                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ________
                                  No. 03-1386
                                   ___________

Susan W. Hanger,                        *
                                        *
              Plaintiff-Appellant,      *
                                        * Appeal from the United States
       v.                               * District Court for the District of
                                        * Minnesota.
Lake County, a political subdivision    *
of the State of Minnesota; Wilma H.     *
Clark, personally and individually;     *
Clair A. Nelson, personally and         *
individually; Sharon Hahn, personally *
and individually; Stanley Nelson,       *
personally and individually; Derrick    *
Goutermont, personally and              *
individually; and Pamela Parkinson,     *
personally and individually,            *
                                        *
              Defendants-Appellees.     *
                                        *
                                   ___________

                            Submitted: February 12, 2004
                                Filed: December 7, 2004
                                ___________

Before MELLOY, McMILLIAN, and COLLOTON, Circuit Judges.
                           ___________
MELLOY, Circuit Judge.

      Susan Hanger appeals from the district court’s1 grant of summary judgment in
favor of her former employer, Lake County, Minnesota, and the Lake County Board
of Commissioners on her claim under the Family and Medical Leave Act (FMLA),
29 U.S.C. §§ 2601-2654. We affirm.

I.    Background

      Ms. Hanger began her employment with Lake County in April 1996 as
Personnel Officer and Clerk to the Lake County Board of Commissioners. Ms.
Hanger’s work responsibilities included various forms of human resources
administration. In 1998, the Board of Commissioners changed Ms. Hanger’s title to
Human Resources Administrator, and then to Human Resources and Safety
Administrator. As the department head, Ms. Hanger maintained responsibility for the
department budget, reported directly to the Board of Commissioners, and signed her
own time sheets.

        In Ms. Hanger’s June 1998 evaluation, the Board of Commissioners expressed
concern about her job performance. The Board of Commissioners took issue with
Ms. Hanger’s lack of organization and communication skills and her inability to
perform consistently. It further noted that Ms. Hanger was inflexible and easily
irritated.

     In May 1999, one month before her annual performance evaluation, Ms.
Hanger took leave under the FMLA to give birth. The Board of Commissioners hired



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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Pamela Parkinson to serve in Ms. Hanger’s stead while Ms. Hanger took FMLA
leave.

       Ms. Parkinson apparently impressed the Board of Commissioners during her
tenure as the interim department head of the Human Resources Department. On July
13, 1999, approximately two weeks before Ms. Hanger was to return from FMLA
leave, Ms. Parkinson and the Board of Commissioners met to discuss ways to
restructure the Human Resources Department that would enable Ms. Parkinson to
remain working in the department after Ms. Hanger returned. The Board specifically
discussed where to put Ms. Parkinson in the chain of command. Commissioner Clair
Nelson stated that he intended to place Ms. Parkinson in a position of authority over
Ms. Hanger. Ms. Parkinson advised the Board of Commissioners to seek legal advice
on whether their proposed actions would violate the FMLA.

      On July 20, 1999, six days prior to Ms. Hanger’s return to work, the Board of
Commissioners met with her to discuss the restructuring of the Human Resources
Department. Commissioner Nelson told Ms. Hanger that Ms. Hanger would be
working for Ms. Parkinson when she returned. Ms. Hanger drafted a letter of
resignation shortly thereafter, but she did not submit it to the County.

      On July 26, 1999, Ms. Hanger returned to work. Ms. Parkinson advised Ms.
Hanger that she was no longer to communicate directly with any of the Board of
Commissioners. Instead, Ms. Hanger was to direct her comments through Ms.
Parkinson. Ms. Parkinson, rather than Ms. Hanger, controlled the department’s
budget, and Ms. Hanger was required to submit time sheets for Ms. Parkinson’s
review. Ms. Hanger continued to receive the same pay and benefits she had been
receiving when she took FMLA leave.

      On her first day back to work, Ms. Hanger discovered that someone had
accessed pornographic websites on her computer. Ms. Hanger believed Ms.

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Parkinson, whose password was stored in the computer, was the culprit. Ms. Hanger
notified Lake County’s computer personnel and told two other employees about the
pornography. A few days later, Ms. Hanger met with Commissioner Sharon Hahn to
discuss the issue. Commissioner Hahn expressed concerned about the misuse of Ms.
Hanger’s computer but did not blame Ms. Hanger for accessing the pornography.
However, Commissioner Hahn chided Ms. Hanger for spreading the news of her
discovery to other employees.

       On August 10, 1999, Ms. Hanger submitted her resignation. Ms. Hanger then
filed a complaint asserting that Lake County and the Board of Commissioners
violated her rights under the Veteran’s Preference Act of the State of Minnesota. At
a hearing on the matter, three members of the Board of Commissioners testified that
they never intended to place Ms. Parkinson in a supervisory position over Ms.
Hanger. This testimony contradicted statements made during the July 13, 1999
meeting of the Board of Commissioners. When faced with a tape recording of the
July 13, 1999 meeting, the Board of Commissioners withdrew their objection to Ms.
Hanger’s Veteran’s Preference Act claim and reinstated her to her former position
with the full responsibilities of department head. In March 2000, Ms. Hanger
resigned once more and moved with her family out of the country.

       On August 17, 2001, two years and one week after her first resignation, Ms.
Hanger filed suit against the present defendants. Among other things, she claimed
that the defendants violated the FMLA by failing to restore her to the same or an
equivalent position after her FMLA leave. The district court granted summary
judgment in favor of the defendants, finding that Ms. Hanger’s claims were time
barred.




                                        -4-
II.    Applicable Law and Discussion

       We review the district court’s grant of summary judgment de novo. First Bank
of Marietta v. Hogge, 161 F.3d 506, 510 (8th Cir. 1998). Summary judgment is
appropriate when the evidence, viewed in a light most favorable to the non-moving
party, demonstrates that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. Id.

       The FMLA provides eligible employees the right to twelve weeks of maternity
leave. 29 U.S.C. § 2612(a)(1)(A). On return from such leave, an employee is entitled
“to be restored by the employer to the position of employment held by the employee
when the leave commenced[,] or . . . to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of employment.” 29
U.S.C. § 2614(a)(1)(A),(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); see also 29 C.F.R.
825.215(e) (“An equivalent position must have substantially similar duties,
conditions, responsibilities, privileges and status as the employee’s original
position.”).

       Congress created a two-tiered statute of limitations for FMLA claims.
Generally, the statute of limitations for an FMLA violation is “not later than 2 years
after the date of the last event constituting the alleged violation for which the action
is brought.” 29 U.S.C. § 2617(c)(1). However, where an employer engages in a
“willful violation” of the FMLA, the statute of limitations is extended to three years.
29 U.S.C. § 2617(c)(2).




                                          -5-
       Ms. Hanger alleges that defendants violated the FMLA by failing to return her
to the same position she held prior to her leave of absence. When she returned to
work, Ms. Hanger received the same salary and benefits she had before taking leave.
However, Ms. Hanger was no longer considered the head of the human resources
department; she lost control over the department’s budget, had to submit time sheets
to Ms. Parkinson, and no longer reported directly to the Board of Commissioners.

        We need not determine whether Ms. Hanger’s allegations survive summary
judgment on the merits, because we agree with the district court that Ms. Hanger’s
FMLA claim is time barred. The Board of Commissioners explained the restructuring
of the department to Ms. Hanger on July 20, 1999, and the changes in Ms. Hanger’s
employment were realized when she returned to work on July 26, 1999. We do not
believe that each and every instance when these changes may have been enforced
constitutes a new violation of the FMLA, nor do we believe that the Board of
Commissioners committed an additional violation of the FMLA by accepting Ms.
Hanger’s resignation. Rather, we find that Ms. Hanger’s reinstatement claim accrued
on July 26, 1999. Cf. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (in
a Title VII and Civil Rights Act case where the only alleged discrimination occurred
at the time the plaintiff-professor was denied tenure, the statute of limitations began
at the time of that decision, “even though . . . the effects of the denial of tenure . . . did
not occur until later”). Ms. Hanger filed her FMLA complaint on August 17, 2001.
As such, Ms. Hanger failed to meet the two-year statute of limitations.2 The question
remaining is whether the three-year statute of limitations applies.




       2
       The district court refused to toll the statute of limitations for equitable reasons
under a “continuing violations theory.” We agree that there is no basis for an
equitable modification of the statute of limitations in this case. Ms. Hanger was
aware of the alleged violation no later than July 26, 1999, and the Board of
Commissioners did nothing inappropriate to impede her from filing suit.

                                             -6-
       As noted above, the statute of limitations is increased from two to three years
in cases that involve “willful” violations of the FMLA. 29 U.S.C. § 2617(c)(2). The
FMLA does not define willful, and the Supreme Court has not expressly defined it
in the context of the FMLA. However, in McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1988), the Court defined willful in the context of the Fair Labor
Standards Act (FLSA) as follows: “the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the statute.” Like
the First Circuit, we believe the Supreme Court’s definition for “willful” under the
FLSA applies to the term “willful” in the FMLA. See Hillstrom v. Best Western TLC
Hotel, 354 F.3d 27, 33 (1st Cir. 2003) (noting that the FMLA and the FLSA “use the
term ‘willful’ in similar ways and in identical contexts: both provide for a two-year
statute of limitations except in cases of willful violations, when a three-year
limitations period applies”). We also find the Court’s analysis in McLaughlin to be
particularly helpful on the facts of the present case.

        When the Court adopted the above standard for willfulness, it rejected an
alternative, less stringent standard that “merely require[d] that an employer knew that
the FLSA was in the picture[.]” 486 U.S. at 132. The Court found that Congress
“intended to draw a significant distinction between ordinary violations and willful
violations.” Id. at 132. The Court then rejected the less stringent standard because
it “virtually obliterate[d] any distinction between willful and nonwillful violations
[and] ‘it would be virtually impossible for an employer to show that he was unaware
of the Act and its potential applicability.’” Id. at 132-33 (quoting Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985)). In this critique of the less
stringent standard, the Court made clear that an employer’s general knowledge
regarding a statute’s potential applicability does not prove willfulness.

      The Court also rejected a different alternative standard for willfulness that
would have made “the issue in most cases turn on whether the employer sought legal
advice concerning its pay practices.” McLaughlin, 486 U.S. at 134. The Court

                                         -7-
rejected this alternative standard because an employer’s decision not to seek legal
advice could result from negligence or a good-faith, incorrect assumption about a
statute’s applicability just as easily as it could result from recklessness. Id. at 135
(“[The rejected standard] would, however, permit a finding of willfulness to be based
on nothing more than negligence, or, perhaps, on a completely good-faith but
incorrect assumption that a pay plan complied with the FLSA in all respects.”). It is
clear from McLaughlin, then, that an employer’s failure to seek the advice of counsel
does not necessarily prove recklessness.

       Applying the McLaughlin standard for willfulness to the present FMLA case,
Hillstrom, 354 F.3d at 33, we cannot say that the Board knew, or acted with reckless
disregard of whether, it would violate the FMLA. Clearly the Board knew that the
FMLA was “in the picture.” McLaughlin, 486 U.S. at 132. That general knowledge,
however, shows neither that the Board knew it would violate the FMLA nor that it
acted with reckless disregard for whether its conduct would violate Ms. Hanger’s
FMLA rights. Further, although it would have been prudent for the Board to have
followed Ms. Parkinson’s suggestion and obtain legal advice before making the
employment decision, McLaughlin makes clear that the Board's failure to do so does
not demonstrate "willful" violation of the FMLA. Here, the Board of Commissioners
reinstated Ms. Hanger to a position much like the one she previously held, and Ms.
Hanger received the same salary and benefits that she enjoyed before she took FMLA
leave. Taking the facts in the light most favorable to Ms. Hanger, it may be the case
that she identified an FMLA violation. However, we find nothing to suggest
recklessness on the part of the Board of Commissioners. The two year statute of
limitations applies and bars Ms. Hanger’s claim.

      We affirm the judgment of the district court.
                      ______________________________




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