25 Fla. L. Weekly Fed. C263a
Medical Leave Act — Equal Pay Act — COBRA — Action alleging former employer
interfered with plaintiff’s right to take parental leave by forcing her to work
from home immediately after she gave birth; discriminated against her on basis
of gender by altering her job title and responsibilities, withholding annual
bonus, and terminating her employment; retaliated against her for complaining
about gender and race discrimination in workplace; paid her less than male
employees doing same work; and failed to provide notice of plaintiff’s right to
continuation of dental insurance following her termination, in violation of
Consolidated Omnibus Budget Reconciliation Act — No error in entering summary
judgment in favor of employer on Title VII discrimination and Equal Pay Act
claims — No abuse of discretion in assessing statutory COBRA penalty of $75 a
day against former employer — Error to dismiss FMLA interference claim on
summary judgment based solely on conclusion that plaintiff had suffered no
“legal damages” because she was paid for her work — FMLA provides for both
legal and equitable relief, and although plaintiff requested several forms of
equitable relief in her complaint, neither magistrate judge nor district court
considered availability of such relief — In addition to question whether
employer interfered with plaintiff’s FMLA rights, there were other unresolved
issues of material fact requiring trial, such as whether plaintiff was
prejudiced by any FMLA interference — Attorney’s fees — Fee-shifting provision
of Employee Retirement Income Security Act, 29 U.S.C. § 1132(g)(1), which
applied to plaintiff’s COBRA claim, provides for recovery of reasonable
attorney’s fees as well as costs of action — Definition of costs under section
1920 is not controlling — Reasonable litigation expenses such as mediation,
legal research, postage, and travel may be recovered under section 1132(g)(1) if
it is the prevailing practice in the legal community to bill fee-paying clients
separately for those expenses — Remand for consideration of prevailing practice
in local community and reasonableness of mediation, legal research, postage, and
travel expenses requested by plaintiff, but excluded by district court from fees
and costs award
Defendant-Appellee Cross Appellant. 11th Circuit. Case No. 13-10054. August 8,
2014. Appeals from the U.S. District Court for the Northern District of Alabama
by Tondalaya Evans (“Evans” or “Appellant”) against her employer,
Books-A-Million (“Books-A-Million” or “Appellee”), a national book retailer,
alleging violations of the Family and Medical Leave Act (“FMLA”), the Equal Pay
Act, Title VII of the Civil Rights Act of 1964 (“Title VII”), and the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”). Evans complained in
the district court that Books-A-Million (1) interfered with her right to take
parental leave by forcing her to work from home immediately after she gave birth
on August 30, 2006; (2) discriminated against her on the basis of gender by
altering her job title and responsibilities, withholding her annual bonus, and
ultimately terminating her employment; (3) retaliated against her for
complaining about gender and race discrimination in the workplace; (4) paid her
less than male employees doing the same work as she did; and (5) failed to
provide her with notice of her right to continuation of her dental insurance
following her termination.
all of Evans’ claims except her claim under COBRA. And, following a bench trial
of Evans’ COBRA claim, the district court concluded that Books-A-Million had
intentionally violated COBRA and assessed a statutory penalty against
Books-A-Million of $75 per day. The court also awarded Evans attorneys’ fees
totaling $42,192.58 and costs totaling $2,910.87 for the COBRA violation.
judgment and from the district court’s exclusion of litigation expenses (in the
total amount of $2,460.67) from its post-trial award of attorneys’ fees.
Books-A-Million cross-appeals from the district court’s finding of an
intentional COBRA violation by Books-A-Million and from the district court’s
assessment of a COBRA penalty.
awarded summary judgment to Books-A-Million with respect to Evans’ claims under
Title VII and the Equal Pay Act, and did not abuse its discretion by assessing a
statutory COBRA penalty against Books-A-Million. We also hold that the district
court erred by dismissing Evans’ FMLA claim and by refusing to consider her
additional litigation-related expenses of $2,460.67 as part of an attorneys’ fee
award. Accordingly, we AFFIRM in part, and VACATE and REMAND in part, the
judgment of the district court.
v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) [17 Fla. L.
Weekly Fed. C1021a] (summary judgment); United States v. Cadillac Overall
Supply Co., 568 F.2d 1078, 1084 (5th Cir. 1978) (bench trial).
initially as a staff accountant and, later, as Payroll and Insurance Manager.
Books-A-Million paid Evans a salary of $54,500, with the opportunity for an
annual cash bonus. Evans’ supervisor was Books-A-Million’s Director of Finance,
Sandi Meeks (“Meeks”).
time, Evans was involved in the implementation of a new payroll system (“ADP
system”), which was anticipated to “go live” by August 2006. In June 2006, she
approached Meeks to discuss the necessary paperwork for her FMLA maternity
leave, which Evans had intended to become effective on her due date, September
1, 2006. Meeks told Evans that she and other Books-A-Million supervisors had
decided that Evans “would not go on leave but would work while on maternity
leave.” Evans was given a new laptop computer that would enable her to work from
home after her delivery.
after the birth of her child, Meeks repeatedly told Evans that she “really
needed” Evans to continue to work on the ADP system, the “go live” date for
which had, in mid-August, been delayed to November 2006. Meeks also told Evans
that the (successful) implementation of the ADP system would account for fifty
percent of Evans’ annual bonus. Given Meeks’ insistence, Evans felt she had “no
choice” but to continue to work from home after the birth of her child.
2006. She gave birth the next day. Upon arriving home from the hospital with her
newborn on Friday, September 1, 2006, Evans immediately began answering
work-related calls from Books-A-Million employees. She worked throughout the
weekend and thereafter. On Monday, September 4, 2006, Meeks began emailing to
Evans additional work assignments. And, from September 1 until October 31, 2006,
Evans was required to work nearly full-time from home, on some occasions for
more than eight hours per day. During this period, Meeks also required Evans to
attend meetings regarding the ADP system at Books-A-Million’s offices. Evans was
paid her full salary while she worked from home.
disappointment with the progress being made implementing the ADP system. For
example, on October 19, 2006, Meeks told Evans that “[w]e are unacceptably
behind in this project, and this needs to be completed.” On another occasion in
October 2006, Meeks became angry and hostile when Evans informed her that she
did not have time to work on an additional payroll project. Prior to October
2006, Evans had never received any negative evaluations or “write-ups.”
Ultimately, the ADP system went “live” on January 2, 2007, and was a success.
week and a half earlier than she had originally planned. Upon Evans’ return,
Meeks’ attitude toward her was cold and hostile. In November 2006, Meeks and
Books-A-Million’s Chief Financial Officer, Doug Markham, determined to reassign
Evans from her position as Payroll and Insurance Manager to a newly-created
position, Risk Manager, which at the time, though it did not have
clearly-defined responsibilities, did not include payroll duties. Unbeknownst to
Evans, Books-A-Million had advertised the new position of Payroll Manager and
met with candidates for this position, which included all of Evans’
and asked Meeks for an explanation. Meeks told Evans that Books-A-Million was
looking for a Payroll Manager because “she wasn’t pleased with the ADP
implementation.” Evans responded that the ADP implementation occurred in
substantial part while she was at home with her newborn.
accumulated ten years of experience in payroll management and wanted to have a
career in that field. By contrast, Evans had no experience in risk management.
Evans was also told by Meeks that her responsibilities as Risk Manager would
include travel, which Evans viewed as incompatible with the care of her newborn
to the Risk Manager position. On March 26, Evans spoke with Books-A-Million
officers Doug Markham and Chad Tice, and told them that she was not interested
in becoming Risk Manager and that she wanted to retain her payroll
responsibilities. Evans spoke again with Markham and Tice the following day, and
(again) voiced her opposition to the Risk Manager position. Markham and Tice
informed Evans that her choice was either to accept the Risk Manager position or
to resign. Evans did not accept the Risk Manager position, and she was
terminated by Books-A-Million on March 27, 2007.
eligible for a year-end bonus (for 2006). The reason given was that, in order to
be eligible for the bonus, an employee had to have been employed on the date the
Company’s Audit Committee voted to approve the Company’s annual financial
statements. Further, the Audit Committee met to approve the annual financial
statements for fiscal year 2006 on March 29, 2007, two days after Evans
was terminated. Following her termination, Evans did not receive a COBRA notice
relating to continuation of her dental insurance.
dismissal of all of Evans’ claims except her claim under COBRA. On April 6,
2010, the magistrate judge issued a Report and Recommendation, recommending that
the district court grant Books-A-Million’s motion in its entirety. The
magistrate judge concluded that Evans’ FMLA claim should be dismissed because
Evans was paid her full salary while she worked from home, and, therefore, she
“has not established that she suffered any legal damages.”1 In an eight-page Memorandum Opinion, dated
September 22, 2010, the district court adopted the magistrate judge’s Report and
Recommendation in its entirety.2
district court, in a Memorandum Opinion dated October 29, 2012, concluded that
Books-A-Million had intentionally violated Evans’ COBRA rights by failing to
send Evans the required notice relating to her dental insurance. Exercising its
discretion under 29 U.S.C. § 1132(c)(1), the district court assessed a statutory
penalty of $75 per day against Books-A-Million for its intentional COBRA
violation, covering the period May 11, 2007 to September 7, 2008. The district
court also awarded Evans attorneys’ fees of $42,192.58 and costs of $2,910.87
under 29 U.S.C. § 1132(g)(1). It disallowed expenses Evans incurred totaling
$2,460.67 for legal research, court-ordered mediation, postage and travel, on
the grounds that such expenses are not recoverable under 28 U.S.C. § 1920.
abused its discretion in striking certain portions of her summary judgment
affidavit; (2) whether the district court erred in dismissing her FMLA claim;
(3) whether the district court erred in dismissing her Equal Pay Act claim; (4)
whether the district court erred in dismissing her Title VII discrimination and
retaliation claims; and (5) whether the district court abused its discretion in
excluding $2,460.67 from COBRA-related attorneys’ fees.
clearly erred in finding an intentional COBRA violation; and (2) the district
court’s assessment of a $75 per day COBRA penalty was an abuse of discretion.
drawing all inferences in favor of the non-moving party. Fisher v. State
Mut. Ins. Co., 290 F.3d 1256, 1259-60 (11th Cir. 2002). “Genuine disputes
[of material fact] are those in which the evidence is such that a reasonable
jury could return a verdict for the non-movant. For factual issues to be
considered genuine, they must have a real basis in the record.” Mize v.
Jefferson City Bd. Of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
(1) Evans’ Affidavit Testimony
court’s decision to strike affidavit testimony on summary judgment. Hall
v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir. 2004) [17 Fla.
L. Weekly Fed. C489a].
portions of her summary judgment affidavit which stated: (1) “Males with less
experience in the finance department of the company that were managing only one
department were making more money than me.”; (2) “[Male employees] were able to
advance more quickly financially [than] I was.”; and (3) “Dickson could not
perform his job and had duties taken away from him and suffered no cut in his
pay or bonus.”
statements were conclusory and speculative. Evans’ affidavit did not provide
specific, supporting facts regarding, for example, the amount of other
employees’ salaries compared to hers, the details of other employees’ financial
advancement, or Mr. Dickson’s job performance, duties and evaluations. See
Rogers v. Evans, 792 F.2d 1052, 1062 n.9 (11th Cir. 1986) (concluding that
the district court properly granted a motion to strike an affidavit where the
statements in the affidavit were “phrased in conclusory terms without citing
facts”). We affirm the district court’s ruling on this issue.
(2) FMLA Interference Claim
needs of families” and “to promote the stability and economic security of
families.” 29 U.S.C. § 2601(b)(1). The FMLA requires employers to provide
eligible employees with up to twelve weeks of unpaid leave to care for a newborn
child. See 29 U.S.C. § 2612. It is unlawful “for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise,”
FMLA rights. 29 U.S.C. § 2615(a)(1); Pereda
v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 1273-74
(11th Cir. 2012) [23 Fla. L. Weekly Fed. C688a].
benefit to which [she] was entitled under the FMLA,” Martin
v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir. 2008) [21
Fla. L. Weekly Fed. C1132a], and that she “has been prejudiced by the violation
in some way.” Ragsdale
v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) [15 Fla. L. Weekly
Fed. S151a]; see McFadden v. Ballard Spahr Andrews & Ingersoll, LLP,
611 F.3d 1, 7 (D.C. Cir. 2010) (“[Plaintiff’s] burden is to show both that
her employer interfered with . . . the exercise of or the attempt to exercise,
any right provided by the FMLA . . . and that she was prejudiced thereby.”
(internal citation and punctuation omitted)).
judgment was unrelated to whether Books-A-Million had, in fact, interfered with
Evans’ maternity leave. Rather, the denial of Evans’ claim was based solely upon
the conclusion (initially reached by the magistrate judge) that Evans had
suffered no “legal damages” because she was paid for her work: “Because the
plaintiff cannot establish that she suffered any loss of income as a result of
BAM’s interference with her FMLA leave, she cannot state an FMLA
“[b]ecause the plaintiff cannot establish that she suffered any loss of income .
. . she cannot state an FMLA claim” was error. The FMLA provides explicitly for
two (distinct) categories of remedies: (1) “damages,” including compensation,
benefits, and other monetary losses sustained by reason of the violation, §
2617(a)(1)(A); and (2) “such equitable relief as may be appropriate,
including employment, reinstatement, and promotion.” 29 U.S.C. §
2617(a)(1)(B) (emphasis added). While the appropriateness of a particular
equitable remedy is “left to the trial court’s discretion,” Demers v. Adams
Homes of Northwest Fla., Inc., 321 F. App’x. 847, 849 (11th Cir. 2009), the
court must consider the individual facts and circumstances of a plaintiff’s
case, and must not refuse even to consider equitable relief. See Ragsdale,
535 U.S. at 89; Bryant
v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1297 (11th Cir. 2013) [24
Fla. L. Weekly Fed. C849a]. Moreover, “[i]f a trial court refuses to grant
further legal or equitable relief to a plaintiff who insists that such relief is
necessary to make the plaintiff whole, it must articulate its rationale.”
Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1052 (11th Cir.
1989). In this case, although Evans requested several forms of equitable relief
in her complaint, the magistrate judge and the district court failed to consider
the availability of such relief, and appear to have ignored 29 U.S.C. §
damages for unpaid salary, Evans could not state an FMLA claim given this
Court’s unpublished decision in Demers. But Demers does not hold
that an FMLA plaintiff must demonstrate that she is entitled to traditional
damages (as opposed to equitable relief) to survive summary judgment. Such a
requirement would render meaningless the plain language of the FMLA, which makes
clear that equitable relief may be available, separate and apart from legal
damages. 29 U.S.C. § 2617(a)(1)(B). In Demers, we held (only) that the
plaintiff failed “to articulate any harm suffered” from the denial of his FMLA
rights, Demers, 321 F. App’x at 849, relying upon the Supreme Court’s
language in Ragsdale, that an FMLA plaintiff must show that she “has been
prejudiced by the violation in some way.” Ragsdale, 535 U.S. at 89. The
Supreme Court in Ragsdale did not suggest, much less conclude, that
“prejudice” in the FMLA context is synonymous with “legal damages.”
FMLA violation, a plaintiff such as Evans need only demonstrate some harm
remediable by either “damages” or “equitable relief.” See id. (“The
remedy is tailored to the harm suffered.”); Anderson v. Discovery Cmmc’ns.,
LLC, 517 F. App’x 190, 198 (4th Cir. 2013) (“Such prejudice can be proven by
showing that the employee . . . suffers some loss in employment status
remediable through ‘appropriate’ equitable relief . . . .”).
FMLA rights, there are other unresolved issues of material fact requiring a
trial, such as whether Evans was “prejudiced” by any FMLA interference. Based
upon the evidence adduced on summary judgment, a reasonable fact finder could
conclude that Meeks emphasized Evans’ job performance while she was home with
her newborn in deciding to reassign her to an inferior position with fewer
responsibilities and opportunities for advancement.5 It seems plain to us that if an employer coerces an
employee to work during her intended FMLA leave period and, subsequently,
reassigns her based upon her allegedly poor performance during that period, the
employee may well have been harmed by the employer’s FMLA violation.6
by reinstatement. See 29 U.S.C. § 2617(a)(1)(B). The district court may
also consider the equitable remedy of “front pay” for an appropriate period if
it determines that reinstatement is not viable in this case. Dollar v.
Smithway Motor Xpress, Inc., 710 F.3d 798, 810-11 (8th Cir. 2013) (front pay
is an equitable remedy under the FMLA); Weatherly v. Alabama State
University, 728 F.3d 1263, 1271 (11th Cir. 2013) (“In deciding whether to
award front pay, rather than reinstatement, courts look to whether discord and
antagonism between the parties would render reinstatement ineffective as a
(3) Title VII Claims
Evans had to show that (1) she is a member of a protected class; (2) she was
subjected to an adverse employment action; (3) her employer treated similarly
situated employees not of the protected class more favorably; and (4) she was
qualified for the job. See Rice-Lamar v. City of Ft. Lauderdale, Fla.,
232 F.3d 836, 842-43 (11th Cir. 2000).
prima facie case of gender discrimination with respect to her termination
and reassignment because she failed to identify any male employee(s) who
rejected a reassignment and who were treated differently than she was. See
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). (“To make a
comparison of the plaintiff’s treatment to that of [male] employees, the
plaintiff must show that [s]he and the employees are similarly situated in all
relevant respects.”). Evans similarly failed to identify any male comparator(s)
who were not reassigned.7
Title VII. To demonstrate a prima facie case of retaliation, Evans must
show that (1) she participated in a statutorily protected activity; (2) she
suffered a materially adverse employment action; and (3) there is a causal
connection between the two. Butler v. Ala. Dept. of Transp., 536 F.3d
1209, 1212-13 (11th Cir. 2008). Evans failed to demonstrate that she engaged in
any “protected activity” prior to her termination.
(4) Equal Pay Act Claim
have shown that she “performed substantially similar work for less pay” than her
male colleague(s), Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d
1518, 1526 (11th Cir. 1992), i.e., whose job(s) involved “equal work” and
required “equal skill, effort and responsibility.” Id.
respect to the three male division heads within Books-A-Million’s Finance
Department, Evans has not shown that their positions involved “equal work” or
required “equal skill, effort and responsibility.” See Waters v. Turner, Wood
& Smith Ins. Agency, Inc., 874 F.2d 797, 799-800 (11th Cir. 1989)
(plaintiff failed to make a prima facie case of unequal pay because the
job responsibilities of the male comparators were greater than her job
responsibilities). With respect to Robert Altheide, who was hired as
Books-A-Million’s Risk Manager when Evans turned down the job, Evans cannot show
similarity of work because she never worked as Risk Manager. See id.
(5) Attorneys’ Fees
Evans’ COBRA claim, provides for the recovery of “a reasonable attorney’s fee”
as well as the “costs of action.” As noted above, following a bench trial, the
district court awarded Evans her attorney’s fees plus $2,910.87 in costs, but it
excluded additional expenses claimed by Evans totaling $2,460.67 (for mediation,
legal research, postage and travel) on the grounds that these expenses “should
be analyzed under [28 U.S.C.] § 1920” and are not recoverable as costs under
that statute. The question raised and briefed by the parties on appeal is
whether these additional expenses, which the parties agree are not taxable as
costs under § 1920, may nonetheless be awarded as attorneys’ fees under 29
U.S.C. § 1132(g)(1). This appears to be a question of first impression.
consistently with similar language in other fee-shifting statutes. See Murphy
v. Reliance Standard Life Ins. Co., 247 F.3d 1313, 1315 (11th Cir. 2001)
[14 Fla. L. Weekly Fed. C647a]. And, this Court has held that under 42 U.S.C. §
1988 — which, like § 1132(g)(1), allows for a “reasonable attorney’s fee” — a
party may recover “all reasonable expenses incurred in case preparation, during
the course of litigation, or as an aspect of settlement of the case.”
A.C.L.U. of Ga. v. Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (quoting
Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983)); see
also Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283
(2d Cir. 1987) (“[A]ttorney’s fees include expenses that are ‘incidental and
necessary’ to the representation, provided they are ‘reasonable.’ ” (quoting
Northcross v. Bd. of Educ., 611 F.2d 624, 639 (6th Cir. 1979), cert.
denied, 447 U.S. 911 (1980))); Planned Parenthood of Cent. N.J. v.
Attorney General of State of N.J., 297 F.3d 253, 267 (3d Cir. 2002)
(“Out-of-pocket expenses are included in the concept of ‘attorneys’ fees’ as
‘incidental and necessary expenses incurred in furnishing effective and
competent representation,’ and thus are authorized by § 1988.”); Associated
Builders & Contractors of La., Inc. v. The Orleans Parish Sch. Bd., 919
F.2d 374, 380 (5th Cir. 1990) (“reasonable attorneys’ fee” under § 1988 includes
“reasonable out-of-pocket expenses . . . normally charged to a fee-paying
client, in the course of providing legal services.”). Indeed, the Supreme Court
has held that fee shifting statutes with language similar to § 1988 should be
interpreted like § 1988. See City of Burlington v. Dague, 505 U.S. 557,
under § 1920 is not controlling and that Evans’ ($2,460.67) expenses for
mediation, legal research, postage and travel may be awarded as attorneys’ fees
if the district court determines they were reasonably incurred in the course of
case preparation, settlement, or litigation. See Missouri v. Jenkins, 491
U.S. 274, 285 (1989) (permitting recovery under § 1988 of cost of services
provided by clerks and paralegals).8 And,
we see no reason to distinguish mediation fees from other expenses which may be
recovered under § 1988. See Barnes, 168 F.3d at 438; see also Hansen
v. Deercreek Plaza, LLC, 420 F. Supp. 2d 1346, 1355 (S.D. Fla. 2006) [19
Fla. L. Weekly Fed. D744a] (“Although mediation fees are not compensable under §
1920, they are compensable litigation expenses under the ADA.”). We therefore
hold that reasonable litigation expenses such as mediation, legal research,
postage, and travel may be recovered under § 1132(g)(1) if it is the prevailing
practice in the legal community to bill fee-paying clients separately for those
expenses. See Jenkins, 491 U.S. at 285-87 & n.9. Because the district
court did not consider the prevailing practice in the local community or the
reasonableness of Evans’ expenses, we remand on this issue.
(6) Intentional COBRA Violation
violated COBRA is reviewed for clear error. Atlanta Journal and Constitution
v. City of Atlanta Dep’t of Aviation, 442 F.3d 1283, 1287 (11th Cir. 2006).
Because the district court based its finding of intent largely upon its
assessment of the credibility of Books-A-Million’s witnesses, and because the
evidence could have been seen in different ways, we find there was no clear
error. “The credibility of a witness is in the province of the factfinder and
this court will not ordinarily review the factfinder’s determination of
credibility.” Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d
1313, 1320 (11th Cir. 2011). Accordingly, we affirm the district court on this
(7) Statutory Penalty
U.S.C. § 1132(c) for abuse of discretion. Curry v. Contract Fabricators Inc.
Profit Sharing Plan, 891 F.2d 842, 847 (11th Cir. 1990). ERISA authorizes
penalties of up to $100 per day for COBRA violations. 29 U.S.C. § 1132(c)(1). In
light of the district court’s finding that Books-A-Million intentionally
violated COBRA, we hold that the court acted within its discretion in awarding a
$75 per day penalty.
judgment with respect to Evans’ Title VII and Equal Pay Act claims, its
post-trial findings of fact, and its assessment of a statutory penalty. We
VACATE the district court’s award of summary judgment with respect to Evans’
FMLA claim and its rejection of additional expenses as attorneys’ fees. We
REMAND the case for further proceedings consistent with this opinion.
District of Florida, sitting by designation.
District of New York, sitting by designation.
that the district court strike certain portions of Evans’ affidavit testimony as
“conclusory and speculative.” (See discussion at pp. 12-13,
brief discussion of Evans’ claims under the Equal Pay Act and Title VII, but did
not analyze Evans’ FMLA claim.
the evidence adduced on summary judgment demonstrated, at the very least, that
Evans’ supervisors discouraged her from taking maternity leave. See 29
C.F.R. § 825.220(b) (“Interfering with the exercise of an employee’s rights
would include, for example, not only refusing to authorize FMLA leave, but
discouraging an employee from using such leave.”).
included “injunctive relief, reinstatement . . . front pay . . . and any and all
such other relief the trier of fact may assess.”
district court’s conclusion that Evans’ reassignment to the Risk Manager
position, which involved the loss of her payroll responsibilities, was not an
adverse employment action. A transfer or reassignment may be adverse “if it
involves a reduction in pay, prestige or responsibility.” Holland
v. Gee, 677 F.3d 1047, 1057 (11th Cir. 2012) [23 Fla. L. Weekly Fed.
C933a] (quoting Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821,
829 (11th Cir. 2000)).
Risk Manager position appears to have been made almost immediately upon her
return to Books-A-Million’s offices, if not earlier. A reasonable fact finder
could conclude that Evans’ reassignment constituted an unlawful act of
interference with her FMLA right to be reinstated to her former position. See
29 U.S.C. § 2614 (a)(1); Strickland v. Water Works & Sewer Bd. of
Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001) (“[A]n employee returning
from covered leave is entitled to be restored to [her] former position or its
rests upon the withholding of an annual bonus, she failed to rebut
Books-A-Million’s explanation that she had to be employed by Books-A-Million on
March 29, 2007, when the Audit Committee approved the company’s 2006 financial
reasonableness standard to travel expenses. See Barnes, 168 F.3d at 439;
Mock v. Bell Helicopter Textron, Inc., 456 F. App’x 799, 802 (11th Cir.
2012). Other circuits have held that reasonable expenses for legal research and
postage may be awarded as attorneys’ fees under § 1988. See United States ex
rel. Evergreen Pipeline Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d
153, 173 (2d Cir. 1996) (computerized research expenses); Abrams v.
Lightolier Inc., 50 F.3d 1204, 1225 (3d Cir. 1995) (reproduction and postage
expenses); Matter of Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir.
1992) (computer-assisted research expenses); Northcross, 611 F.2d at 639
(photocopying, travel, and telephone calls). And, the Ninth Circuit has held
that “reasonable charges for computerized research may be recovered as
‘attorney’s fees’ under § 1132(g)(2)(D) if separate billing for such expenses is
‘the prevailing practice in the local community.’ ” Trustees of Const. Indus.
and Laborers Health and Welfare Trust v. Redland Ins. Co., 460 F.3d 1253,
1259 (9th Cir. 2006) (quoting Jenkins, 491 U.S. at 287).
* * *