Lori Hoge v. Honda of America Mfg., Inc.

*The Honorable Robert H. Cleland, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0317P (6th Cir.)
File Name: 04a0317p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LORI HOGE,
Plaintiff-Appellee/
Cross-Appellant,
v.
HONDA OF AMERICA MFG.,
INC.,
Defendant-Appellant/
Cross-Appellee.
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Nos. 03-3452/3477
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00995—Edmund A. Sargus, Jr., District Judge.
Argued: June 16, 2004
Decided and Filed: September 16, 2004
Before: RYAN and COOK, Circuit Judges; CLELAND,
District Judge.*
2 Hoge v. Honda of America Nos. 03-3452/3477
_________________
COUNSEL
ARGUED: Mary Ellen Fairfield, VORYS, SATER,
SEYMOUR & PEASE, Columbus, Ohio, for Appellant.
Gary A. Reeve, REEVE & WATTS, Worthington, Ohio, for
Appellee. ON BRIEF: Mary Ellen Fairfield, VORYS,
SATER, SEYMOUR & PEASE, Columbus, Ohio, for
Appellant. Gary A. Reeve, REEVE & WATTS,
Worthington, Ohio, for Appellee. Joshua J. Morrow,
MARSHALL & MORROW, Columbus, Ohio, for Amicus
Curiae.
_________________
OPINION
_________________
CLELAND, District Judge. This appeal concerns the
timing and nature of an employee’s right to job restoration
under the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2614(a). On February 14, 2002, the United States District
Court for the Southern District of Ohio granted Plaintiff Lori
Hoge partial summary judgment on her claim for relief under
the FMLA. The district court determined that, after Plaintiff
appeared and attempted to return to work on June 27, 2000,
she was entitled to be restored to her former position or an
equivalent position with Defendant Honda of American
Manufacturing, Inc. (“Honda”) by June 28, 2000 because she
was returning from authorized FMLA leave, ruling that
Honda violated the FMLA when it failed to return Plaintiff to
an equivalent position until July 31, 2000. The district court
subsequently awarded Plaintiff monetary damages, attorneys’
fees, and costs.
Defendant appeals, arguing that the FMLA required Honda
to reinstate Plaintiff to her employment position or an
equivalent position only within a reasonable time, not

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Nos. 03-3452/3477 Hoge v. Honda of America 3
immediately, and that there is no issue of fact that Honda did
so in this case. Honda claims that Plaintiff’s physical
limitations, her unanticipated return, and the significant
changes made by Honda to its production processes during a
“model changeover” reasonably prevented Honda from
restoring Plaintiff to work until July 31, 2000.
Plaintiff cross-appeals, challenging three of the district
court’s determinations. First, Plaintiff claims that the lower
court erred in determining that Plaintiff was entitled to be
reinstated under the FMLA, 29 U.S.C. § 2614(a), by June 28,
2000, arguing that Honda should have reinstated her
immediately on June 27, 2000. Second, she challenges the
district court’s determination that she waived her FMLA right
to full restoration by agreeing to a “Gradual Return to Work”
program on July 31, 2000. Third, she appeals the district
court’s decision on her request for liquidated damages.
We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In November 1995, Plaintiff Lori Hoge, a production
associate at Honda’s East Liberty Ohio plant, sustained a back
injury in a non-work related car accident. She was
hospitalized, took an extended leave of absence from her job,
and returned to work in March 1996. Her injury, a fracture of
a lumbar vertebrae, imposed several permanent physical
restrictions on her work activities. Plaintiff’s permanent work
restrictions included: no jumping in or out of cars; no lower
back extensions in excess of fifteen degrees; no lower back
flexion in excess of thirty degrees; no pushing or pulling liner
racks; no lifting of more than fifteen pounds; and a forty-hour
workweek limitation. After her back injury, Hoge returned to
work on the “door line,” a position that accommodated her
physical restrictions. She worked on the door line, taking
intermittent FMLA leave for her back injury, until she took
the approved FMLA leave leading to the instant dispute.
4 Hoge v. Honda of America Nos. 03-3452/3477
On April 20, 2000, Honda approved Hoge’s request for
continuous FMLA leave from May 11 until June 12, 2000 for
abdominal surgery unrelated to her back injury. On or about
June 12, 2000, Hoge telephoned Honda to request an
extension of her FMLA leave, informing Defendant that she
would need additional time to recover from her abdominal
surgery. Although the parties agree that Honda approved two
requested extensions of FMLA leave beyond Plaintiff’s
original June 12 expected return date, they dispute the date of
her anticipated return.
The lower court concluded that “the undisputed evidence
reveals . . . that Plaintiff failed to give any advance notice of
her return so as to allow Defendant time to immediately
locate an equivalent position.” On the other hand, Plaintiff
states that she never requested FMLA beyond June 26 and
that Honda’s documentation shows that her FMLA leave was
twice extended and was scheduled to end on June 26, 2000.
Examining the evidence in the record reveals the existence of
an issue of fact on when Honda expected Plaintiff to return.
The evidence of Hoge’s expected return date is equivocal.
In a letter dated June 28, 2000, Honda approved a continuous
FMLA leave extension “beginning on 6/12/00 and ending on
7/19/00.” The letter stated that Honda “expected [Plaintiff]
to return to work at the beginning of [her] shift on 7/20/00.”
However, in another letter dated June 30, signed by a
different representative of Honda’s Leave Coordination
Department, Mark Lippencott, Honda approved continuous
FMLA leave for Hoge from June 26, 2000 (the day before
Plaintiff attempted to return to work) until July 12, 2000 with
her expected return on July 13, 2000. Mr. Lippencott signed
a third letter sent to Plaintiff, also dated June 30, 2000, which
approved continuous “Medical leave” from July 13 until
December 31, 2000. These documents reveal that Honda
approved (although possibly ex post) Plaintiff’s absence from
work as FMLA leave for the period between June 12 and June
27, 2000 and also suggest that Honda did not expect Plaintiff
to return to work on the morning of June 27. On the other

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Nos. 03-3452/3477 Hoge v. Honda of America 5
hand, Plaintiff’s affidavit states that she did not request
FMLA leave beyond June 26, 2000. Further, a leave of
absence extension request, dated June 19, 2000 and approved
by Honda on June 28, 2000, establishes June 26, 2000 as the
return date for Hoge.
During Hoge’s leave, Honda continued instituting a “new
model changeover” that included multiple engineering and
stylistic changes for the production of its year 2000 models.
The model changeover directly affected Honda’s assembly
department where Hoge worked and was gradually
implemented between February 8 and August 15, 2000.
After obtaining a release from her treating physician, Dr.
Ronald Spier, Plaintiff appeared for work on June 27, 2000,
expecting to return to her door line position. Upon her return,
she presented to Honda’s medical department a “Physician’s
Permit” which stated that she was able to return to her
previous position on the door line. Plaintiff returned with the
same physical restrictions associated with her back injury that
she had before taking leave. She expected to be placed in a
position which accommodated those restrictions. The
medical department contacted Brett Strine, the person
responsible for placing Hoge. Mr. Strine considered possible
placements in light of the ongoing model changeover and
staffing levels, but informed Plaintiff that no positions were
available. Honda then conducted a placement review but did
not find a suitable position for Plaintiff until July 26, 2000.
Hoge eventually returned to a position on the engine line on
July 31, 2000. Honda claims that the delay in finding an
equivalent position was reasonable and was caused by several
factors including Plaintiff’s unexpected return and the time
required to locate an equivalent position to accommodate
Hoge’s physical restrictions in light of the substantial changes
made to its production processes.
Plaintiff’s restoration to a position on the engine line was
accomplished in accordance with a “Gradual Return to Work”
(“GRTW”) program. Under this program, Hoge worked less
6 Hoge v. Honda of America Nos. 03-3452/3477
than full time and her weekly hours increased over six weeks.
Honda did not restore Plaintiff to a full-time work schedule of
forty hours per week until September 18, 2000.
Plaintiff filed a two-count complaint against Honda,
alleging violation of her FMLA rights and wrongful adverse
employment action in violation of Ohio public policy. The
parties voluntarily dismissed the state claim, leaving only the
FMLA interference claim. The parties filed cross-motions for
summary judgement and the district court granted Plaintiff’s
motion in part and denied Defendant’s motion. The district
court ruled that Defendant violated the FMLA, 29 U.S.C.
§§ 2615(a)(1) and 2614(a), by failing to reinstate Plaintiff to
her position on the door line or an equivalent position by June
28, 2000. The district court ruled that Plaintiff had a right to
restoration to her door line position or an equivalent under
29 U.S.C. § 2614(a), notwithstanding the fact that she
continued to have permanent physical restrictions associated
with her back injury. The lower court also found that it was
undisputed that “Defendant had several jobs which Plaintiff
could perform as to all essential functions, since she [was]
currently working in such position and ha[d] been in one or
more of such positions since her return to work on July 31,
2000.” The district court also rejected Defendant’s argument
that 29 U.S.C. § 2614 permits employers a “reasonable time”
to reinstate an eligible employee returning from approved
FMLA leave, concluding that Defendant violated the FMLA
by failing to reinstate Plaintiff to a position by June 28. The
court, however, also dismissed Plaintiff’s argument that she
was entitled to immediate restoration on June 27 because, in
its view, the undisputed evidence revealed that she failed to
give Honda any advance notice of her return. The district
court further ruled that Plaintiff could not recover lost wages
associated with her gradual return to work because Plaintiff’s
physician approved the GRTW program and Plaintiff did not
object. The district court found no evidence that Plaintiff
made any attempt to take advantage of Honda’s policy which
permitted any associate to terminate a gradual return to work

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Nos. 03-3452/3477 Hoge v. Honda of America 7
program and to return to full-time employment with physician
approval.
The court denied Plaintiff’s motion for liquidated damages
under 29 U.S.C. § 2617(a)(1)(A) and granted Plaintiff’s
application for attorneys’ fees and costs under 29 U.S.C.
§ 2617(a)(3). The district court awarded Plaintiff $18,112.50
in attorneys’ fees and $1,244.99 in costs.
II. STANDARD OF REVIEW
We review the district court’s summary judgment
determinations under Federal Rule of Civil Procedure 56 de
novo. Arban v. West Publ’g Corp., 345 F.3d 390, 400 (6th
Cir. 2003). Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law.
Fed. R. Civ. P. 56(c). In addition, “[w]e may affirm a
decision of the district court if correct for any reason,
including one not considered below.” United States Postal
Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 330 F.3d
747, 750 (6th Cir. 2003).
This court reviews an award of liquidated damages under
the FMLA under the same standard used for such
determinations under the Fair Labor Standards Act. Chandler
v. Specialty Tires of Am., 283 F.3d 818, 827 (6th Cir. 2002).
Thus, we review the lower court’s ruling on liquidated
damages for an abuse of discretion. Id.
8 Hoge v. Honda of America Nos. 03-3452/3477
III. DISCUSSION
A. The FMLA
The FMLA entitles an eligible employee to as many as
twelve weeks of leave during any twelve-month period if the
employee has a “serious heath condition that makes the
employee unable to perform the functions of the position of
such employee.” 29 U.S.C. § 2612(a)(1)(D). The statute
defines “serious health condition” as “an illness, injury,
impairment, or physical or mental condition that involves (A)
inpatient care in a hospital, hospice, or residential medical
care facility; or (B) continuing treatment by a health care
provider.” Id. at § 2611(11). An employee seeking to use his
FMLA leave must notify the employer that FMLA-qualifying
leave is needed. Arban., 345 F.3d at 400; Chandler, 283
F.3d at 825; Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th
Cir. 1998). The FMLA also gives the Secretary of Labor
notice and comment rule-making authority and directs the
Secretary to issue regulations “necessary to carry out” the
Act. 29 U.S.C. § 2654; Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 86 (2002).
This court recognizes two distinct theories for recovery
under the FMLA: (1) the “entitlement” or “interference”
theory arising from 29 U.S.C. § 2615(a)(1); and (2) the
“retaliation” or “discrimination” theory arising from
29 U.S.C. § 2615(a)(2). As this court has stated, “[t]he
[FMLA] creates ‘prescriptive and proscriptive employee
rights.’” Taylor v. Union Inst., 30 Fed.Appx. 443, 2002 WL
252443, at *7 (6th Cir. Feb. 19, 2002) (unpublished opinion)
(quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159
(1st Cir. 1998)); see also Arban, 345 F.3d at 400-01.
Plaintiff’s claim rests on the “interference” theory. The
interference provision of the Act, § 2615(a)(1), creates
prescriptive rights. Taylor, 30 Fed.Appx at 452, 2002 WL
252443, at *7. It provides that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or

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Nos. 03-3452/3477 Hoge v. Honda of America 9
the attempt to exercise, any right provided in this subchapter.”
29 U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b). To
prevail on a claim for violation of an employee’s prescriptive
rights under § 2615(a)(1), the plaintiff need not show that he
was treated worse than other employees, just that he was
denied an entitlement under the Act. Taylor, 30 Fed. Appx.
at 452, 2002 WL 252443, at *7. An employer may violate
§ 2615(a)(1) regardless of the intent behind its conduct.
Arban, 345 F.3d at 401; Hodgens, 144 F.3d at 159.
B. Restoration Under 29 U.S.C. § 2614(a)
To prevail on her interference claim under § 2615(a)(1),
Plaintiff must establish that Honda interfered with a FMLA
right to medical leave or to reinstatement following FMLA
leave. Arban, 345 F.3d at 401; see also Cavin v. Honda of
Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003). Hoge must
establish that: (1) she was an eligible employee, (2) Honda is
a covered employer, (3) she was entitled to leave under the
FMLA, (4) she gave Honda notice of her intent to take leave,
and (5) Honda denied her FMLA benefits or interfered with
FMLA rights to which she was entitled. Cavin, 346 F.3d at
719. The parties do not dispute the first four of these
elements; their dispute turns on the fifth. Plaintiff maintains,
and the lower court ruled, that Honda interfered with
Plaintiff’s FMLA rights and entitlement to restoration to her
position on the door line or an equivalent under 29 U.S.C.
§ 2614. Honda maintains that Hoge’s right to restoration
under the Act required it to restore her only within a
reasonable time after she was capable of returning.
The FMLA not only grants the statutory right for an
eligible employee to take up to twelve weeks of leave, but
also creates the concomitant right for an employee who has
taken leave “to be restored by the employer to the position of
employment held by the employee when the leave
commenced.” 29 U.S.C. § 2614(a)(1)(A); Pharakhone v.
Nissan N. Am., Inc., 324 F.3d 405, 407 (6th Cir. 2003).
10 Hoge v. Honda of America Nos. 03-3452/3477
1An “equivalent po sition” under 29 U.S.C. § 2 614 (a)(1)(B) is
one that is virtually identical to the employee's former position
Section 2614(a) describes the FMLA restoration right. It
provides, in relevant part:
(a) Restoration to position
(1) In general
Except as provided in subsection (b) of this section,
any eligible employee who takes leave under section
2612 of this title for the intended purpose of the
leave shall be entitled, on return from such leave--
(A) to be restored by the employer to the position
of employment held by the employee when the
leave commenced; or
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other
terms and conditions of employment.
. . .
(3) Limitations
Nothing in this section shall be construed to entitle
any restored employee to-
. . .
(B) any right, benefit, or position of employment
other than any right, benefit, or position to which the
employee would have been entitled had the
employee not taken the leave.
29 U.S.C. § 2614(a) (emphasis added).1

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Nos. 03-3452/3477 Hoge v. Honda of America 11
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. § 82 5.215(a).
The Secretary of Labor has also promulgated a regulation
describing employee rights on returning from FMLA leave.
29 C.F.R. § 825.214. It provides:
(a) On return from FMLA leave, an employee is entitled
to be returned to the same position the employee held
when leave commenced, or to an equivalent position
with equivalent benefits, pay, and other terms and
conditions of employment. An employee is entitled to
such reinstatement even if the employee has been
replaced or his or her position has been restructured to
accommodate the employee's absence. See also
§ 825.106(e) for the obligations of joint employers.
(b) If the employee is unable to perform an essential
function of the position because of a physical or mental
condition, including the continuation of a serious health
condition, the employee has no right to restoration to
another position under the FMLA. However, the
employer's obligations may be governed by the
Americans with Disabilities Act (ADA). See § 825.702.
Id. (emphases added).
There are a few limitations (sometimes referred to as
exceptions) on an employee’s right to restoration upon timely
return from FMLA leave under § 2614(a). First, the
substantive right is not absolute because the right established
“shall [not] be construed to entitle any restored employee to
. . . any right, benefit, or position of employment other than
any right, benefit, or position to which the employee would
12 Hoge v. Honda of America Nos. 03-3452/3477
have been entitled had the employee not taken the leave.”
29 U.S.C. § 2614(a)(3)(B); 29 C.F.R. § 825.216(a) (“An
employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee
had been continuously employed during the FMLA leave
period.”). An employee returning from FMLA leave is not
entitled to restoration unless he would have continued to be
employed if he had not taken FMLA leave. For instance, an
employer need not restore an employee who would have lost
his job or been laid off even if he had not taken FMLA leave.
See Arban, 345 F.3d at 401; Pharakhone, 324 F.3d at 407;
Chandler, 283 F.3d at 825.
In addition, the right to restoration does not arise unless the
returning employee is able to perform the essential functions
of the position or an equivalent. 29 C.F.R. § 825.214(b) (“If
the employee is unable to perform an essential function of the
position because of a physical or mental condition, including
continuation of a serious health condition, the employee has
no right to restoration to another position under the FMLA.”);
See also Green v. Alcan Aluminum Corp., 198 F.3d 245, 1999
WL 1073686, at *2 (6th Cir. Nov. 16, 1999) (unpublished
opinion) (no FMLA violation when twelve weeks expired and
plaintiff could not perform essential functions); Reynolds v.
Phillips & Temro Indus., Inc., 195 F.3d 411, 414 (8th Cir.
1999) (quoting 29 C.F.R. § 825.214(b)).
Next, the FMLA permits employers to apply a uniform
policy or practice that conditions restoration under § 2614(a)
on the receipt of medical certification from the employee’s
healthcare provider stating that the employee is able to
resume work. 29 U.S.C. § 2614(a)(4). Further, an employer
may delay restoration until an employee submits the required
“fitness-for-duty” certification. 29 C.F.R. §§ 825.310(f),
825.311(c) & 825.312(c). However, the regulations permit an
employer to seek such a fitness-for-duty certification “only
with regard to the particular health condition that caused the
employee’s need for FMLA leave.” 29 C.F.R. § 825.310(c).

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Nos. 03-3452/3477 Hoge v. Honda of America 13
None of these limitations to Hoge’s right to restoration
apply. Honda does not dispute Plaintiff’s right to restoration
or argue that any of the above limitations apply. Rather,
Honda disputes the timing of its duty to restore Hoge to an
equivalent position, arguing that the terms and structure of the
FMLA required it to restore Hoge to an equivalent position
only within a reasonable time after learning of her readiness
to work under the circumstances in her case. Honda asks this
Court to reverse the district court’s ruling and enter summary
judgment on its behalf because there is no genuine issue of
fact that Honda complied with the FMLA’s requirement to
restore Plaintiff within a reasonable time after learning she
was ready to return to work. It argues that the FMLA should
be read in pari materia with the Americans With Disabilities
Act (“ADA”) and that employers must be afforded a
reasonable amount of time to evaluate whether an employee
is disabled, to identify reasonable accommodations, and to
minimize potential liability under other federal and state laws.
In short, Honda asks this court to read a reasonableness
element into the timing of when a returning employee is
entitled to restoration under 29 U.S.C. § 2614(a) where such
an element does not exist in the text.
We decline Honda’s invitation. “The starting point in
interpreting a statute is its language, for ‘[i]f the intent of
Congress is clear, that is the end of the matter.’" Good
Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)
(quoting Chevron U.S.A. Inc. v. Natural Res. Defense
Council, Inc., 467 U.S. 837, 842 (1984)). If clear, the plain
meaning of the statutory language controls; departure from
the plain language of a statute is appropriate only in “‘rare
cases [in which] the literal application of a statute will
produce a result demonstrably at odds with the intentions of
its drafter . . . or when the statutory language is ambiguous.’”
Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 842
(6th Cir. 1994) (citation omitted). Moreover, “we ordinarily
resist reading words or elements into a statute that do not
appear on its face.” Bates v. United States, 522 U.S. 23, 29
(1997). In fact, courts have a duty to refrain from reading a
14 Hoge v. Honda of America Nos. 03-3452/3477
phrase into a statute when Congress has left it out. Keene
Corp. v. United States, 508 U.S. 200, 208 (1993); United
States v. Health Possibilities, P.S.C., 207 F.3d 335, 339-40
(6th Cir. 2000). As we have stated before: “‘It is not the
Court’s role to address perceived inadequacies in [a statute].’”
In re Aberl, 78 F.3d 241, 244 (6th Cir. 1996) (quoting Wolf
Creek Collieries v. Robinson, 872 F.2d 1264, 1269 (6th Cir.
1989) (alteration in original)).
The FMLA’s text, set forth in more detail above, provides
that an employee returning from FMLA leave “shall be
entitled, on return from such leave – . . . to be restored by the
employer” to his prior position or an equivalent position with
the same conditions of employment. 29 U.S.C. § 2614(a).
The plain meaning of “on return from such leave” is not
ambiguous and, contrary to Honda’s argument, will not be
construed to mean “within a reasonable time after the
employee is able to return from such leave.” If an employee
returning from FMLA leave can perform the essential
functions of his previous or an equivalent position, the right
to restoration is triggered on the employee’s timely return
from leave. 29 U.S.C. § 2614(a); 29 C.F.R. § 825.214(b). If
Congress had intended to permit employers to restore
employees within a reasonable time after their need for
FMLA leave had ended, it would have so stated. See
42 U.S.C. § 12112(b)(5)(A) (discrimination under the ADA
includes “not making reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability”). The text of the
FMLA makes restoration required once an employee’s
entitlement arises (i.e., once he is capable of performing the
job’s essential functions). It also provides an employer the
ability to condition restoration upon medical certification that
the employee is able to return to work. The clear import of
this language requires restoration upon return, unless one of
the specific limitations or exceptions apply. See Chandler,
283 F.3d at 825 (“With exceptions not at issue here, an
employer is obliged to restore the employee to her prior
position or an equivalent position upon return from leave.”).

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Nos. 03-3452/3477 Hoge v. Honda of America 15
Moreover, because “[a]n employee may not be required to
take more leave than necessary to address the circumstances
for which leave was taken,” an employer would violate the
FMLA’s prohibition against interfering with FMLA rights if
it decided to extend an employee’s leave anytime such an
extension would be “reasonable” under the circumstances.
29 C.F.R. § 825.312(e); 29 U.S.C. § 2615(a)(1).
Although the FMLA does not define the time when an
employee’s “return” from FMLA leave becomes effective,
thus triggering an employer’s duty to restore a returning
employee, the FMLA’s regulatory scheme specifically
contemplates circumstances where the date of an employee’s
return from FMLA leave may change. Ordinarily, the
employer and employee will communicate and establish the
return date for an employee taking FMLA leave. In such
cases, the timing of the employee’s “return” will not be at
issue and the restoration entitlement will arise when the
employee returns in a timely manner and in a physical
condition to perform the essential functions of the position he
left, and after providing the medical certification if required
by an employer under 29 U.S.C. § 2614(a)(4). In fact,
29 C.F.R. § 825.309 facilitates communications regarding the
return date for an employee on FMLA leave by permitting an
employer to “require an employee on FMLA leave to report
periodically on the employee’s status and intent to return to
work.”
Moreover, the FMLA regulations specifically address
circumstances in which an employee needs to use more or
less FMLA leave time than originally anticipated. In such
cases, employers are entitled to reasonable notice of an
employee’s return.
It may be necessary for an employee to take more leave
than originally anticipated. Conversely, an employee
may discover after beginning leave that the
circumstances have changed and the amount of leave
originally anticipated is no longer necessary. An
16 Hoge v. Honda of America Nos. 03-3452/3477
employee may not be required to take more FMLA leave
than necessary to resolve the circumstance that
precipitated the need for leave. In both of these
situations, the employer may require that the employee
provide the employer reasonable notice (i.e., within two
business days) of the changed circumstance where
foreseeable. The employer may also obtain information
on such changed circumstances through requested status
reports.
29 C.F.R. § 825.309(c) (emphasis added). Section 825.312(e)
of the Department of Labor’s FMLA regulations further
provides: “If the employee is able to return to work earlier
than anticipated, the employee shall provide the employer two
business days notice where feasible; the employer is required
to restore the employee once such notice is given.” 29 C.F.R.
§ 825.312(e).
In this case, Hoge was originally expected to return from
her abdominal surgery leave on June 12, 2000. As of that
date, Honda would have been aware that it would be required
to restore her to work. It is undisputed, however, that Hoge
requested an extension of her FMLA leave beyond June 12.
The record does not establish her new expected return date
and the parties dispute whether Honda had reason to expect
her return on the morning of June 27. If her early return from
approved leave was not anticipated, then the regulations
governing an employee’s early return from FMLA leave
apply. Under 29 C.F.R. §§ 825.309(c) and 825.312(e),
Plaintiff was required to provide Honda reasonable notice
(i.e., two business days) that she would be returning sooner
than expected. Thus, by showing up for work at the
beginning of the work day, Hoge put Honda on reasonable
notice that she was ready and capable of returning to the
position that she left (with the accommodation of her physical
limitations associated with her back injury) or its equivalent.
If Honda did not have reasonable notice of Hoge’s return
date, it was not required to permit Plaintiff to return to work

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Nos. 03-3452/3477 Hoge v. Honda of America 17
until June 29, 2000, two business days after receiving notice
of her willingness and ability to return to work. Conversely,
if Honda did have reasonable notice that Hoge’s extension of
FMLA leave was to end on June 26, 2000, it was required to
restore her to a door line position or an equivalent on June 27,
2000 because it does not dispute that Hoge was capable of
performing the essential functions of such a position.
Honda argues that the FMLA has no time limit on when
restoration must occur and that restoration of an employee
need only be reasonable under the circumstances. Honda
claims that an “immediate restoration” rule is not required by
the text of § 2614(a) because it is silent as to the timing of
when an employer must restore an employee returning from
FMLA leave. It argues that the flexible process contemplated
by the statutory structure mandates that the court impart a
reasonableness element to an employer’s duty to restore an
employee under § 2614(a). Honda also argues that the FMLA
should be read in pari materia with the ADA and that failing
to read a reasonableness requirement into an employer’s duty
to restore an employee under § 2614(a) would expose
employers to potential ADA and state law liability. We are
not persuaded.
As discussed above, the language found in § 2614(a) is not
ambiguous. Additionally, the structure of the FMLA does not
require the court to read a reasonableness element into the
restoration provision. The provision permitting an employer
the opportunity to restore an employee to the same position or
an equivalent does not express clear Congressional intent to
permit employers a reasonable time to delay restoration. The
“equivalent position” provision under § 2614(a)(1)(B)
recognizes the dynamic needs of employers and permits them
to restore employees to positions other than the exact one they
left, but it does not permit the employer to delay an
employee’s restoration for a “reasonable time” after returning
from FMLA leave. Likewise, the requirement under
29 C.F.R. § 825.214(b) that a returning employee be capable
of performing the essential functions of the job does not
18 Hoge v. Honda of America Nos. 03-3452/3477
impart a reasonable delay period for the employer to find a
suitable position.
The right to restoration arises when the employee is able to
perform the essential functions of the position he left or an
equivalent. If an employee can do so and has provided
medical certification (if required by a uniform policy), the
employer cannot simply delay restoration while it takes a
reasonable amount of time to find a suitable position. Again,
a “reasonable” delay in restoration after reasonable notice is
given would force the employee to take more FMLA leave
than is required and would interfere with an employee’s
exercise of FMLA rights. 29 U.S.C. § 2615(a)(1); 29 C.F.R.
§ 825.312(e).
Next, we are not persuaded by Defendant’s argument to
read the FMLA in pari materia with the ADA because the
statutes deal with the same subject. See Jones v. St. Louis-
San Francisco Ry. Co., 728 F.2d 257, 262 (6th Cir. 1984).
Although the FMLA and the ADA both regulate the
employer-employee relationship, they protect an employee in
different ways. We have recently highlighted this distinction.
The FMLA protects an employee from adverse action as
a result of his taking leave for a serious medical
condition. It does not protect an employee from adverse
action motivated by the underlying medical condition
itself. Although the factual scenarios that give rise to an
FMLA or ADA cause of action may often coincide, the
legal entitlements that flow from these facts will differ.
Chandler, 283 F.3d at 825. “The ADA and the FMLA have
divergent aims, operate in different ways, and offer disparate
relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir.
2001); Watkins v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir.
1998) (FMLA and ADA “causes of action may interrelate,
[but] they involve separate and distinct statutory claims”).
Unlike the FMLA, the finding of a disability is the key “that
unlocks the storehouse of statutory protections” under the

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Nos. 03-3452/3477 Hoge v. Honda of America 19
ADA. Navarro, 261 F.3d at 101. The ADA prohibits
discrimination against employees who have a disability as
defined by the statute. 42 U.S.C. § 12112(a). An employer
must make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability.” Id. at § 12112(b)(5)(A).
Honda argues that Plaintiff’s return raised potential
application of the ADA and that the FMLA should be read to
include a reasonableness element like the ADA. Honda
contends that it should be given reasonable time to find a
position as a reasonable accommodation of Plaintiff’s
physical restrictions. This argument is unavailing. “[T]he
leave provisions of the [FMLA] are wholly distinct from the
reasonable accommodation obligations of employers covered
under the [ADA].” 29 C.F.R. § 825.702(a).
The ADA implications surrounding Hoge’s physical
limitations existed prior to her FMLA leave associated with
her abdominal surgery and the uncontested evidence shows
that she was capable of performing the essential functions of
the position which she left. As such, Honda was not
confronted with new potential ADA liability. Honda points
out that courts have recognized that an employer’s inquiry
under the ADA to identify alternative positions is a time
consuming process and that an employer is permitted a
reasonable time to make a “reasonable accommodation”
inquiry under the ADA. See Kiphart v. Saturn Corp., 251
F.3d 573, 586 (6th Cir. 2001) (“When job reassignment is
appropriate [under the ADA], an employer ‘should reassign
the individual to an equivalent position . . . if the individual
is qualified, and if the position is vacant within a reasonable
amount of time.’" ) (quoting 29 C.F.R. § 1630.2(o)); see also
Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir.
2004); Burns v. Coca-Cola Enters., 222 F.3d 247, 257 (6th
Cir. 2000). Because the ADA may permit a reasonable time
to make accommodations for statutorily disabled employees,
does not however, impact the FMLA’s right to restoration. 29
C.F.R. § 825.702(a) (“An employer must [ ] provide leave
20 Hoge v. Honda of America Nos. 03-3452/3477
under whichever statutory provision provides the greater
rights to employees. When an employer violates the FMLA
and a discrimination law, an employee may be able to recover
under either or both statues.”) Under 29 U.S.C. § 2614(a), an
employee is entitled to be restored if he can perform the
essential functions of his job. If he can, he is entitled to
restoration and no potential ADA liability exists because he
is capable of doing the work done previously. If he cannot,
no FMLA liability follows for failing to restore that
employee. However, the employer must then also look to the
separate and distinct potential for liability under the ADA or
other statutes.
The position Hoge left accommodated her physical
limitations associated with her back injury and Honda was
required to restore her to that position or an equivalent upon
her return. Honda does not argue that it did not have an
equivalent position or that Plaintiff could not perform the
essential functions of such an equivalent position.
Next, Honda’s assertion that construing § 2614(a) to
include an “immediate” right to restoration on return from
FMLA leave would render certain regulations passed by the
Secretary of Labor invalid is without merit. The FMLA
requires restoration “on return” from leave and the regulations
that permit delay in restoration merely identify when an
employee’s return is effective, triggering the right to
restoration. These regulations are therefore not inconsistent
with the statute. Although we recognize Honda’s potential
needs to juggle the realties of a dynamic business
environment with its obligations under the FMLA, its policy
arguments (offered to support reading an implicit
reasonableness requirement into the statutory language)
necessarily fall on deaf ears. Such policy arguments are more
appropriately addressed to the United States House of
Representatives and Senate. See In re Aberl, 78 F.3d at 244.
The text is not ambiguous and the structure of the FMLA
does not impart a reasonableness element into 29 U.S.C.
§ 2614(a).

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Nos. 03-3452/3477 Hoge v. Honda of America 21
We affirm the district court inasmuch as Honda was
required to restore Plaintiff to her previous position or its
equivalent starting at least on June 29, 2000 (two business
days after receiving unambiguous notice of her return).
However, an issue of fact exists as to whether Honda
anticipated Hoge’s return on June 27, 2000. If Honda, in fact,
had reasonable notice that Plaintiff’s FMLA leave was to end
on June 27, 2000, she was entitled to restoration on that date.
C. Liquidated Damages
Section 2617(a)(1)(A)(iii) of the FMLA provides that an
employer shall be liable for an amount of liquidated damages,
in addition to compensatory damages equal to the amount of
wages, salary, employment benefits, or other compensation
denied or lost to an employee, plus interest, by reason of an
employer’s violation of 29 U.S.C. § 2615. Chandler, 283
F.3d at 827. Although liquidated damages are the norm in
cases where an employer violates § 2615, the district court
may reduce such an award to comprise only compensatory
damages if the employer “proves to the satisfaction of the
court that the act or omission which violated section 2615 . . .
was in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a
violation of section 2615.” 29 U.S.C. § 2617(a)(1)(A)(iii).
“The employer must therefore show both good faith and
reasonable grounds for the act or omission.” Chandler, 283
F.3d at 827 (emphases in original).
The record supports the district court’s finding that Honda
had both a good faith belief that it had a reasonable time to
find Plaintiff an equivalent position based on her physical
restrictions and that Honda’s interpretation of the FMLA’s
restoration provision was objectively reasonable. As noted by
the district court, the evidence reveals that Hoge was on
FMLA leave when Honda implemented a gradual model
changeover which affected its production line positions.
Plaintiff had significant physical restrictions regarding her job
capabilities and Honda located a position for Plaintiff within
22 Hoge v. Honda of America Nos. 03-3452/3477
one month after learning that she was ready to return to work.
Honda made efforts to examine its new positions in light of
the model changeover and Hoge’s physical restrictions. This
evidence supports the district court’s good faith conclusion.
Also, the unsettled nature of the timing of an employer’s duty
to restore an employee returning from FMLA leave under the
circumstances provides a basis for the district court’s finding
that Honda’s interpretation of 29 U.S.C. § 2614(a) was
objectively reasonable. There was no abuse of discretion and
we affirm the district court’s decision to deny liquidated
damages.
D. Plaintiff’s Gradual Return to Work
Plaintiff cross-appeals the district court’s conclusion that
she was not entitled to damages on her FMLA claim
associated with her gradual return to work. The district court
rejected Plaintiff’s argument that she was not fully restored to
an equivalent position until the end of her gradual return to
work policy. It noted that the GRTW program was approved
by Hoge’s family physician and that it was “undisputed that
Plaintiff did not object to the gradual program”
notwithstanding Honda’s policy which permitted her to
terminate the program and return to full-time employment
with physician’s approval at any time. The district court
found “no evidence that Plaintiff made any [attempt to end
the GRTW program] in this case. Thus, the Court [could not]
conclude that the simple fact that Plaintiff was placed on a
gradual return to work schedule was a violation of the
restoration provisions of the FMLA.”
We agree. Plaintiff’s family physician, Dr. Joseph
Ottaviano, approved the GRTW program. Further, Plaintiff
agreed to her gradual return and failed to object. The
undisputed evidence reveals that Plaintiff could have elected
to terminate the GRTW program at any time with her
physician’s approval, and that she failed to do so, even after
obtaining a lawyer. Plaintiff argues that Honda did not return
her to an “equivalent position” because she did not receive

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Nos. 03-3452/3477 Hoge v. Honda of America 23
her regular full-time pay and benefits. Plaintiff complains
that she was not returned to a job with the same hours and
pay, but understates the importance of the option she always
possessed to resume working full time under the GRTW
program. By providing Plaintiff with the option to return to
full-time work (with her own physician’s approval), Honda
placed the key in Plaintiff’s hand, and thus provided Plaintiff
with an equivalent position under 29 C.F.R. § 825.215(a).
Plaintiff also relies on 29 C.F.R. § 825.220(d) to support
her argument that Honda induced her to waive her FMLA
rights. Section 825.220(d) provides:
Employees cannot waive, nor may employers induce
employees to waive, their rights under FMLA. For
example, employees (or their collective bargaining
representatives) cannot "trade off" the right to take
FMLA leave against some other benefit offered by the
employer. This does not prevent an employee's
voluntary and uncoerced acceptance (not as a condition
of employment) of a "light duty" assignment while
recovering from a serious health condition (see
§ 825.702(d)).
29 C.F.R. § 825.220(d).
Plaintiff claims that she did not request the GRTW program
and that she was directed to sign the GRTW form before
returning to work. Plaintiff stated: “I was told I needed to
sign the form before I could start my shift.” (Pl.’s Aff. at 2;
JA 272.) This evidence, however, is not sufficient to
establish that Honda induced or coerced Plaintiff into waiving
her FMLA rights. Plaintiff’s acceptance of the GRTW
program under these circumstances does not constitute a
waiver of rights. This is especially true because she agreed to
a restoration program that permitted her to end the gradual
component of her return to work at any time. Because
Plaintiff had the undisputed ability to return to work full time
on the engine line any time after being restored, Honda did
24 Hoge v. Honda of America Nos. 03-3452/3477
not induce her to waive her right to restoration to an
equivalent position under the FMLA.
CONCLUSION
For the reasons stated herein, the judgment of the district
court is AFFIRMED IN PART, REVERSED IN PART, and
this matter is REMANDED for further proceedings consistent
with this opinion.

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