Gary A. Reeve, REEVE & WATTS,
                                                                          Worthington, Ohio, for Appellee. Joshua J. Morrow,
                Cross-Appellant, -                                        MARSHALL & MORROW, Columbus, Ohio, for Amicus
                                     -  Nos. 03-3452/3477
                                     -                                    Curiae.
             v.                       >
                                     ,                                                       _________________
                                     -
 HONDA OF AMERICA MFG .,             -                                                           OPINION
 INC.,                               -                                                       _________________
           Defendant-Appellant/ -
                 Cross-Appellee. -                                          CLELAND, District Judge. This appeal concerns the
                                     -                                    timing and nature of an employee’s right to job restoration
                                    N                                     under the Family Medical Leave Act (“FMLA”), 29 U.S.C.
        Appeal from the United States District Court                      § 2614(a). On February 14, 2002, the United States District
       for the Southern District of Ohio at Columbus.                     Court for the Southern District of Ohio granted Plaintiff Lori
  No. 00-00995—Edmund A. Sargus, Jr., District Judge.                     Hoge partial summary judgment on her claim for relief under
                                                                          the FMLA. The district court determined that, after Plaintiff
                     Argued: June 16, 2004                                appeared and attempted to return to work on June 27, 2000,
                                                                          she was entitled to be restored to her former position or an
            Decided and Filed: September 16, 2004                         equivalent position with Defendant Honda of American
                                                                          Manufacturing, Inc. (“Honda”) by June 28, 2000 because she
 Before: RYAN and COOK, Circuit Judges; CLELAND,                          was returning from authorized FMLA leave, ruling that
                  District Judge.*                                        Honda violated the FMLA when it failed to return Plaintiff to
                                                                          an equivalent position until July 31, 2000. The district court
                                                                          subsequently awarded Plaintiff monetary damages, attorneys’
                                                                          fees, and costs.
                                                                            Defendant appeals, arguing that the FMLA required Honda
                                                                          to reinstate Plaintiff to her employment position or an
    *
     The Ho norable Robert H. Cleland, United States District Judge for   equivalent position only within a reasonable time, not
the Eastern District of Michigan, sitting by designation.

                                  1
Nos. 03-3452/3477            Hoge v. Honda of America         3    4     Hoge v. Honda of America              Nos. 03-3452/3477

immediately, and that there is no issue of fact that Honda did       On April 20, 2000, Honda approved Hoge’s request for
so in this case. Honda claims that Plaintiff’s physical            continuous FMLA leave from May 11 until June 12, 2000 for
limitations, her unanticipated return, and the significant         abdominal surgery unrelated to her back injury. On or about
changes made by Honda to its production processes during a         June 12, 2000, Hoge telephoned Honda to request an
“model changeover” reasonably prevented Honda from                 extension of her FMLA leave, informing Defendant that she
restoring Plaintiff to work until July 31, 2000.                   would need additional time to recover from her abdominal
                                                                   surgery. Although the parties agree that Honda approved two
   Plaintiff cross-appeals, challenging three of the district      requested extensions of FMLA leave beyond Plaintiff’s
court’s determinations. First, Plaintiff claims that the lower     original June 12 expected return date, they dispute the date of
court erred in determining that Plaintiff was entitled to be       her anticipated return.
reinstated under the FMLA, 29 U.S.C. § 2614(a), by June 28,
2000, arguing that Honda should have reinstated her                   The lower court concluded that “the undisputed evidence
immediately on June 27, 2000. Second, she challenges the           reveals . . . that Plaintiff failed to give any advance notice of
district court’s determination that she waived her FMLA right      her return so as to allow Defendant time to immediately
to full restoration by agreeing to a “Gradual Return to Work”      locate an equivalent position.” On the other hand, Plaintiff
program on July 31, 2000. Third, she appeals the district          states that she never requested FMLA beyond June 26 and
court’s decision on her request for liquidated damages.            that Honda’s documentation shows that her FMLA leave was
                                                                   twice extended and was scheduled to end on June 26, 2000.
  We affirm in part, reverse in part, and remand for further       Examining the evidence in the record reveals the existence of
proceedings consistent with this opinion.                          an issue of fact on when Honda expected Plaintiff to return.
      I. FACTS AND PROCEDURAL HISTORY                                 The evidence of Hoge’s expected return date is equivocal.
                                                                   In a letter dated June 28, 2000, Honda approved a continuous
   In November 1995, Plaintiff Lori Hoge, a production             FMLA leave extension “beginning on 6/12/00 and ending on
associate at Honda’s East Liberty Ohio plant, sustained a back     7/19/00.” The letter stated that Honda “expected [Plaintiff]
injury in a non-work related car accident. She was                 to return to work at the beginning of [her] shift on 7/20/00.”
hospitalized, took an extended leave of absence from her job,      However, in another letter dated June 30, signed by a
and returned to work in March 1996. Her injury, a fracture of      different representative of Honda’s Leave Coordination
a lumbar vertebrae, imposed several permanent physical             Department, Mark Lippencott, Honda approved continuous
restrictions on her work activities. Plaintiff’s permanent work    FMLA leave for Hoge from June 26, 2000 (the day before
restrictions included: no jumping in or out of cars; no lower      Plaintiff attempted to return to work) until July 12, 2000 with
back extensions in excess of fifteen degrees; no lower back        her expected return on July 13, 2000. Mr. Lippencott signed
flexion in excess of thirty degrees; no pushing or pulling liner   a third letter sent to Plaintiff, also dated June 30, 2000, which
racks; no lifting of more than fifteen pounds; and a forty-hour    approved continuous “Medical leave” from July 13 until
workweek limitation. After her back injury, Hoge returned to       December 31, 2000. These documents reveal that Honda
work on the “door line,” a position that accommodated her          approved (although possibly ex post) Plaintiff’s absence from
physical restrictions. She worked on the door line, taking         work as FMLA leave for the period between June 12 and June
intermittent FMLA leave for her back injury, until she took        27, 2000 and also suggest that Honda did not expect Plaintiff
the approved FMLA leave leading to the instant dispute.            to return to work on the morning of June 27. On the other
Nos. 03-3452/3477            Hoge v. Honda of America         5    6    Hoge v. Honda of America              Nos. 03-3452/3477

hand, Plaintiff’s affidavit states that she did not request        than full time and her weekly hours increased over six weeks.
FMLA leave beyond June 26, 2000. Further, a leave of               Honda did not restore Plaintiff to a full-time work schedule of
absence extension request, dated June 19, 2000 and approved        forty hours per week until September 18, 2000.
by Honda on June 28, 2000, establishes June 26, 2000 as the
return date for Hoge.                                                 Plaintiff filed a two-count complaint against Honda,
                                                                   alleging violation of her FMLA rights and wrongful adverse
  During Hoge’s leave, Honda continued instituting a “new          employment action in violation of Ohio public policy. The
model changeover” that included multiple engineering and           parties voluntarily dismissed the state claim, leaving only the
stylistic changes for the production of its year 2000 models.      FMLA interference claim. The parties filed cross-motions for
The model changeover directly affected Honda’s assembly            summary judgement and the district court granted Plaintiff’s
department where Hoge worked and was gradually                     motion in part and denied Defendant’s motion. The district
implemented between February 8 and August 15, 2000.                court ruled that Defendant violated the FMLA, 29 U.S.C.
                                                                   §§ 2615(a)(1) and 2614(a), by failing to reinstate Plaintiff to
  After obtaining a release from her treating physician, Dr.       her position on the door line or an equivalent position by June
Ronald Spier, Plaintiff appeared for work on June 27, 2000,        28, 2000. The district court ruled that Plaintiff had a right to
expecting to return to her door line position. Upon her return,    restoration to her door line position or an equivalent under
she presented to Honda’s medical department a “Physician’s         29 U.S.C. § 2614(a), notwithstanding the fact that she
Permit” which stated that she was able to return to her            continued to have permanent physical restrictions associated
previous position on the door line. Plaintiff returned with the    with her back injury. The lower court also found that it was
same physical restrictions associated with her back injury that    undisputed that “Defendant had several jobs which Plaintiff
she had before taking leave. She expected to be placed in a        could perform as to all essential functions, since she [was]
position which accommodated those restrictions. The                currently working in such position and ha[d] been in one or
medical department contacted Brett Strine, the person              more of such positions since her return to work on July 31,
responsible for placing Hoge. Mr. Strine considered possible       2000.” The district court also rejected Defendant’s argument
placements in light of the ongoing model changeover and            that 29 U.S.C. § 2614 permits employers a “reasonable time”
staffing levels, but informed Plaintiff that no positions were     to reinstate an eligible employee returning from approved
available. Honda then conducted a placement review but did         FMLA leave, concluding that Defendant violated the FMLA
not find a suitable position for Plaintiff until July 26, 2000.    by failing to reinstate Plaintiff to a position by June 28. The
Hoge eventually returned to a position on the engine line on       court, however, also dismissed Plaintiff’s argument that she
July 31, 2000. Honda claims that the delay in finding an           was entitled to immediate restoration on June 27 because, in
equivalent position was reasonable and was caused by several       its view, the undisputed evidence revealed that she failed to
factors including Plaintiff’s unexpected return and the time       give Honda any advance notice of her return. The district
required to locate an equivalent position to accommodate           court further ruled that Plaintiff could not recover lost wages
Hoge’s physical restrictions in light of the substantial changes   associated with her gradual return to work because Plaintiff’s
made to its production processes.                                  physician approved the GRTW program and Plaintiff did not
                                                                   object. The district court found no evidence that Plaintiff
  Plaintiff’s restoration to a position on the engine line was     made any attempt to take advantage of Honda’s policy which
accomplished in accordance with a “Gradual Return to Work”         permitted any associate to terminate a gradual return to work
(“GRTW”) program. Under this program, Hoge worked less
Nos. 03-3452/3477           Hoge v. Honda of America            7   8    Hoge v. Honda of America              Nos. 03-3452/3477

program and to return to full-time employment with physician                             III. DISCUSSION
approval.
                                                                                           A. The FMLA
  The court denied Plaintiff’s motion for liquidated damages
under 29 U.S.C. § 2617(a)(1)(A) and granted Plaintiff’s               The FMLA entitles an eligible employee to as many as
application for attorneys’ fees and costs under 29 U.S.C.           twelve weeks of leave during any twelve-month period if the
§ 2617(a)(3). The district court awarded Plaintiff $18,112.50       employee has a “serious heath condition that makes the
in attorneys’ fees and $1,244.99 in costs.                          employee unable to perform the functions of the position of
                                                                    such employee.” 29 U.S.C. § 2612(a)(1)(D). The statute
              II. STANDARD OF REVIEW                                defines “serious health condition” as “an illness, injury,
                                                                    impairment, or physical or mental condition that involves (A)
  We review the district court’s summary judgment                   inpatient care in a hospital, hospice, or residential medical
determinations under Federal Rule of Civil Procedure 56 de          care facility; or (B) continuing treatment by a health care
novo. Arban v. West Publ’g Corp., 345 F.3d 390, 400 (6th            provider.” Id. at § 2611(11). An employee seeking to use his
Cir. 2003). Summary judgment is appropriate                         FMLA leave must notify the employer that FMLA-qualifying
                                                                    leave is needed. Arban., 345 F.3d at 400; Chandler, 283
  if the pleadings, depositions, answers to interrogatories,        F.3d at 825; Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th
  and admissions on file, together with affidavits, if any,         Cir. 1998). The FMLA also gives the Secretary of Labor
  show that there is no genuine issue as to any material fact       notice and comment rule-making authority and directs the
  and that the moving party is entitled to judgment as a            Secretary to issue regulations “necessary to carry out” the
  matter of law.                                                    Act. 29 U.S.C. § 2654; Ragsdale v. Wolverine World Wide,
                                                                    Inc., 535 U.S. 81, 86 (2002).
Fed. R. Civ. P. 56(c). In addition, “[w]e may affirm a
decision of the district court if correct for any reason,              This court recognizes two distinct theories for recovery
including one not considered below.” United States Postal           under the FMLA: (1) the “entitlement” or “interference”
Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 330 F.3d          theory arising from 29 U.S.C. § 2615(a)(1); and (2) the
747, 750 (6th Cir. 2003).                                           “retaliation” or “discrimination” theory arising from
                                                                    29 U.S.C. § 2615(a)(2). As this court has stated, “[t]he
   This court reviews an award of liquidated damages under          [FMLA] creates ‘prescriptive and proscriptive employee
the FMLA under the same standard used for such                      rights.’” Taylor v. Union Inst., 30 Fed.Appx. 443, 2002 WL
determinations under the Fair Labor Standards Act. Chandler         252443, at *7 (6th Cir. Feb. 19, 2002) (unpublished opinion)
v. Specialty Tires of Am., 283 F.3d 818, 827 (6th Cir. 2002).       (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159
Thus, we review the lower court’s ruling on liquidated              (1st Cir. 1998)); see also Arban, 345 F.3d at 400-01.
damages for an abuse of discretion. Id.
                                                                      Plaintiff’s claim rests on the “interference” theory. The
                                                                    interference provision of the Act, § 2615(a)(1), creates
                                                                    prescriptive rights. Taylor, 30 Fed.Appx at 452, 2002 WL
                                                                    252443, at *7. It provides that “[i]t shall be unlawful for any
                                                                    employer to interfere with, restrain, or deny the exercise of or
Nos. 03-3452/3477            Hoge v. Honda of America         9    10        Hoge v. Honda of America                   Nos. 03-3452/3477

the attempt to exercise, any right provided in this subchapter.”   Section 2614(a) describes the FMLA restoration right. It
29 U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b). To        provides, in relevant part:
prevail on a claim for violation of an employee’s prescriptive
rights under § 2615(a)(1), the plaintiff need not show that he       (a) Restoration to position
was treated worse than other employees, just that he was
denied an entitlement under the Act. Taylor, 30 Fed. Appx.                    (1) In general
at 452, 2002 WL 252443, at *7. An employer may violate
§ 2615(a)(1) regardless of the intent behind its conduct.                     Except as provided in subsection (b) of this section,
Arban, 345 F.3d at 401; Hodgens, 144 F.3d at 159.                             any eligible employee who takes leave under section
                                                                              2612 of this title for the intended purpose of the
        B. Restoration Under 29 U.S.C. § 2614(a)                              leave shall be entitled, on return from such leave--

   To prevail on her interference claim under § 2615(a)(1),                      (A) to be restored by the employer to the position
Plaintiff must establish that Honda interfered with a FMLA                       of employment held by the employee when the
right to medical leave or to reinstatement following FMLA                        leave commenced; or
leave. Arban, 345 F.3d at 401; see also Cavin v. Honda of
Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003). Hoge must                     (B) to be restored to an equivalent position with
establish that: (1) she was an eligible employee, (2) Honda is                   equivalent employment benefits, pay, and other
a covered employer, (3) she was entitled to leave under the                      terms and conditions of employment.
FMLA, (4) she gave Honda notice of her intent to take leave,
and (5) Honda denied her FMLA benefits or interfered with                                                ...
FMLA rights to which she was entitled. Cavin, 346 F.3d at                     (3) Limitations
719. The parties do not dispute the first four of these
elements; their dispute turns on the fifth. Plaintiff maintains,              Nothing in this section shall be construed to entitle
and the lower court ruled, that Honda interfered with                         any restored employee to-
Plaintiff’s FMLA rights and entitlement to restoration to her
position on the door line or an equivalent under 29 U.S.C.                                               ...
§ 2614. Honda maintains that Hoge’s right to restoration
under the Act required it to restore her only within a                        (B) any right, benefit, or position of employment
reasonable time after she was capable of returning.                           other than any right, benefit, or position to which the
                                                                              employee would have been entitled had the
   The FMLA not only grants the statutory right for an                        employee not taken the leave.
eligible employee to take up to twelve weeks of leave, but
also creates the concomitant right for an employee who has         29 U.S.C. § 2614(a) (emphasis added).1
taken leave “to be restored by the employer to the position of
employment held by the employee when the leave
commenced.” 29 U.S.C. § 2614(a)(1)(A); Pharakhone v.                    1
Nissan N. Am., Inc., 324 F.3d 405, 407 (6th Cir. 2003).                     An “equivalent po sition” under 29 U.S.C. § 2 614 (a)(1)(B) is

                                                                        one that is virtually identical to the employee's former position
Nos. 03-3452/3477                Hoge v. Honda of America                11   12    Hoge v. Honda of America              Nos. 03-3452/3477

  The Secretary of Labor has also promulgated a regulation                    have been entitled had the employee not taken the leave.”
describing employee rights on returning from FMLA leave.                      29 U.S.C. § 2614(a)(3)(B); 29 C.F.R. § 825.216(a) (“An
29 C.F.R. § 825.214. It provides:                                             employee has no greater right to reinstatement or to other
                                                                              benefits and conditions of employment than if the employee
  (a) On return from FMLA leave, an employee is entitled                      had been continuously employed during the FMLA leave
  to be returned to the same position the employee held                       period.”). An employee returning from FMLA leave is not
  when leave commenced, or to an equivalent position                          entitled to restoration unless he would have continued to be
  with equivalent benefits, pay, and other terms and                          employed if he had not taken FMLA leave. For instance, an
  conditions of employment. An employee is entitled to                        employer need not restore an employee who would have lost
  such reinstatement even if the employee has been                            his job or been laid off even if he had not taken FMLA leave.
  replaced or his or her position has been restructured to                    See Arban, 345 F.3d at 401; Pharakhone, 324 F.3d at 407;
  accommodate the employee's absence.            See also                     Chandler, 283 F.3d at 825.
  § 825.106(e) for the obligations of joint employers.
                                                                                In addition, the right to restoration does not arise unless the
  (b) If the employee is unable to perform an essential                       returning employee is able to perform the essential functions
  function of the position because of a physical or mental                    of the position or an equivalent. 29 C.F.R. § 825.214(b) (“If
  condition, including the continuation of a serious health                   the employee is unable to perform an essential function of the
  condition, the employee has no right to restoration to                      position because of a physical or mental condition, including
  another position under the FMLA. However, the                               continuation of a serious health condition, the employee has
  employer's obligations may be governed by the                               no right to restoration to another position under the FMLA.”);
  Americans with Disabilities Act (ADA). See § 825.702.                       See also Green v. Alcan Aluminum Corp., 198 F.3d 245, 1999
                                                                              WL 1073686, at *2 (6th Cir. Nov. 16, 1999) (unpublished
Id. (emphases added).                                                         opinion) (no FMLA violation when twelve weeks expired and
                                                                              plaintiff could not perform essential functions); Reynolds v.
   There are a few limitations (sometimes referred to as                      Phillips & Temro Indus., Inc., 195 F.3d 411, 414 (8th Cir.
exceptions) on an employee’s right to restoration upon timely                 1999) (quoting 29 C.F.R. § 825.214(b)).
return from FMLA leave under § 2614(a). First, the
substantive right is not absolute because the right established                  Next, the FMLA permits employers to apply a uniform
“shall [not] be construed to entitle any restored employee to                 policy or practice that conditions restoration under § 2614(a)
. . . any right, benefit, or position of employment other than                on the receipt of medical certification from the employee’s
any right, benefit, or position to which the employee would                   healthcare provider stating that the employee is able to
                                                                              resume work. 29 U.S.C. § 2614(a)(4). Further, an employer
                                                                              may delay restoration until an employee submits the required
    in terms of pay, benefits and working conditions, including
                                                                              “fitness-for-duty” certification. 29 C.F.R. §§ 825.310(f),
    privileges, perquisites and status. It must involve the same or           825.311(c) & 825.312(c). However, the regulations permit an
    substantially similar duties and responsibilities, which must             employer to seek such a fitness-for-duty certification “only
    entail substantially equivalent skill, effort, responsibility, and        with regard to the particular health condition that caused the
    authority.                                                                employee’s need for FMLA leave.” 29 C.F.R. § 825.310(c).
29 C.F.R. § 82 5.215(a).
Nos. 03-3452/3477            Hoge v. Honda of America        13    14    Hoge v. Honda of America              Nos. 03-3452/3477

   None of these limitations to Hoge’s right to restoration        phrase into a statute when Congress has left it out. Keene
apply. Honda does not dispute Plaintiff’s right to restoration     Corp. v. United States, 508 U.S. 200, 208 (1993); United
or argue that any of the above limitations apply. Rather,          States v. Health Possibilities, P.S.C., 207 F.3d 335, 339-40
Honda disputes the timing of its duty to restore Hoge to an        (6th Cir. 2000). As we have stated before: “‘It is not the
equivalent position, arguing that the terms and structure of the   Court’s role to address perceived inadequacies in [a statute].’”
FMLA required it to restore Hoge to an equivalent position         In re Aberl, 78 F.3d 241, 244 (6th Cir. 1996) (quoting Wolf
only within a reasonable time after learning of her readiness      Creek Collieries v. Robinson, 872 F.2d 1264, 1269 (6th Cir.
to work under the circumstances in her case. Honda asks this       1989) (alteration in original)).
Court to reverse the district court’s ruling and enter summary
judgment on its behalf because there is no genuine issue of          The FMLA’s text, set forth in more detail above, provides
fact that Honda complied with the FMLA’s requirement to            that an employee returning from FMLA leave “shall be
restore Plaintiff within a reasonable time after learning she      entitled, on return from such leave – . . . to be restored by the
was ready to return to work. It argues that the FMLA should        employer” to his prior position or an equivalent position with
be read in pari materia with the Americans With Disabilities       the same conditions of employment. 29 U.S.C. § 2614(a).
Act (“ADA”) and that employers must be afforded a                  The plain meaning of “on return from such leave” is not
reasonable amount of time to evaluate whether an employee          ambiguous and, contrary to Honda’s argument, will not be
is disabled, to identify reasonable accommodations, and to         construed to mean “within a reasonable time after the
minimize potential liability under other federal and state laws.   employee is able to return from such leave.” If an employee
In short, Honda asks this court to read a reasonableness           returning from FMLA leave can perform the essential
element into the timing of when a returning employee is            functions of his previous or an equivalent position, the right
entitled to restoration under 29 U.S.C. § 2614(a) where such       to restoration is triggered on the employee’s timely return
an element does not exist in the text.                             from leave. 29 U.S.C. § 2614(a); 29 C.F.R. § 825.214(b). If
                                                                   Congress had intended to permit employers to restore
   We decline Honda’s invitation. “The starting point in           employees within a reasonable time after their need for
interpreting a statute is its language, for ‘[i]f the intent of    FMLA leave had ended, it would have so stated. See
Congress is clear, that is the end of the matter.’" Good           42 U.S.C. § 12112(b)(5)(A) (discrimination under the ADA
Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)               includes “not making reasonable accommodations to the
(quoting Chevron U.S.A. Inc. v. Natural Res. Defense               known physical or mental limitations of an otherwise
Council, Inc., 467 U.S. 837, 842 (1984)). If clear, the plain      qualified individual with a disability”). The text of the
meaning of the statutory language controls; departure from         FMLA makes restoration required once an employee’s
the plain language of a statute is appropriate only in “‘rare      entitlement arises (i.e., once he is capable of performing the
cases [in which] the literal application of a statute will         job’s essential functions). It also provides an employer the
produce a result demonstrably at odds with the intentions of       ability to condition restoration upon medical certification that
its drafter . . . or when the statutory language is ambiguous.’”   the employee is able to return to work. The clear import of
Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 842           this language requires restoration upon return, unless one of
(6th Cir. 1994) (citation omitted). Moreover, “we ordinarily       the specific limitations or exceptions apply. See Chandler,
resist reading words or elements into a statute that do not        283 F.3d at 825 (“With exceptions not at issue here, an
appear on its face.” Bates v. United States, 522 U.S. 23, 29       employer is obliged to restore the employee to her prior
(1997). In fact, courts have a duty to refrain from reading a      position or an equivalent position upon return from leave.”).
Nos. 03-3452/3477           Hoge v. Honda of America        15    16   Hoge v. Honda of America             Nos. 03-3452/3477

   Moreover, because “[a]n employee may not be required to          employee may not be required to take more FMLA leave
take more leave than necessary to address the circumstances         than necessary to resolve the circumstance that
for which leave was taken,” an employer would violate the           precipitated the need for leave. In both of these
FMLA’s prohibition against interfering with FMLA rights if          situations, the employer may require that the employee
it decided to extend an employee’s leave anytime such an            provide the employer reasonable notice (i.e., within two
extension would be “reasonable” under the circumstances.            business days) of the changed circumstance where
29 C.F.R. § 825.312(e); 29 U.S.C. § 2615(a)(1).                     foreseeable. The employer may also obtain information
                                                                    on such changed circumstances through requested status
   Although the FMLA does not define the time when an               reports.
employee’s “return” from FMLA leave becomes effective,
thus triggering an employer’s duty to restore a returning         29 C.F.R. § 825.309(c) (emphasis added). Section 825.312(e)
employee, the FMLA’s regulatory scheme specifically               of the Department of Labor’s FMLA regulations further
contemplates circumstances where the date of an employee’s        provides: “If the employee is able to return to work earlier
return from FMLA leave may change. Ordinarily, the                than anticipated, the employee shall provide the employer two
employer and employee will communicate and establish the          business days notice where feasible; the employer is required
return date for an employee taking FMLA leave. In such            to restore the employee once such notice is given.” 29 C.F.R.
cases, the timing of the employee’s “return” will not be at       § 825.312(e).
issue and the restoration entitlement will arise when the
employee returns in a timely manner and in a physical                In this case, Hoge was originally expected to return from
condition to perform the essential functions of the position he   her abdominal surgery leave on June 12, 2000. As of that
left, and after providing the medical certification if required   date, Honda would have been aware that it would be required
by an employer under 29 U.S.C. § 2614(a)(4). In fact,             to restore her to work. It is undisputed, however, that Hoge
29 C.F.R. § 825.309 facilitates communications regarding the      requested an extension of her FMLA leave beyond June 12.
return date for an employee on FMLA leave by permitting an        The record does not establish her new expected return date
employer to “require an employee on FMLA leave to report          and the parties dispute whether Honda had reason to expect
periodically on the employee’s status and intent to return to     her return on the morning of June 27. If her early return from
work.”                                                            approved leave was not anticipated, then the regulations
                                                                  governing an employee’s early return from FMLA leave
  Moreover, the FMLA regulations specifically address             apply. Under 29 C.F.R. §§ 825.309(c) and 825.312(e),
circumstances in which an employee needs to use more or           Plaintiff was required to provide Honda reasonable notice
less FMLA leave time than originally anticipated. In such         (i.e., two business days) that she would be returning sooner
cases, employers are entitled to reasonable notice of an          than expected. Thus, by showing up for work at the
employee’s return.                                                beginning of the work day, Hoge put Honda on reasonable
                                                                  notice that she was ready and capable of returning to the
  It may be necessary for an employee to take more leave          position that she left (with the accommodation of her physical
  than originally anticipated. Conversely, an employee            limitations associated with her back injury) or its equivalent.
  may discover after beginning leave that the
  circumstances have changed and the amount of leave                If Honda did not have reasonable notice of Hoge’s return
  originally anticipated is no longer necessary. An               date, it was not required to permit Plaintiff to return to work
Nos. 03-3452/3477            Hoge v. Honda of America        17    18   Hoge v. Honda of America             Nos. 03-3452/3477

until June 29, 2000, two business days after receiving notice      impart a reasonable delay period for the employer to find a
of her willingness and ability to return to work. Conversely,      suitable position.
if Honda did have reasonable notice that Hoge’s extension of
FMLA leave was to end on June 26, 2000, it was required to           The right to restoration arises when the employee is able to
restore her to a door line position or an equivalent on June 27,   perform the essential functions of the position he left or an
2000 because it does not dispute that Hoge was capable of          equivalent. If an employee can do so and has provided
performing the essential functions of such a position.             medical certification (if required by a uniform policy), the
                                                                   employer cannot simply delay restoration while it takes a
   Honda argues that the FMLA has no time limit on when            reasonable amount of time to find a suitable position. Again,
restoration must occur and that restoration of an employee         a “reasonable” delay in restoration after reasonable notice is
need only be reasonable under the circumstances. Honda             given would force the employee to take more FMLA leave
claims that an “immediate restoration” rule is not required by     than is required and would interfere with an employee’s
the text of § 2614(a) because it is silent as to the timing of     exercise of FMLA rights. 29 U.S.C. § 2615(a)(1); 29 C.F.R.
when an employer must restore an employee returning from           § 825.312(e).
FMLA leave. It argues that the flexible process contemplated
by the statutory structure mandates that the court impart a           Next, we are not persuaded by Defendant’s argument to
reasonableness element to an employer’s duty to restore an         read the FMLA in pari materia with the ADA because the
employee under § 2614(a). Honda also argues that the FMLA          statutes deal with the same subject. See Jones v. St. Louis-
should be read in pari materia with the ADA and that failing       San Francisco Ry. Co., 728 F.2d 257, 262 (6th Cir. 1984).
to read a reasonableness requirement into an employer’s duty       Although the FMLA and the ADA both regulate the
to restore an employee under § 2614(a) would expose                employer-employee relationship, they protect an employee in
employers to potential ADA and state law liability. We are         different ways. We have recently highlighted this distinction.
not persuaded.
                                                                     The FMLA protects an employee from adverse action as
   As discussed above, the language found in § 2614(a) is not        a result of his taking leave for a serious medical
ambiguous. Additionally, the structure of the FMLA does not          condition. It does not protect an employee from adverse
require the court to read a reasonableness element into the          action motivated by the underlying medical condition
restoration provision. The provision permitting an employer          itself. Although the factual scenarios that give rise to an
the opportunity to restore an employee to the same position or       FMLA or ADA cause of action may often coincide, the
an equivalent does not express clear Congressional intent to         legal entitlements that flow from these facts will differ.
permit employers a reasonable time to delay restoration. The
“equivalent position” provision under § 2614(a)(1)(B)              Chandler, 283 F.3d at 825. “The ADA and the FMLA have
recognizes the dynamic needs of employers and permits them         divergent aims, operate in different ways, and offer disparate
to restore employees to positions other than the exact one they    relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir.
left, but it does not permit the employer to delay an              2001); Watkins v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir.
employee’s restoration for a “reasonable time” after returning     1998) (FMLA and ADA “causes of action may interrelate,
from FMLA leave. Likewise, the requirement under                   [but] they involve separate and distinct statutory claims”).
29 C.F.R. § 825.214(b) that a returning employee be capable        Unlike the FMLA, the finding of a disability is the key “that
of performing the essential functions of the job does not          unlocks the storehouse of statutory protections” under the
Nos. 03-3452/3477            Hoge v. Honda of America        19    20   Hoge v. Honda of America             Nos. 03-3452/3477

ADA. Navarro, 261 F.3d at 101. The ADA prohibits                   under whichever statutory provision provides the greater
discrimination against employees who have a disability as          rights to employees. When an employer violates the FMLA
defined by the statute. 42 U.S.C. § 12112(a). An employer          and a discrimination law, an employee may be able to recover
must make “reasonable accommodations to the known                  under either or both statues.”) Under 29 U.S.C. § 2614(a), an
physical or mental limitations of an otherwise qualified           employee is entitled to be restored if he can perform the
individual with a disability.” Id. at § 12112(b)(5)(A).            essential functions of his job. If he can, he is entitled to
                                                                   restoration and no potential ADA liability exists because he
  Honda argues that Plaintiff’s return raised potential            is capable of doing the work done previously. If he cannot,
application of the ADA and that the FMLA should be read to         no FMLA liability follows for failing to restore that
include a reasonableness element like the ADA. Honda               employee. However, the employer must then also look to the
contends that it should be given reasonable time to find a         separate and distinct potential for liability under the ADA or
position as a reasonable accommodation of Plaintiff’s              other statutes.
physical restrictions. This argument is unavailing. “[T]he
leave provisions of the [FMLA] are wholly distinct from the          The position Hoge left accommodated her physical
reasonable accommodation obligations of employers covered          limitations associated with her back injury and Honda was
under the [ADA].” 29 C.F.R. § 825.702(a).                          required to restore her to that position or an equivalent upon
                                                                   her return. Honda does not argue that it did not have an
   The ADA implications surrounding Hoge’s physical                equivalent position or that Plaintiff could not perform the
limitations existed prior to her FMLA leave associated with        essential functions of such an equivalent position.
her abdominal surgery and the uncontested evidence shows
that she was capable of performing the essential functions of        Next, Honda’s assertion that construing § 2614(a) to
the position which she left. As such, Honda was not                include an “immediate” right to restoration on return from
confronted with new potential ADA liability. Honda points          FMLA leave would render certain regulations passed by the
out that courts have recognized that an employer’s inquiry         Secretary of Labor invalid is without merit. The FMLA
under the ADA to identify alternative positions is a time          requires restoration “on return” from leave and the regulations
consuming process and that an employer is permitted a              that permit delay in restoration merely identify when an
reasonable time to make a “reasonable accommodation”               employee’s return is effective, triggering the right to
inquiry under the ADA. See Kiphart v. Saturn Corp., 251            restoration. These regulations are therefore not inconsistent
F.3d 573, 586 (6th Cir. 2001) (“When job reassignment is           with the statute. Although we recognize Honda’s potential
appropriate [under the ADA], an employer ‘should reassign          needs to juggle the realties of a dynamic business
the individual to an equivalent position . . . if the individual   environment with its obligations under the FMLA, its policy
is qualified, and if the position is vacant within a reasonable    arguments (offered to support reading an implicit
amount of time.’" ) (quoting 29 C.F.R. § 1630.2(o)); see also      reasonableness requirement into the statutory language)
Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir.       necessarily fall on deaf ears. Such policy arguments are more
2004); Burns v. Coca-Cola Enters., 222 F.3d 247, 257 (6th          appropriately addressed to the United States House of
Cir. 2000). Because the ADA may permit a reasonable time           Representatives and Senate. See In re Aberl, 78 F.3d at 244.
to make accommodations for statutorily disabled employees,         The text is not ambiguous and the structure of the FMLA
does not however, impact the FMLA’s right to restoration. 29       does not impart a reasonableness element into 29 U.S.C.
C.F.R. § 825.702(a) (“An employer must [ ] provide leave           § 2614(a).
Nos. 03-3452/3477            Hoge v. Honda of America         21    22   Hoge v. Honda of America              Nos. 03-3452/3477

  We affirm the district court inasmuch as Honda was                one month after learning that she was ready to return to work.
required to restore Plaintiff to her previous position or its       Honda made efforts to examine its new positions in light of
equivalent starting at least on June 29, 2000 (two business         the model changeover and Hoge’s physical restrictions. This
days after receiving unambiguous notice of her return).             evidence supports the district court’s good faith conclusion.
However, an issue of fact exists as to whether Honda                Also, the unsettled nature of the timing of an employer’s duty
anticipated Hoge’s return on June 27, 2000. If Honda, in fact,      to restore an employee returning from FMLA leave under the
had reasonable notice that Plaintiff’s FMLA leave was to end        circumstances provides a basis for the district court’s finding
on June 27, 2000, she was entitled to restoration on that date.     that Honda’s interpretation of 29 U.S.C. § 2614(a) was
                                                                    objectively reasonable. There was no abuse of discretion and
                  C. Liquidated Damages                             we affirm the district court’s decision to deny liquidated
                                                                    damages.
   Section 2617(a)(1)(A)(iii) of the FMLA provides that an
employer shall be liable for an amount of liquidated damages,                D. Plaintiff’s Gradual Return to Work
in addition to compensatory damages equal to the amount of
wages, salary, employment benefits, or other compensation             Plaintiff cross-appeals the district court’s conclusion that
denied or lost to an employee, plus interest, by reason of an       she was not entitled to damages on her FMLA claim
employer’s violation of 29 U.S.C. § 2615. Chandler, 283             associated with her gradual return to work. The district court
F.3d at 827. Although liquidated damages are the norm in            rejected Plaintiff’s argument that she was not fully restored to
cases where an employer violates § 2615, the district court         an equivalent position until the end of her gradual return to
may reduce such an award to comprise only compensatory              work policy. It noted that the GRTW program was approved
damages if the employer “proves to the satisfaction of the          by Hoge’s family physician and that it was “undisputed that
court that the act or omission which violated section 2615 . . .    Plaintiff did not object to the gradual program”
was in good faith and that the employer had reasonable              notwithstanding Honda’s policy which permitted her to
grounds for believing that the act or omission was not a            terminate the program and return to full-time employment
violation of section 2615.” 29 U.S.C. § 2617(a)(1)(A)(iii).         with physician’s approval at any time. The district court
“The employer must therefore show both good faith and               found “no evidence that Plaintiff made any [attempt to end
reasonable grounds for the act or omission.” Chandler, 283          the GRTW program] in this case. Thus, the Court [could not]
F.3d at 827 (emphases in original).                                 conclude that the simple fact that Plaintiff was placed on a
                                                                    gradual return to work schedule was a violation of the
   The record supports the district court’s finding that Honda      restoration provisions of the FMLA.”
had both a good faith belief that it had a reasonable time to
find Plaintiff an equivalent position based on her physical           We agree. Plaintiff’s family physician, Dr. Joseph
restrictions and that Honda’s interpretation of the FMLA’s          Ottaviano, approved the GRTW program. Further, Plaintiff
restoration provision was objectively reasonable. As noted by       agreed to her gradual return and failed to object. The
the district court, the evidence reveals that Hoge was on           undisputed evidence reveals that Plaintiff could have elected
FMLA leave when Honda implemented a gradual model                   to terminate the GRTW program at any time with her
changeover which affected its production line positions.            physician’s approval, and that she failed to do so, even after
Plaintiff had significant physical restrictions regarding her job   obtaining a lawyer. Plaintiff argues that Honda did not return
capabilities and Honda located a position for Plaintiff within      her to an “equivalent position” because she did not receive
Nos. 03-3452/3477            Hoge v. Honda of America        23    24   Hoge v. Honda of America            Nos. 03-3452/3477

her regular full-time pay and benefits. Plaintiff complains        not induce her to waive her right to restoration to an
that she was not returned to a job with the same hours and         equivalent position under the FMLA.
pay, but understates the importance of the option she always
possessed to resume working full time under the GRTW                                    CONCLUSION
program. By providing Plaintiff with the option to return to
full-time work (with her own physician’s approval), Honda            For the reasons stated herein, the judgment of the district
placed the key in Plaintiff’s hand, and thus provided Plaintiff    court is AFFIRMED IN PART, REVERSED IN PART, and
with an equivalent position under 29 C.F.R. § 825.215(a).          this matter is REMANDED for further proceedings consistent
                                                                   with this opinion.
   Plaintiff also relies on 29 C.F.R. § 825.220(d) to support
her argument that Honda induced her to waive her FMLA
rights. Section 825.220(d) provides:
  Employees cannot waive, nor may employers induce
  employees to waive, their rights under FMLA. For
  example, employees (or their collective bargaining
  representatives) cannot "trade off" the right to take
  FMLA leave against some other benefit offered by the
  employer. This does not prevent an employee's
  voluntary and uncoerced acceptance (not as a condition
  of employment) of a "light duty" assignment while
  recovering from a serious health condition (see
  § 825.702(d)).
29 C.F.R. § 825.220(d).
   Plaintiff claims that she did not request the GRTW program
and that she was directed to sign the GRTW form before
returning to work. Plaintiff stated: “I was told I needed to
sign the form before I could start my shift.” (Pl.’s Aff. at 2;
JA 272.) This evidence, however, is not sufficient to
establish that Honda induced or coerced Plaintiff into waiving
her FMLA rights. Plaintiff’s acceptance of the GRTW
program under these circumstances does not constitute a
waiver of rights. This is especially true because she agreed to
a restoration program that permitted her to end the gradual
component of her return to work at any time. Because
Plaintiff had the undisputed ability to return to work full time
on the engine line any time after being restored, Honda did
