                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0311p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                                                -
 EUNICE HUNTER,
                                                -
                             Plaintiff-Appellant,
                                                -
                                                -
                                                    No. 08-4109
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellee. -
 VALLEY VIEW LOCAL SCHOOLS,
                                                -
                                               N
                 Appeal from the United States District Court
                 for the Southern District of Ohio at Dayton.
               No. 06-00207—Thomas M. Rose, District Judge.
                                 Argued: June 18, 2009
                         Decided and Filed: August 26, 2009
                Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Karen T. Dunlevey, BIESER, GREER & LANDIS, Dayton, Ohio, for
Appellant. Lynnette Ballato Dinkler, DINKLER PREGON, Dayton, Ohio, for Appellee.
ON BRIEF: Karen T. Dunlevey, BIESER, GREER & LANDIS, Dayton, Ohio, for
Appellant. Lynnette Ballato Dinkler, Jamey Todd Pregon, DINKLER PREGON, Dayton,
Ohio, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Eunice Hunter appeals
from the district court’s grant of summary judgment in favor of defendant-appellee Valley
View Local Schools (“Valley View”). Hunter, a custodian for Valley View, was injured in
a car accident in 2003. From 2003 to 2005, she took intermittent periods of leave pursuant
to the Family and Medical Leave Act of 1993 (“FMLA”) while she underwent three rounds
of surgery. Soon after Hunter returned to work in August of 2005, Valley View placed her


                                            1
No. 08-4109         Hunter v. Valley View Local Schools                                  Page 2


on involuntary leave. Hunter alleges that Valley View impermissibly considered her use of
FMLA leave in deciding to place her on involuntary leave. The district court granted
summary judgment in favor of Valley View, finding that Valley View would have taken the
same action regardless of Hunter’s FMLA leave. Because there is evidence that the FMLA
leave was a motivating factor in Valley View’s decision, we reverse the grant of summary
judgment.

                                              I.

        Hunter joined Valley View as a substitute custodian in 1996 and became a full-time
night custodian in 1999. As a night custodian, Hunter’s duties included:

        sweeping, mopping floors, waxing, emptying and cleaning waste
        receptacles, trash, and pencil sharpeners, refilling towel and soap dispensers
        in restrooms, and toilet tissue, removing cobwebs, cleaning windows,
        shampooing carpets, dusting, cleaning student desks, polishing furniture,
        lifting/moving furniture, moving boxes, and minor repairs.
Hunter continued to work full-time until June 16, 2003, when she was in a car accident
unrelated to work. The accident caused nerve damage in Hunter’s right hand, arm, and foot,
and her arthritis in her right knee was aggravated. Consequently, Hunter was out of work
for sixty days while she underwent surgery on her right foot. She returned to work on
August 18, 2003, but she was limited to working four hours per day, five days per week.
Hunter resumed full-time work on November 10, 2003, without any formal restrictions. In
the spring of 2004, Hunter’s doctor again placed her on a reduced schedule of twenty hours
per week for thirty days. Hunter then had two separate surgeries, requiring a ninety-day
leave. Hunter returned to work on July 2, 2004, beginning on a reduced schedule and
resuming full-time work after one month. Hunter worked full time from August of 2004
until June of 2005. In June of 2005, Hunter had knee surgery necessitating a forty-five day
leave. Hunter scheduled each of her surgeries in the summer because she “felt it was more
important to be there” when school was in session.

        Hunter returned from her third round of surgery on August 18, 2005, with permanent
restrictions of no lifting, pushing, or pulling more than ten pounds; and no climbing stairs
or ladders. The following month, Valley View superintendent Sherry Parr invited Hunter
to a meeting with herself and her principal, Todd Kozarec. At the meeting, Hunter learned
No. 08-4109         Hunter v. Valley View Local Schools                                Page 3


that she would be placed on involuntary, unpaid leave effective the following month. By
letter dated October 3, 2005, Parr formally told Hunter that “as of October 14, 2005, you are
hereby placed on unpaid medical leave not to exceed one (1) year based on your doctor’s
restrictions limiting your ability to perform your job and excessive absenteeism for the past
four (4) years.”

        On June 8, 2006, Hunter filed a civil action in the Court of Common Pleas of
Montgomery County, Ohio, alleging violation of the FMLA, as well as failure to
accommodate, disability discrimination, and intentional infliction of emotional distress
claims under Ohio law. Valley View removed this action to the United States District Court
for the Southern District of Ohio.

        In October of 2006, Valley View extended Hunter’s involuntary leave for an
additional year. Then, in February of 2007, Hunter’s doctor reviewed a list of her job
responsibilities and indicated that Hunter could perform them, with the exception of climbing
on ladders to change light bulbs. Hunter was allowed to return to Valley View, where she
apparently continues to work.

        Following Hunter’s return to work, Valley View filed its motion for summary
judgment. In opposition, Hunter presented the deposition testimony of Superintendent Parr.
Parr testified that Hunter’s use of FMLA leave was one of two reasons she placed Hunter
on involuntary leave. The district court found that this testimony constituted direct evidence
that Valley View impermissibly considered Hunter’s use of FMLA leave. Nonetheless, the
court concluded that Valley View was entitled to judgment as a matter of law because it
would have placed Hunter on involuntary leave in any event due to Hunter’s permanent
medical restrictions. Accordingly, the court granted summary judgment to Valley View on
Hunter’s FMLA claim, declined to exercise pendant jurisdiction over her state law claims,
and remanded the remaining claims to the Court of Common Pleas. Hunter timely appealed.

                                              II.

        We review a district court’s grant of summary judgment de novo. See Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008). Summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
No. 08-4109          Hunter v. Valley View Local Schools                                   Page 4


there is no genuine issue as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). We must draw all reasonable inferences in favor
of Hunter, the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Crawford v. TRW Auto. U.S. LLC, 560 F.3d 607, 611 (6th Cir. 2009).

                                               III.

        Hunter alleges that Valley View placed her on involuntary leave based on her
exercise of her rights under the FMLA, 29 U.S.C. § 2601 et seq. Valley View responds that
it placed Hunter on involuntary leave because she was unable to perform the functions of her
job and that it would have done so even if she had not taken FMLA leave.

        The FMLA entitles an “eligible employee” to up to twelve weeks of leave per year
if the employee has a “serious health condition” that prevents the employee from performing
                         1
the functions of her job. 29 U.S.C. § 2612(a)(1)(D); Walton v. Ford Motor Co., 424 F.3d
481, 485 (6th Cir. 2005). An employee who utilizes FMLA leave is entitled to be
restored to her position, or an equivalent one, when she returns from the leave. 29
U.S.C. § 2614(a)(1). However, an employee who remains “unable to perform an
essential function of the position” once her FMLA leave ends is not entitled to
restoration or another position. 29 C.F.R. § 825.216(c).

        An employer may not discriminate or retaliate against an employee for taking
FMLA leave. 29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from
“us[ing] the taking of FMLA leave as a negative factor in employment actions.” 29
C.F.R. § 825.220(c); Arban v. West Publ’g Corp., 345 F.3d 390, 403 (6th Cir. 2003).
Employers who violate the FMLA are liable to the employee for damages. 29 U.S.C.
§ 2617(a)(1); see, e.g., Bryant v. Dollar Gen. Corp., 538 F.3d 394, 397 & n.1 (6th Cir.
2008) (noting damages awarded pursuant to 29 U.S.C. § 2617). There are two theories
of recovery under the FMLA: an interference (or entitlement) theory and a retaliation
(or discrimination) theory. See Grace v. USCAR, 521 F.3d 655, 669 (6th Cir. 2008).
Hunter brings this claim under the latter category.


        1
          It is undisputed that Hunter is an “eligible employee” who suffers from a “serious health
condition.”
No. 08-4109           Hunter v. Valley View Local Schools                          Page 5


           We have often relied on Title VII precedent to analyze FMLA retaliation claims.
See, e.g., Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 707 (6th Cir. 2008); see also
Bell v. Prefix, Inc., 321 F. App’x 423, 428 n.2 (6th Cir. 2009) (collecting cases).
Recently, however, the Supreme Court reminded us that its Title VII decisions do not
automatically control the construction of other employment discrimination statutes. See
Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348-49 (2009). The Gross Court noted
that Title VII “explicitly authoriz[es] discrimination claims in which an improper
consideration was ‘a motivating factor’ [among other, permissible factors] for an adverse
employment decision.” Id. at 2349 (citing 42 U.S.C. § 2000e-2(m)). This statutory
authorization forms the basis for the burden-shifting instruction adopted in Price
Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion), and followed by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). See Gross, 129 S. Ct. at 2349. By
contrast, the Court found that the Age Discrimination in Employment Act (“ADEA”)
does not authorize claims in which the adverse employment action was based both on
permissible and impermissible factors. Id. at 2350. Consequently, the Court declined
to apply the Price Waterhouse burden-shifting framework to disparate treatment claims
brought under the ADEA. Id. at 2351. Gross thus requires us to revisit the propriety of
applying Title VII precedent to the FMLA by deciding whether the FMLA, like Title
VII, authorizes claims based on an adverse employment action motivated by both the
employee’s use of FMLA leave and also other, permissible factors. We conclude that
it does.

           We begin by looking at the text of the statute. See Gross, 129 S. Ct. at 2350.
The FMLA provides in relevant part:
No. 08-4109        Hunter v. Valley View Local Schools                              Page 6


       (1) Exercise of rights

       It shall be unlawful for any employer to interfere with, restrain, or deny
       the exercise of or the attempt to exercise, any right provided under this
       subchapter.
       (2) Discrimination

       It shall be unlawful for any employer to discharge or in any other manner
       discriminate against any individual for opposing any practice made
       unlawful by this subchapter.
29 U.S.C. § 2615(a). Congress delegated authority to the Secretary of the Department
of Labor to prescribe regulations to implement the FMLA. See 29 U.S.C. § 2654.
Among those regulations is the following:

       The [FMLA]’s prohibition against “interference” prohibits an employer
       from discriminating or retaliating against an employee or prospective
       employee for having exercised or attempted to exercise FMLA rights.
       For example, if an employee on leave without pay would otherwise be
       entitled to full benefits (other than health benefits), the same benefits
       would be required to be provided to an employee on unpaid FMLA leave.
       By the same token, employers cannot use the taking of FMLA leave as
       a negative factor in employment actions, such as hiring, promotions or
       disciplinary actions; nor can FMLA leave be counted under “no fault”
       attendance policies.
29 C.F.R. § 825.220(c) (emphasis added). Thus, the implementing regulations explicitly
forbid an employer from considering an employee’s use of FMLA leave when making
an employment decision. The phrase “a negative factor” envisions that the challenged
employment decision might also rest on other, permissible factors. Cf. 42 U.S.C.
§ 2000e-2(m) (authorizing claim under Title VII where a protected characteristic such
as race or sex is “a motivating factor” in adverse employment decision); see also Gross,
129 S. Ct. at 2349. We have already held that § 825.220(c) is a reasonable interpretation
of the FMLA entitled to deferential judicial review. See Bryant, 538 F.3d at 401-02. We
therefore conclude that the FMLA, like Title VII, authorizes claims in which an
employer bases an employment decision on both permissible and impermissible factors.

       In light of our reading of the FMLA through the lens provided by Gross, we
continue to find Price Waterhouse’s burden-shifting framework applicable to FMLA
No. 08-4109              Hunter v. Valley View Local Schools                                          Page 7


retaliation claims. Accordingly, if Hunter has presented evidence to establish that Valley
View discriminated against her because of her FMLA leave, then the burden shifts to
Valley View “to prove by a preponderance of the evidence that it would have made the
same decision absent the impermissible motive.” See Daugherty, 544 F.3d at 707
(quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)).2

         In this case, Parr’s deposition testimony provides direct support for Hunter’s
FMLA retaliation claim. Parr testified that she placed Hunter on involuntary leave both
because of Hunter’s “permanent [medical] restrictions” and also because of her
“excessive absenteeism”; that the charge of “excessive absenteeism” was based on a
review of Hunter’s attendance record, which included her FMLA leaves;3 and that “most




         2
           In Daugherty and elsewhere, we mistakenly identified the Price Waterhouse burden-shifting
standard as applicable to all employment discrimination claims based upon direct evidence. See
Daugherty, 544 F.3d at 707. However, the standard depends not on the type of evidence presented (direct
versus circumstantial), but on the type of claim brought (single-motive versus mixed-motive). After Desert
Palace, we have further modified the summary judgment standard applicable to mixed-motive Title VII
claims. See White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008). We need not decide
whether White applies to an FMLA retaliation case, however, because Hunter has produced sufficient
evidence to survive summary judgment even under the more stringent Price Waterhouse burden-shifting
standard.
         3
             In response to questioning by counsel for Hunter, Parr testified:
         A.          Decisions about excessive absenteeism are not based on one year. It is her –
                     it is accumulative [sic].
         Q.          So you looked at all of her FMLA leaves in addition to [her paid time off],
                     correct?
         A.          I looked at her – absentee list. I looked at her attendance report, excuse me,
                     yes.
         Q.          Which includes at least three extended FMLA leaves, correct?
         A.          Yes, it does.
         Q.          Did you count those against her in determining whether her leave was
                     excessive?
         A.          I don’t understand what you mean by did I count it against her.
         Q.          Did you take that into consideration that she missed 12 weeks of leave here
                     and 12 weeks of leave there for FMLA?
         A.          The consideration was based on her attendance report and that’s part of it.
(Parr Dep. 137, Nov. 7, 2007.)
No. 08-4109              Hunter v. Valley View Local Schools                                       Page 8


of” the absences on Hunter’s record were due to FMLA leaves.4 This constitutes direct
evidence of impermissible motive because an employer “cannot use the taking of FMLA
leave as a negative factor in employment actions.” 29 C.F.R. § 825.220(c).

        Because Hunter has presented evidence of improper motive, the burden shifts to
Valley View to prove by a preponderance of the evidence that it would have placed her
on involuntary leave regardless of her use of FMLA leave. See Daugherty, 544 F.3d at
707. Valley View argues that it placed Hunter on involuntary leave because she was
unable to perform the functions of her job. If this argument found support in the record,
it might be sufficient to entitle Valley View to summary judgment. However, the
evidence in the record belies Valley View’s position and shows, instead, that Hunter’s
use of FMLA leave actually motivated Valley View to place her on involuntary leave.
“Under the retaliation theory . . . , the employer’s motive is an integral part of the
analysis” because the FMLA prohibits an employer from taking an adverse action
because of the employee’s utilization of FMLA leave. Edgar v. JAC Prods., Inc., 443
F.3d 501, 508 (6th Cir. 2006) (emphasis omitted); see also Heady v. U.S. Enrichment
Corp., 146 F. App’x 766, 769-70 (6th Cir. 2005) (“To survive summary judgment,
[Hunter] must provide sufficient evidence to show that the exercise of her FMLA rights
was a motivating factor in her [involuntary leave].” (emphasis added) (citing Gibson v.
City of Louisville, 336 F.3d 511, 514 (6th Cir. 2003))). When asked directly whether she
placed Hunter on involuntary leave solely because of her medical restrictions, Parr could




        4
            Parr testified:
        Q.          And Mrs. Hunter along with the other employees in Valley View are given an allotted
                    amount of sick days and vacation time, are they not?
        A.          They are.
        Q.          And the vast majority of the time that Mrs. Hunter missed was because of her
                    FMLA leaves, correct?
        A.          I would say most of it, uh-huh.
(Parr Dep. 30-31.)
No. 08-4109                Hunter v. Valley View Local Schools                                          Page 9


not give a “yes” answer.5 To the contrary, Parr insisted that it was Hunter’s FMLA
leave that caused Parr to take action against Hunter.6 At oral argument, counsel for
Valley View defended this approach, arguing that Valley View was entitled to consider
Hunter’s complete attendance record in making its decision. To the extent that Hunter’s
record reflected her FMLA absences, however, that is precisely what Congress forbade
employers to do when it enacted the FMLA. See Bryant, 538 F.3d at 401.




         5
           The following exchange between counsel for Hunter and Parr illustrates Parr’s stubborn
insistence that Hunter’s FMLA absences were counted against her:
         Q.         Let’s focus on your decision on whether to continue to accommodate her
                    [restrictions] or not. In October of 2005, you chose to stop accommodating her
                    restrictions, correct?
         A.         But it wasn’t that singly.
         Q.         Did you choose in October of 2005 to stop accommodating Mrs. Hunter’s
                    medical restrictions?
         A.         That was not the single reason why she was put on unpaid leave.
         Q.         It’s a yes or no question and you can provide whatever explanation you want
                    but I want you to answer my question. Did you in October of 2005 decide to
                    stop accommodating Mrs. Hunter’s medical restrictions?
         A.         In my opinion, it’s not a yes or no answer because there are two factors that
                    made that decision. One was her permanent restrictions and one was her
                    excessive absenteeism.
(Parr Dep. 27-28.)
         6
             Parr explained that Hunter’s absences inconvenienced Valley View:
         Q.         Up until October of 2005, you testified that you had been accommodating her medical
                    restrictions, correct?
         A.         Yes.
         Q.         And in October of 2005, you chose to put her on leave as opposed to
                    continuing to accommodate those restrictions, correct?
         A.         But it was also because of her excessive absenteeism. Let me explain this a
                    little bit farther [sic] and maybe this will help. I have a responsibility as an
                    employer to make sure that all of the essential functions of all the jobs in our
                    district are fulfilled. Because of Mrs. Hunter’s excessive absenteeism, I was
                    forced–the school district was forced to continue to get substitute help.
                    Substitutes do not have the same training as the rest of our employees, as–as
                    to the daily, weekly, and monthly routine. I have to have somebody who’s at
                    work a majority of the time in order to make sure that all things are done in our
                    district.
(Parr Dep. 29.) Parr stated that Hunter’s attendance had also been a problem prior to the accident. (Id.)
No. 08-4109        Hunter v. Valley View Local Schools                          Page 10


       In sum, Parr’s deposition testimony completely undermines Valley View’s
protestations that no issue of fact remains as to whether it would have made the same
decision regarding Hunter even if she had not taken any FMLA leave and precludes
summary judgment in Valley View’s favor. It remains for the trier of fact to decide
whether, despite the direct evidence of retaliatory motive, Valley View would have taken
the same action against Hunter. See Daugherty, 544 F.3d at 710.

                                            IV.

       For the foregoing reasons, we reverse the grant of summary judgment and
remand this case for further proceedings.
