                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 05-2087



CARLOS G. CSICSMANN,

                                               Plaintiff - Appellant,

             versus


MICHAEL    S.    SALLADA,    JR.;        CGI-AMS,
INCORPORATED, formerly known as          American
Management Systems, Incorporated,

                                              Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-04-1094-GBL)


Submitted:    August 21, 2006             Decided:     December 12, 2006


Before SHEDD and DUNCAN, Circuit Judges, and Richard L. VOORHEES,
United States District Judge for the Western District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.      Judge Voorhees wrote
a separate opinion dissenting in part.


Adam A. Carter, Robert S. Oswald, NOTO & OSWALD, P.C., Washington,
D.C., for Appellant.   Christine N. Kearns, PILLSBURY, WINTHROP,
SHAW, PITTMAN, L.L.P., Washington, D.C., for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Appellant    Carlos    Csicsmann       (“Csicsmann”),   an   information

technology worker, took leave under the Family and Medical Leave

Act, 29 U.S.C. § 2614(a)(3)(B) (“FMLA”) after having hip surgery.

Following his return to work, Csicsmann brought this action against

CGI-AMS, Inc. (“CGI-AMS”) and co-worker Michael S. Sallada, Jr.

(“Sallada”) (together “Appellees”), alleging that the Appellees:

(1) failed to restore him to an “equivalent position” under the

FMLA;   (2)   “regard[ed]   him   as    disabled”    in   violation   of   the

Americans with Disabilities Act of 1990, 42 U.S.C. § 12102(2)(C)

(“ADA”); (3) failed to accommodate him under the ADA; and (4)

retaliated against him for engaging in “protected activity” under

the FMLA, Title VII, 42 U.S.C. § 2000e-3(a), and the Employee

Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (“ERISA”).

The parties filed competing motions for summary judgment, and the

district court entered judgment in favor of Appellees on all

claims.   Csicsmann appeals the district court’s disposition.              For

the reasons that follow, we affirm.



                                       I.

     Given the procedural posture of this case, we summarize the

facts in the light most favorable to Csicsmann.              Evans v. Techs

Application, 80 F.3d 954, 958 (4th Cir. 1996).            In November 2003,

Csicsmann was Server Group Manager in the Information Technology


                                       2
Server Group at American Management Systems, Inc. (“AMS”).1              He

directly reported to Carl Warner (“Warner”), who in turn reported

to   the   Vice   President   of   Information   Technology,   Don   Hirsch

(“Hirsch”). Appellee Sallada also reported to Hirsch but did not

directly supervise Csicsmann.        In early November 2003, Csicsmann

and Sallada engaged in a heated argument when some AMS offices lost

computer connectivity. Csicsmann allegedly reported the incident to

Vice President Hirsch and complained that Sallada “badger[ed]

certain types of people.” J.A. 328.

      Soon after the argument with Sallada, in December 2003,

Csicsmann took FMLA leave to have hip surgery.          He was out of the

office until February 25, 2004. After his return to AMS, Csicsmann

learned that his position had been eliminated and that he would be

working on the Disaster Recovery Project.        Csicsmann’s supervisors

assert     that   they   designed    the   Disaster    Recovery   position

specifically to suit his “vast skill set” and that they assigned

him the high-level responsibility of developing a disaster recovery

plan, as well as creating processes for recovering corporate IT

infrastructure in the case of a disaster.             Csicsmann’s salary,

title, bonus eligibility, health care, and retirement benefits

remained the same as in his prior position, although his job

responsibilities varied.



      1
      AMS is pre-merger incarnation of appellee CGI-AMS. CGI and
AMS merged in March 2004.

                                      3
      On March 4, 2004, Csicsmann informed his supervisors and the

AMS Human Resources department that his hip was increasingly

painful and inquired about adjusting his work schedule and taking

long-term disability.          Human Resources provided Csicsmann with an

application       for   long-term         disability       status   which     he     never

submitted.

      On March 10, 2004, AMS announced its impending merger with CGI

Group Inc., and a CGI employee was tasked with eliminating 10% of

the positions in the IT department in which Csicsmann worked.                          On

May 5, 2004, Csicsmann’s position was selected for termination. By

the   end    of   2004,      all    of    the     duties    previously      handled     by

Csicsmann’s IT department were transferred to CGI facilities in

Toronto     and   all   of    the    Server       Group     positions    at    AMS    were

eliminated.        Csicsmann        has    held     other    employment       since    his

termination.



                                            II.

      After his termination, Csicsmann filed suit challenging AMS’s

conduct towards him in several respects.                       He argued that AMS

retaliated and discriminated against him because he took FMLA leave

and complained about Sallada, and that AMS viewed him as disabled

and improperly denied him a reasonable accommodation under the ADA.

Csicsmann claimed that his new position was less prestigious and

had different responsibilities than the old one.                         According to


                                             4
Csicsmann it was therefore not an equivalent position for FMLA

purposes,   and   his   assignment   to    it   constituted   an   adverse

employment action.

     The district court rejected all of Csicsmann’s claims.           The

court found that Csicsmann’s new position was equivalent under the

FMLA and that the assignment to it did not constitute an adverse

employment action.      The district court found that there was a

legitimate business reason for eliminating Csicsmann’s original

position and that it was not eliminated in retaliation against

Csicsmann for taking FMLA leave or for engaging in any protected

activity under ERISA or Title VII.        Finally, the court found that

Csicsmann was not regarded as disabled under the ADA and therefore

he had no claim for an accommodation.

     On appeal Csicsmann challenges each of these conclusions,

which we consider in turn. This court reviews the district court’s

grant of summary judgment de novo. Med. Waste Assocs. v. Mayor of

Baltimore, 966 F.2d 148, 150 (4th Cir. 1992).        We do so bearing in

mind that summary judgment is appropriate only when there is no

genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1996).




                                     5
                                       III.

                                        A.

     We first consider whether the district court erred in granting

the Appellees summary judgment on Csicsmann’s FMLA claim.                    Because

we agree that Csicsmann received an “equivalent position” upon his

return to work, we find no error.

     The FMLA allows an employee who takes qualifying leave to be

restored either to his original, pre-leave position or to “an

equivalent position with equivalent employment benefits, pay, and

other terms and conditions of employment.” 29 U.S.C. § 2614 (a) (1)

(2000).   We recently explained that an employee does not have an

absolute entitlement to restoration of his pre-leave position after

taking FMLA leave. See Yashenko v. Harrah’s NC Casino, Co., 446

F.3d 541, 549 (4th Cir. 2006).                Further, federal regulations

clarify that the requirement of equivalent terms and conditions of

employment    “does    not    extend    to     de     minimis      or   intangible,

unmeasurable aspects of the job.” 29 C.F.R. § 825.215. Examples of

terms and conditions that should be equivalent are the employee’s

work schedule or his place of work: physical and temporal aspects

of the job. Id.

     Here,    Csicsmann      argues    that    the     new   position       was    not

equivalent to the one eliminated while he was on leave.                  He further

argues that summary judgment is per se inappropriate because

equivalency   is   a   fact-dependent         issue    for   the    jury.         These


                                        6
arguments fail, however, because even viewing the facts in the

light most favorable to him it is undisputed that his salary,

title, bonus eligibility, health care, and retirement benefits

remained unchanged in his new position.          He continued to work the

same schedule at the same physical office.               Although Csicsmann

argues that the new position was less prestigious and less visible

than the pre-leave position, these are the very intangible aspects

of   the   position    appropriately       excluded    from   an    equivalency

determination.   See    29   C.F.R.    §    825.215.      The      concrete   and

measurable aspects of Csicsmann’s positions were exactly the same.2

We therefore hold that AMS restored Csicsmann to an equivalent

position under the FMLA.3




     2
      The dissent takes issue with our determination that
Csicsmann’s new position was an equivalent one. We note intially
that Csicsmann was not entitled to any position: AMS had no
obligation to create a new one for him, but did so anyway.   Given
that and the fact, as we discuss below, that the tangible benefits
of his position--salary, health benefits, disability benefits,
bonus eligibility, retirement benefits, and his title of
“Principal”-- remain the same, summary judgment was appropriate
under our precedent.
     3
      Csicsmann also argues that the new position was ultimately
slated for layoff while the pre-leave position was not, which
requires us to find that the position was not equivalent under 29
C.F.R. § 825.215. This is unpersuasive. The pre-leave position had
already been eliminated when Csicsmann returned to work, and the
entire department was eventually closed after the merger with CGI.
There is nothing in the record to support his theory that the pre-
leave position would have survived.

                                       7
                                        B.

     We next consider whether the district court erred in granting

the Appellees summary judgment on Cscicsmann’s claim that Sallada

“regarded him as disabled” in violation of the ADA.            Again, we find

no error.

     The ADA protects an employee against discrimination by an

employer    if   the   employee   is    “a   qualified    individual   with   a

disability.” Pollard v. High’s of Baltimore, Inc., 281 F.3d 462,

467 (4th Cir. 2002) (quoting 42 U.S.C. §§ 12111(2), 12112(a)).                A

disability under the ADA is “(A) a physical or mental impairment

that substantially limits one or more of the major life activities

of such individual; (B) a record of such an impairment; or (C)

being regarded as having such an impairment.” 42 U.S.C. § 12102(2).

We have explained that in order to defeat summary judgment, an

employee must show that the employer “mistakenly believe[d] that an

actual, nonlimiting impairment substantially limits one of more

major life activities.” Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d

373, 390 (4th Cir. 2001)(quoting Haulbrook v. Michelin N. Am.,

Inc., 252 F.3d 696, 704 (4th Cir. 2001)).             Proof limited to mere

speculation and inferences that an employer believes an employee to

be disabled is not enough for the employee to survive summary

judgment.   See   Haulbrook,      252   F.3d   at   704   (affirming   summary

judgment for the employer because plaintiff failed to present any

concrete evidence that the employer regarded him as disabled).


                                        8
     Csicsmann argues that he is protected by the ADA under part

(C) of the definition of “disabled,” see 42 U.S.C. § 12102(2),

specifically that Sallada regarded him as disabled because he had

difficulty walking. Csicsmann argues that the reduced walking

required in his new position is “indirect proof” of such regard.

However, the record reflects no evidence that Csicsmann was put

into the different position because Sallada or other executives at

AMS felt that he could not perform the duties of his pre-leave job.

It is undisputed that the pre-leave position no longer existed:

there was no possibility of Csicsmann filling it.        Moreover,

Sallada had even rated Csicsmann as a strong performer in a

performance review, and Csicsmann himself admitted that he did not

know what Sallada’s opinion was about his ability to walk.      Even

viewed in the light most favorable to Csicsmann, these allegations

do not rise to the level of a genuine issue of material fact.    We

therefore hold that summary judgment in the Appellee’s favor was

appropriate.4




     4
      It necessarily follows that summary judgment for the
Appellees on Csicsmann’s claim that they failed to acommodate his
disability as required by the ADA is also appropriate. To claim an
accomodation under the ADA, an employee must first show that he is
disabled. See Pollard, 281 F.3d at 467 (“[I]n order to come within
the ADA’s protected class, a plaintiff must first show that she is
disabled within the meaning of the Act.”) The facts that Csicsmann
failed to show that he was regarded as disabled and never argued
that he was actually disabled doom his claim for an accommodation
as well.

                                9
                                     C.

     We hold that because Csicsmann fails to make out a prima facie

case of retaliation under the FMLA, ERISA, or Title VII, the

district court’s grant of summary judgment to the Appellees on the

three retaliation claims was proper.

     Our analysis of a retaliation claim under FMLA and ERISA is

similar to that under Title VII, requiring as a threshold matter

that the employee make out a prima facie case. See Yashenko, 446

F.3d at 550–51 (finding that retaliation analysis under the FMLA

follows the Title VII framework); Conkwright v. Westinghouse Elec.

Corp., 933 F.2d 231, 239 (4th Cir. 1991) (finding that retaliation

analysis   under   ERISA   follows     the   Title   VII   framework).      To

establish a prima facie case of retaliation, an employee must show

that “(1) [he] engaged in protected activity, (2) the employer took

adverse    employment   action   against      [him],   and   (3)    a   causal

connection existed between the protected activity and the adverse

action.” Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242

(4th Cir. 1997) (quoting Ross v. Comm. Satellite Corp., 754 F.2d

355, 365 (4th Cir. 1985)).

     For   the   reasons   discussed      above,   Csicsmann’s     retaliation

claims founder on his inability to show an adverse employment

action. As we have explained, finding an adverse employment action

when an employer changes an employee’s job focuses on metrics like

the employee’s salary, benefits, and opportunity for promotion.


                                     10
See James v. Booz-Allen & Hamilton, 368 F.3d 371, 376 (4th Cir.

2004). The Supreme Court has recently clarified that to constitute

an adverse employment action, the “plaintiff must show that a

reasonable employee would have found the challenged action to be

materially adverse.” Burlington Northern & Santa Fe Rwy. Co. v.

White, 126 S. Ct. 2405, 2415 (2006).   Before White, “[i]n no case

in this circuit have we found an adverse employment action . . .

without evidence that the terms, conditions, or benefits of . . .

employment were adversely affected.” Munday, 126 F.3d at 243; see

also Boone v. Goldin, 178 F.3d 253, 255–57 (4th Cir. 1999) (finding

that transferring an employee to a new position is not an adverse

employment action “absent any decrease in compensation, job title,

level of responsibility, or opportunity for promotion” and that

these are only factors that should be considered in determining

whether an adverse employment action exists).   White explains that

while factors other than the terms and conditions of employment may

be examined in determining whether an adverse employment action

occurred, this is still a heavy burden for the plaintiff: the

alleged adverse action must be material.        See 126 S. Ct. at

2412–15.

     Here, Csicsmann argues that both the elimination of his pre-

leave position and his placement in the new Disaster Recovery job

are adverse employment actions for FMLA and Title VII purposes.

This court has never found an affirmative action on facts like


                                11
these where the terms and conditions of employment remained the

same. See Munday, 126 F.3d at 243.        As White explains, trivial harm

is not enough to constitute an adverse action; rather, the harm

must be material. 126 S. Ct. at 2412–15.           Cscismann fails to show

any   material   harm   here–-indeed,       he   offers   only     evidence     of

intangible alleged harms stemming from his preference for his

previous   position.      As    an   adverse     employment       action   is   a

requirement for a retaliation claim under FMLA and Title VII,

summary judgment to Appellees on these claims was appropriate.

      Csicsmann’s ERISA arguments are somewhat different: he argues

that AMS’s final termination of him in May 2004 was an adverse

employment action in retaliation against his request for a long-

term disability application in March 2004.                Even assuming that

requesting   a   long-term     disability    application     is    a   protected

activity, Csicsmann offers no evidence to show that AMS’s proffered

business reason was pretext for discrimination. See Munday, 126

F.3d at 242 (explaining that an employee must prove that an

employer’s proffered legitimate business reason for taking the

alleged adverse employment action is pretext for discrimination).

It is undisputed that AMS-CGI moved the IT department to Toronto

and ultimately let go all of the former Server Group workers that

Csicsmann worked with. The merger and subsequent reorganization is

clearly a legitimate business reason for terminating Csicsmann’s




                                     12
employment and he offers no evidence beyond speculation to refute

this conclusion.

     Because Csicsmann does not meet his burden of proving a prima

facie case of retaliation under ERISA, FMLA, or Title VII, we hold

that the district court’s grant of summary judgment should be

affirmed on these counts.



                               IV.

     Based on the foregoing, it is hereby ordered that the order of

the district court is


                                                         AFFIRMED.




                                13
VOORHEES, District Judge, dissenting in part:

     I dissent only with respect to the panel’s decision affirming

summary   judgment    in    favor    of    Appellees     on    Appellant’s   FMLA

“interference” or “entitlement” claim.              I concur with the panel

majority on all other issues.

     The FMLA requires an employer to restore an employee to “the

same or an equivalent position with equivalent benefits, pay and

other conditions of employment.”               29 U.S.C. §§2614(a)(1)(A) and

(B); Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541,546 (4th

Cir.2006)(§2614(a) prescribes a “substantive floor” for employer’s

conduct     and   creates    “entitlements         for    employees”)(internal

citations    omitted).     Section   825.215(a)of        the   Code   of   Federal

Regulations defines “equivalent position” and explains:

          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)(emphasis supplied). “The requirement that an

employee be restored to the same or equivalent job with the same or

equivalent pay, benefits and terms and conditions of employment

does not extend to de minimis or intangible, unmeasurable aspects

of the job.”      29 C.F.R. §825.215(f).

     In light of these criteria, Appellant Csicsmann contends that

CIG-AMS violated the FMLA by failing to offer him “equivalent”

                                          14
employment following the elimination of his pre-leave position as

Server Group Manager (“SGM”).               Csicsmann argues that the facts

presented in this case give rise to a jury question and that the

district court erred by deciding this issue as a matter of law.                     As

discussed in greater detail below, a review of the record reveals

that the differences between the SGM position and the Disaster

Recovery (“DR”) position are not merely de minimis, intangible or

unmeasurable.     Because a reasonable jury could find that the jobs

are not “virtually identical” or “substantially similar” in one or

more ways expressly contemplated by the statute, a jury question

exists with respect to FMLA equivalency.

     The Server Group was responsible for most of AMS’s corporate

server equipment for all AMS locations in the United States.                       As

Server   Group     Manager,          Csicsmann    was     tasked     with      primary

responsibility for keeping AMS’s servers up and running around-the-

clock, three hundred and sixty-five days a year. Csicsmann managed

and supervised a team of approximately twenty-four (24) people, was

responsible     for     a    multi-million       dollar    budget,       had   limited

purchasing authority for the Server Group, and reviewed monthly

expenditures     with       AMS’s    Financial   Advisor    to     the   Information

Technology department.              Csicsmann had partial responsibility for

Sarbanes-Oxley compliance and was also the technical lead for

corporate disaster recovery planning and implementation.




                                          15
     On February 27, 2004, the day after he returned from FMLA

leave, Csicsmann was notified that he was being reassigned to DR.

After    reassignment,      Csicsmann        retained   the    same   level    of

compensation, bonus eligibility, health care, and pension benefits.

However, Csicsmann presents evidence that his role in DR was much

narrower in scope than his role as SGM.                 It is undisputed that

Csicsmann was no longer responsible for overseeing a departmental

budget, he had no purchasing authority, he had less contact with

the finance department, and had no role in the company’s Sarbanes-

Oxley compliance. Appellees similarly concede that Csicsmann no

longer managed or supervised anyone.

     Csicsmann asserts that the DR job was a “made-up job with no

real responsibilities associated with it.”                    More importantly,

Csicsmann contends that reassignment to the DR position was more

akin to a demotion than reinstatement to an equivalent position as

prescribed by the FMLA.       In addition to the differences in actual

duties   already   noted,    viewed     in    the   light   most   favorable   to

Csicsmann, the following facts tend to support Appellant’s claim:

1) the DR position was never advertised or posted; 2) the new

position had no “Job Description” or identifiable duties; 3)

historically, DR as a whole was underfunded and had experienced

little success; 4) the decision to reassign Csicsmann to DR was a

last-minute decision; 5) Csicsmann had no DR job assignments for

approximately 2 weeks following the reassignment; and 6)the DR


                                      16
position did not require the skill or effort that the SGM position

required.

     In addition, the loss of supervisory or managerial authority

cannot   neatly    be    classified    as   de   minimis,    intangible,   or

unmeasurable.      The     loss       of    management      or    supervisory

responsibilities affected Csicsmann’s duties in a concrete manner.

Csicsmann no longer had any input regarding hiring or firing

decisions and was not responsible for performing annual employee

evaluations.      Contrast the facts here with those presented in

Montgomery v. Maryland where this court explained that “[t]he

difference between “truly administrative” tasks and “answering the

phone, taking messages, typing simple correspondence, and the like”

is not of sufficient magnitude . . . to constitute an FMLA

violation.” Montgomery v. Maryland, 266 F.3d 334, 341 (4th Cir.

2001)(“Montgomery I”), vacated on other grounds, 535 U.S. 1075

(2002); But see, Montgomery v. Maryland, 72 Fed. Appx. 17, **2

(2003)(unpublished)(although Montgomery I is not binding, “we are

persuaded that our reasoning remains valid”)(“Montgomery II”).

Relief from all supervisory duties would seem to be of greater

import   than   the     purported   differences    in    duties   previously

addressed by this Circuit.

     Csicsmann also became one step removed from his pre-leave

corporate hierarchal status.        Piscottia, formerly Csicsmann’s peer

in terms of hierarchy of management, avers that he did not consider


                                       17
Csicsmann’s transfer to be a lateral move.              Likewise, Carl Warner,

Csicsmann’s     former     supervisor,    was   under    the    impression   that

Csicsmann would be heading up the DR project and that Piscottia

would be reporting to Csicsmann rather than the other way around.

Warner testified via deposition that he would not consider it a

lateral move for Csicsmann to begin reporting to Piscottia. Warner

also testified that he had concerns that Csicsmann would quit

rather than accept the DR position. Warner’s testimony tends to

show that a reasonable jury could find that the DR position was not

equivalent to the SGM position. At minimum, this evidence creates

a triable jury issue regarding the equivalency of the DR position.

      Moreover, Yashenko does not govern Csicsmann’s entitlement

claim.    Yashenko, 446 F.3d at 546-550(“[T]he FMLA provides no

absolute right to restoration to a prior employment position.”) In

Yashenko, this court was not asked to consider the equivalency of

a post-leave reassignment because the plaintiff-employee did not

pursue any of the then vacant positions after his previous position

was eliminated.       Yashenko, 446 F.3d at 550.               As a result, the

court’s analysis focused on whether, and under what circumstances,

an   employee   may   be    entitled     to   return    to   the   same   position

following FMLA leave. Id.              The Court also found, based upon

undisputed evidence, that the plaintiff-employee would have been

discharged even if he had not taken FMLA leave. Id., at 550. Thus,

Yashenko can be distinguished on multiple grounds.


                                         18
     Finally, the fact that Csicsmann’s compensation and benefits

remained the same is not necessarily determinative.      Given the

objectives of the FMLA,“the restoration of salary, title, and

benefits does not necessarily constitute restoration to the same

position within the meaning of 29 U.S.C. §2614(a)(1)(A) when the

job duties and essential functions of the newly assigned position

are materially different from those of the employee’s pre-leave

position.”   Cooper v. Olin Corp., Winchester, 246 F.3d 1083, 1090-

92 (8th Cir.2001)(summary judgment improper on FMLA entitlement

claim where locomotive engineer was restored to position with same

job title, classification, pay, and benefits but limited to office

/ clerical duties).

     For these reasons, I would      REVERSE and REMAND on the FMLA

entitlement claim only, finding that genuine issues of material

fact preclude judgment as a matter of law.




                                19
