                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1354
                                   ___________

Charles A. McBurney,                 *
                                     *
           Appellant,                *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Southern District of Iowa.
Stew Hansen's Dodge City, Inc.,      *
                                     *
           Appellee.                 *
                                ___________

                             Submitted: November 15, 2004
                                Filed: February 16, 2005
                                 ___________

Before SMITH, LAY, and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

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




      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
                                   I. Background
       In May 1998, Stew Hansen's hired McBurney as a Night Service Manger.
McBurney regularly worked from 4:00 p.m. to 12:00 a.m. five nights a week. On
some occasions, McBurney would work past 12:00 a.m. As part of his job, McBurney
supervised a number of mechanics, aided in hiring mechanics, helped repair vehicles,
and helped customers who dropped their vehicles off after regular business hours. In
addition, McBurney prepared billing reports, retrieved parts from inventory, moved
vehicles into service work bays, and closed the shop at the end of each night shift by
locking doors and setting the security alarm. In April 2000, McBurney underwent an
emergency appendectomy and, due to complications, was forced to undergo a second
abdominal surgery within twenty-four hours. The recovery from the second surgery
required McBurney to be hospitalized for several weeks. McBurney's wife, Patricia
McBurney, called Stew Hansen's on April 25 and informed them that McBurney
would remain in the hospital for two to three days and would then be on doctor's
orders to rest at home for six weeks.

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

      Sherwood explained that McBurney would be shifted to Quality Control
Supervisor, a position created to meet the quality control requirements of the
Chrysler Corporation. As a Quality Control Supervisor, McBurney was scheduled to
receive the same pay and benefits that he received as Night Service Manager.
McBurney requested that he return to his position as Night Service Manager and

                                         -2-
explained that he would rather not work during the day. Stew Hansen's denied
McBurney's request and he returned to work as the new Quality Control Supervisor.

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

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

      While Service Advisor, McBurney's depression, fatigue, and anxiety continued
to worsen until he suffered a mental breakdown on April 16, 2001. McBurney's
psychiatrist, Dr. Richards, diagnosed McBurney with onset of panic disorder coupled
with agoraphobia. Dr. Richards had treated McBurney for a panic disorder McBurney

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experienced several years earlier. Dr. Richards opined that the change in McBurney's
work aggravated his preexisting mental health problems. According to Dr. Richards,
the mere anticipation of dealing with unhappy strangers was sufficient to trigger or
exacerbate McBurney's panic attacks.

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

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

                      Relief Available Under the FMLA
      McBurney argues that the district court erred in concluding that he lacked
standing under the FMLA for failing to produce evidence of damages. McBurney

                                          -4-
contends that he maintained a right "to injunctive or other equitable relief."2
McBurney argues that he is entitled to front pay as an equitable form of damages
under the FMLA and therefore does have standing contrary to the conclusion of the
district court. McBurney contends that Stew Hansen's failure to reinstate him to the
same or equivalent position as Night Service Manager caused him to be mentally
incapacitated such that he can no longer work. As such, he seeks compensation for
financial losses after trial due to Stew Hansen's allegedly unlawful actions; that is, the
loss of future wages.

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

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



      2
        The FMLA clearly provides for equitable relief. The pertinent statute states
that any employer who violates the FMLA "shall be liable to any eligible employee
affected . . . for such equitable relief as may be appropriate, including employment,
reinstatement, and promotion." 29 U.S.C.A. § 2617(a)(1)(B). Front pay is designed
to provide an equitable remedy when it is impractical to order the employee's
reinstatement to his or her previous job. See Williams v. Pharmacia, 137 F. 3d 944,
952 (7th Cir. 1998); Kelly v. Airborne Freight, 140 F.3d 335, 354 (10th Cir. 1998).

                                           -5-
       McBurney concedes that he received the same pay and benefits after his return
to Stew Hansen's as Quality Control Supervisor. He also concedes that he cannot
return to work due to his condition, and, therefore, did not seek employment,
reinstatement, or promotion from Stew Hansen's. His entire damage claim rests upon
the recovery of front pay, a claim that he has waived. In an action brought under the
FMLA, "a plaintiff must be able to show a reasonable likelihood that a rational trier
of fact would award . . . damages or find [an entitlement] to injunctive relief to avoid
the entry of summary judgment." Dawson v. Leewood Nursing Home, Inc., 14 F.
Supp.2d 828, 832 (E.D.Va. 1998). In this case, McBurney failed to produce evidence
of damages. The district court did not err in granting summary judgment.

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

      To establish a prima facie case of retaliation, McBurney must show that he
exercised rights afforded by the Act, that he suffered an adverse employment action,
and that there was a causal connection between his exercise of rights and the adverse
employment action. Id.; Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002). At issue in




                                          -6-
this case is whether McBurney can show a causal connection between his FMLA
leave and his transfer from Quality Control Supervisor to Service Advisor.3

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

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

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



      3
       Stew Hansen's concedes that McBurney exercised his rights under the FMLA
and that his approximate $1500 loss in income stemming from his shift to Service
Advisor constitutes an adverse employment action.
                                       -7-
LAY, Circuit Judge, dissenting.

       The Family Medical Leave Act (FMLA) provides employees with a private
right of action, 29 U.S.C. § 2617(a)(2), to recover damages when an employer
interferes with an employee's exercise of FMLA rights, 29 U.S.C. § 2615(a)(1). To
prevail on an interference claim, the employee must establish that the employer
interfered with a right to medical leave or failed to reinstate the employee to the same
or an equivalent position upon return to work. Hoge v. Honda of Am. Mfg., Inc., 384
F.3d 238, 244 (6th Cir. 2004). The employer's intentions are irrelevant. Id. The
employer is required to restore the employee to the same position, or "to an equivalent
position with equivalent employment benefits, pay, and other terms and conditions
of employment." § 2614(a)(1)(B). "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).
"[U]pon return from FMLA leave, employees are entitled to reinstatement to the same
or an equivalent position without the loss of benefits . . . ." Darby v. Bratch, 287 F.3d
673, 679 (8th Cir. 2002) (citation omitted). A position that offers comparable pay,
but has fewer opportunities for advancement or future increases in salary does not
offer the same benefits. Id. at 679-80.

      I conclude that there is a dispute of material fact regarding the equivalency of
the Night Service Manager position and the Quality Control position. While
McBurney may concede that the rate of pay and structure of standard benefits
between the two positions were the same, this is not tantamount to conceding
equivalency under the FMLA.4 The record shows that McBurney's former position


      4
      I concur with the majority on several important points: First, McBurney has
waived his ability to obtain front pay damages by failing to raise it below; second,
damages for emotional distress and lost future wages are not available under the
                                         -8-
of Night Service Manager was a managerial job supervising six mechanics, retrieving
parts, ensuring service was done correctly, discussing repairs with customers, and
calculating bills. The Night Service Manager job was an established position in the
organization, and was sought after by other employees, had a recognized and
respected title, and occupied a permanent office. The newly-created Quality Control
position was not managerial, lacked recognition and respect internally, played an ill-
defined role in the organization's operations, and lacked an office.

       While the pay was the same, the Quality Control position had non-equivalent
working conditions, privileges, perquisites, and status, and thus was not equivalent
under the FMLA. See 29 C.F.R. § 825.215(a). Moreover, the new position was so
utterly lacking in value to the organization that it offered virtually no job security.
An employee who valued his employment would be ill-advised to choose this new
Quality Control position with no job description and little responsibility over the
established Night Service Manager position, which was important to the
organization's success. At the very least, McBurney has presented a dispute of
material fact whether these two positions were equivalent.

       I suggest the real issue before us in assessing McBurney's interference claim
on summary judgment is whether McBurney can prove damages flowing from this
violation of the FMLA. The majority ends its inquiry into McBurney's interference
claim after it concludes, incorrectly in my view, that McBurney's entire interference
claim rests on the non-compensable damages of emotional distress and lost future


Family Medical Leave Act (FMLA); and third, McBurney has failed to identify any
evidence of a retaliatory animus on the part of Stew Hansen's necessary to sustain his
retaliation claim. However, I dissent from the majority's opinion that McBurney has
not identified damages for his remaining claim of interference with his FMLA rights.
I conclude that McBurney has identified compensable damages in the amount of
$1,561.81 and that a genuine dispute of material fact regarding equivalency of the
Night Service Manager position and the Quality Control position prevents summary
judgment on McBurney's interference claim.
                                         -9-
wages. To the contrary, the record shows a monetary loss of $1,561.81 in reduced
wages in the Service Advisor position. I believe that, if McBurney can prove
causation, the subsequent loss is compensable under the FMLA.

       Viewing the facts in the light most favorable to McBurney, as we must on
summary judgment, we are presented with the following facts: Stew Hansen's gave
McBurney's job to another employee while he was on FMLA leave; Stew Hansen's
concocted the Quality Control position at the last minute upon McBurney's return
from leave to avoid liability under the FMLA; the Quality Control position was
purely a sham position that lacked any job description or defined duties; Stew
Hansen's quickly eliminated the Quality Control position because it served no real
business purpose; upon eliminating the Quality Control position, Stew Hansen's
abruptly transferred McBurney to yet another non-equivalent position; and in this last
position McBurney experienced reduced wages in the sum of $1,561.81. The key
question on summary judgment for McBurney's interference claim is whether he can
prove the loss of $1,561.81 was caused by Stew Hansen's violation.

       McBurney has a tough case to prove under an interference theory, but it is his
case to prove. I respectfully disagree with the majority and would hold that summary
judgment is not appropriate on McBurney's interference claim.
                        ______________________________




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