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The full case caption appears at the end of this opinion. Sandra Rice brought an action against Sunrise Express, Inc. (“Sunrise Express”) for violating the Family Medical LeaveAct (“FMLA” or “the Act”) after Sunrise Express terminated her upon her return from a medicalleave. Sunrise Express argued that Ms. Rice would have been terminated even if she had not takenleave, and, thus, the company had not violated the Act. The jury returned a verdict for Ms. Rice. On appeal, Sunrise Express first asserts that the district court erroneously placed the burdenof proof on Sunrise Express to prove that it had a legitimate business reason for her termination.Sunrise Express’ second argument is that insufficient evidence exists to find a violationof the FMLA. For the reasons set forth in more detail in the following opinion, we hold that thedistrict court improperly placed the burden of proof on Sunrise Express. Therefore, we reversethe judgment of the district court and remand the case to the district court for proceedingsconsistent with this opinion. I BACKGROUND A. Facts In 1994, Sunrise Express, a trucking company, hired Sandra Rice as a payroll billing clerk.When Sunrise Express hired Ms. Rice, it already employed two other payroll billing clerks. Bothof these other employees left the company by early 1995. Thereafter, Sunrise Express hiredChristy Huntington to replace the departing employees. In 1995, the owners of Sunrise Express sold the company to Gainey Corporation (“Gainey”), andlater, in 1997, Sunrise Express was merged into Sunrise U.S.A., Inc. (“Sunrise USA”). Due to thesale of Sunrise Express, the company reorganized its office, computerized its payables andreceivables, and upgraded its computer system. Sunrise Express asserts that this upgrade,completed by November 1995, drastically increased the speed of data entry, the main responsibilityof payroll billing clerks. Consequently, the workload of these individuals also was reduceddrastically. The company further claims that it restructured the duties of several employees so that the manager of the payroll billing clerks assumed some of their tangential duties. Meanwhile, the company began to experience adecrease in its freight business. Sunrise Express argues that all of these factors led to itsdecision to terminate one of its payroll billingclerks. Ms. Rice began working for Sunrise Express inJanuary 1994; she had 6 to 12 months experiencein the trucking industry and 8 to 10 yearsexperience as a payroll/billing clerk. She neverhad received a written evaluation of her work,and she never had been disciplined, reprimanded,or verbally warned. Employees of Sunrise Express,including one of its owners, testified that sheperformed satisfactorily and that they had noproblems with her work. In mid-January 1996, Ms. Rice injured a toe onher right foot and experienced both swelling andinfection. Her physician admitted her to thehospital and placed her on antibiotics. Sheremained in the hospital for one week and thenreturned home for a second week. Her physicianthen authorized her to work half-days, which shedid for one more week. At the end of the week,however, the physician informed her that her toehad to be amputated. Ms. Rice underwent surgeryon February 14 and remained on leave from workfor 4 more weeks before her doctor released herto return to work beginning on March 11. On March 5, Ms. Rice informed Sunrise Expressthat she would be returning to work on March 11;however, on March 7 she was informed that she wasbeing laid-off beginning March 11. According toSunrise Express, her lay-off stemmed from thedecrease in freight and the ability of otheremployees to complete the work without her.Sunrise Express claimed that Ms. Rice was chosenfor the lay-off over Ms. Huntington because thelatter had a better work ethic and because Ms.Rice wasted time taking smoke breaks, playingcomputer games, and talking on the telephone. Ms. Rice claims, however, that Betty Keiser, theowner of Sunrise Express, told her that thereason for her lay-off was because she was”already off.” Tr.V at 60. The plaintiff alsostates that others in Sunrise Express managementtold her that the decision to terminate her wasmade months before her medical leave. SunriseExpress offered the personal circumstances of Ms.Rice as its reason for not terminating her beforeher FMLA leave. Sunrise Express states that itchose January 1 as the target date for Ms. Rice’slay-off because the company did not wish todismiss an employee during the holiday season.Around the target date, Ms. Rice’s familyexperienced the death of a member and alsosuffered other health and financial problems.Therefore, Sunrise Express claims, it decided todelay her lay-off a “short time” and within that”short time” she went on FMLA leave. Ms. Rice sued Sunrise Express for violating 29U.S.C. sec. 2614(a)(1) for failing to reinstateher to her previous position at the end of aqualified medical leave. [FOOTNOTE 1]She thereafteramended her complaint to add Sunrise USA andGainey as defendants. The district court deniedthe defendants’ joint motion for summary judgmentand Ms. Rice’s cross-motion for partial summaryjudgment. B. Procedural History On September 17, 1997, the district courtconducted a final pre-trial conference. At thatmeeting, the court raised the issue of whetherGainey was liable as a successor corporation oras a joint employee of Sunrise Express. Defensecounsel told the court that, as a practicalmatter, the issue of Gainey’s liability was notmaterial to the outcome of the case or to theviability of any judgment that Ms. Rice mightobtain. The parties explained that they hadstipulated that Sunrise USA was the successorcorporation of Sunrise Express following theirmerger and, therefore, would be liable for anyjudgment rendered against Sunrise Express.Satisfied that Sunrise USA had ample resources topay any judgment that might be rendered in favorof Ms. Rice, the district court suggested thatthe parties enter into a stipulation to thateffect and “simply hold in abeyance anydetermination of successor liability by GaineyCorporation until such time as it may becomematerial.” Tr.I at 5. Both counsel agreed thatthis course of action was acceptable, and thecourt stated that they could “get the issue outof the case for the time being, and perhaps nothave to deal with it at all.” Tr.I at 6. [FOOTNOTE 2] Noformal order was entered severing the successorliability claim against Gainey or dismissingGainey without prejudice. The case proceeded totrial only against Sunrise Express and itssuccessor, Sunrise USA. Indeed, the AgreedStatement of the Case identified the defendantsat trial as Sunrise Express, Inc. and SunriseUSA, Inc. There was no mention of Gainey. Several weeks later, the district court raisedthe possibility of referring this case to amagistrate judge for trial because the districtjudge’s own calendar was running somewhat behind.Counsel for the defense later filed a writtenconsent on behalf of Sunrise Express, Inc. [FOOTNOTE 3] Noconsent was sought from Gainey, even though thesame counsel represented both Sunrise USA andGainey. The magistrate judge proceeded to conduct a two-day trial on October 22 & 23, 1997. Counselappeared at trial on behalf of Sunrise Expressand Sunrise USA. Throughout the course of trial,no indication was given that Gainey was missingfrom the trial. At the conclusion of the two-day trial, the juryrendered a verdict in favor of Ms. Rice. Themagistrate judge then entered an order andjudgment in her favor and against Sunrise USA.The judgment order specifically indicated thatthe judgment was against Sunrise USA alonebecause the parties had stipulated that SunriseUSA was the “proper named defendant in thiscase.” R.86 at 9. [FOOTNOTE 4] At no time did counsel forSunrise USA object that the record lackedGainey’s consent to trial before the magistratejudge. Sunrise USA appealed the judgment of thedistrict court to this court. On December 16,1997, we entered an order sua sponte requiringSunrise USA, Sunrise Express, and Gainey to filea jurisdictional memorandum. In reply to thatorder, these corporations raised for the firsttime the argument that Gainey had not consentedto trial by a magistrate judge and that suchconsent was necessary for jurisdiction. On January 30, 1998, Ms. Rice filed, in thedistrict court, a motion for correction of recordand entry of an order nunc pro tunc. The districtcourt granted Ms. Rice’s motion and directed theclerk of the district court to enter a notationin the record to show that the court had, onSeptember 17, 1997, accepted the stipulation ofthe parties that Gainey was to be severed fromthe case. [FOOTNOTE 5] In issuing the order, the districtcourt pointedly noted that it was taking theaction in order to show what had been donepreviously, not to alter substantive rights: As the transcript of the September 17, 1997final pre-trial conference shows, this courtdetermined that Sunrise USA was financially ableto satisfy any judgment against it, and thenobtained both counsel’s agreement thatdetermination of Gainey’s liability would not bean issue at trial. Therefore Gainey was severedfrom the trial. Under Rule 21 of the FederalRules of Civil Procedure, severance creates twoseparate actions where previously there was butone. R.122 at 6. II DISCUSSION A. Jurisdiction The first issue that we must confront is thejurisdiction of this court and, by implication,the jurisdiction of the district court. Becausefederal courts are courts of limitedjurisdiction, we must approach any questionconcerning the limits of our authority with greatcare and circumspection. At the same time, wemust avoid hypertechnical characterizations ofprocedural matters that serve none of thepolicies that animate the jurisdictional statutesbut instead produce judicial diseconomy andincrease litigant expenses. [FOOTNOTE 6] The situation before us arises from the failureof the district court to account explicitly forthe defendant Gainey. As the case originally cameto this court, it appeared that Gainey had notconsented to trial before a magistrate judge.Therefore, it appeared that the allegation withrespect to it was still pending in the districtcourt. If this situation were the case, therewould be no final judgment in the action toprovide this court with jurisdiction under 28U.S.C. sec. 1291. Nor would the magistrate judgehave been authorized to act as the districtcourt. [FOOTNOTE 7] The district court attempted to clarifythis ambiguity by the entry of a nunc pro tuncorder that recites that, at the final pretrialconference, the district court, acting pursuantto Rule 21 of the Federal Rules of CivilProcedure, [FOOTNOTE 8] had severed Gainey and that thecase proceeded only with respect to the otherdefendants. [FOOTNOTE 9] A district court may enter a nunc pro tunc orderthat clarifies a jurisdictional issue. In Local1545, United Mine Workers of America v. InlandSteel Coal Co., 876 F.2d 1288 (7th Cir. 1989),this court encountered a situation analogous tothe one at hand. On May 10, the district court,when entering judgment against the defendants,only listed the name of one of the twodefendants. On June 23, this court issued suasponte an order requiring the parties to submitmemorandums on the jurisdictional issue ofwhether judgment had been entered as to all theparties because the second defendant’s name wasnot on the final judgment. On June 28, thedistrict court issued a nunc pro tunc orderclarifying its earlier order and stating that thecourt had intended to include the seconddefendant in the May 10 judgment. In our lateropinion, we discussed whether the original appealwas premature because it had been filed prior tothe nunc pro tunc and thus prior to finaljudgment as to both of the defendants. Weconcluded that the appeal was timely becausefinal judgment as to both the defendants had beenentered on May 10. When a district court has taken all the stepsnecessary for an action that affectsjurisdiction, but imprecisely memorializes thataction, the district court may issue a nunc protunc order to explain more precisely what tookplace. Given the Supreme Court’s expressdirection in Banker’s Trust Co. v. Mallis, 435U.S. 381, 386-87 (1978), a decision regardingjurisdiction cannot turn on a rigid paper trail;rather, we must evaluate what actually occurredand determine whether the failure to memorializeadequately what in fact occurred misled orprejudiced any party. When a United States District Judge states whatoccurred in his or her courtroom on a particularoccasion, that statement is certainly worthy ofour acceptance, unless the record demonstratesthat the judge misapprehended the situation. Adistrict court’s credibility certainly is notdependent on the existence of a contemporaneouswriting. As Judge Flaum, writing for a panel thatalso included Judges Posner and Kanne, has noted: [a] written order is the best evidence of ajudicial act. But in the absence of a statutoryprovision requiring the entry of a written order,the judicial determination alone stands as theoperative act of the court. Courts accomplishmuch of their business without formalmemorialization. United States v. Taylor, 841 F.2d 1300, 1308 (7thCir.), cert. denied, 487 U.S. 1236 (1988). The record demonstrates that the order enteredby the district court is “nunc pro tunc” not onlyin form but in substance. The district court waswell aware that it could not “rewrite history,”but could only clarify what had taken place inits earlier proceedings. The district courtacknowledged that it was simply memorializing thepast, not changing the status of the parties.Moreover, the course of the proceedings at thepre-trial conference demonstrates that thedistrict court intended a severance and that theparties understood the action as a severance.First, the district court stated that the partiesshould “simply hold in abeyance any determinationof successor liability by Gainey Corporationuntil such time as it may become material.” Bothcounsel agreed that this course of action wasacceptable, and the court concluded that theycould “get the issue out of the case for the timebeing, and perhaps not have to deal with it atall.” Tr.I at 6. The court presumably knew that,if the trial was bifurcated pursuant to Rule 42,then the issue of Gainey’s liability would stillneed to be determined at some point in order toobtain a final judgment. On the other hand, ifthe court severed the trial under Rule 21, thenfinal judgment could be rendered as to SunriseUSA and Sunrise Express independent of Gainey’sliability. Given the court’s comment that theymight not need to deal with Gainey’s liability atall, the pre-trial conference demonstrates thatthe district court intended to sever Gainey as aparty under Rule 21. The court’s nunc pro tuncorder clarified this former action. The parties also understood the court’s actionas a severance. The record demonstrates that theparties did understand that the suit wasproceeding only against Sunrise USA and SunriseExpress. In addition to the dialogue at the pre-trial conference, the parties, in their AgreedStatement of the Case, explained that the casewas brought by Ms. Rice against the defendantsSunrise Express and Sunrise USA. No mention wasmade of Gainey. Also, in the Agreed Proposed JuryInstructions, the parties again stated that suitwas brought against Sunrise Express and SunriseUSA and further clarified that Sunrise USA wouldbe responsible for any verdict in favor of theplaintiff. No mention was made of Gainey.Finally, the jury instructions given by thedistrict court, without objection by thedefendants, explained that Ms. Rice was seekingcompensation from Sunrise Express and SunriseUSA. No mention was made of Gainey. Taken as awhole, the record demonstrates that the partiesunderstood that Gainey had been severed from thesuit. The district court properly severed Gainey underRule 21. It is within the district court’s broaddiscretion whether to sever a claim under Rule21. See Hebel v. Ebersole, 543 F.2d 14, 17 (7thCir. 1976); see also United States v. O’Neil, 709F.2d 361, 367 (5th Cir. 1983). Before making theseverance, the district court does not need todetermine the merit of the second claim. As longas there is a discrete and separate claim, thedistrict court may exercise its discretion andsever it. Here, the district court effectivelytook Gainey, and the separately pled claim forsuccessor liability against Gainey, out of thesuit. The other parties already had stipulatedthat Sunrise USA would be liable in full for anyjudgment against Sunrise Express. Because Gaineydid not face primary liability, and, in alllikelihood, no liability at all, its presence wasnot necessary, and, in the view of the districtcourt, its removal significantly simplified thecase. Once that party and claim were taken out ofthe case, the district court validly enteredfinal judgment as to the remaining parties andclaims under Rule 58. We certainly cannot saythat the district court’s determination was “sotransparently a confusion of Rule 21 with Rule42(b), or an attempt to separate an essentiallyunitary problem,” see Spencer, White & PrentisInc v. Pfizer Inc., 498 F.2d 358, 362 (2d Cir.1974), that the district court abused itsdiscretion. See also Hebel, 543 F.2d at 17(stating that a court’s discretion in severingclaims under Rule 21 may not be abused toseparate an essentially unitary problem). Because Gainey had been severed from the case,its consent to the magistrate judge’s trying theremaining counts of the suit was not needed; themagistrate judge therefore was entitled to enterfinal judgment with respect to these counts.Accordingly, the district court had jurisdiction,and we have appellate jurisdiction. B. Burden of Proof and Jury Instructions The district court instructed the jury that thedefendants had the burden to establish that Ms.Rice would not have been retained even if she hadnot been on FMLA leave. [FOOTNOTE 10] For the reasons thatfollow, we have concluded that this instructionis not an accurate reflection of the statutorymandate. In analyzing this issue, we must focuson the structure and the language of the statute.We begin with the structure. In King v. Preferred Technical Group, 166 F.3d887 (7th Cir. 1999), Judge Kanne explained, insome detail, the structure of the FMLA. He notedthat the Act “establishes two categories of broadprotections for employees.” 166 F.3d at 891.First, in sec.sec. 2612-2615, the Act containsprescriptive protections for employees that areexpressed as substantive statutory rights. As theJudge wrote in King: The Act provides eligible employees of a coveredemployer the right to take unpaid leave for aperiod of up to twelve work weeks in any twelve-month period for a serious health condition asdefined by the Act. 29 U.S.C. sec. 2612(a)(1).After the period of qualified leave expires, theemployee is entitled to be reinstated to theformer position or an equivalent one with thesame benefits and terms of the employment thatexisted prior to the exercise of the leave. 29U.S.C. sec. 2614(a). To insure the availabilityof these guarantees, the FMLA declares it”unlawful for any employer to interfere with,restrain, or deny the exercise of or the attemptto exercise, any right provided. 29 U.S.C. sec.2615(a)(1). King, 166 F.3d at 891. When an employee alleges adeprivation of these substantive guarantees, theemployee must demonstrate by a preponderance ofthe evidence only entitlement to the disputedleave. The issue of the employer’s intent isimmaterial. See King, 166 F.3d at 891. In addition to these substantive prescriptiverights, the FMLA also “affords employeesprotection in the event they are discriminatedagainst for exercising their rights under theAct.” Id. Thus, the Act proscribes action by theemployer to discriminate or to retaliate againstan employee for the exercise of rights created bythe Act. See id.; see also 29 U.S.C. sec.2615(a)(2) & (b). These proscriptive provisionsthus create a cause of action analogous to theactions for discrimination and for retaliationthat are found in Title VII and the otherdiscrimination statutes. As Judge Kanne explainedin King: In contrast to what an employee must show toestablish a deprivation of a substantiveguarantee under the Act, when an employee raisesthe issue of whether the employer discriminatedagainst an employee by taking adverse actionagainst the employee for having exercised an FMLAright, the question of intent is relevant. Theissue becomes whether the employer’s actions weremotivated by an impermissible retaliatory ordiscriminatory animus. King, 166 F.3d at 891. Ms. Rice claims that her employer, SunriseExpress, interfered with her rights under theFMLA. In order to make such a claim, however, shemust, as an initial matter, demonstrate that shepossessed a right under the Act. We thereforemust turn to the prescriptive section thatcreates the right to reinstatement and focus onthe wording of that section. Section 2614(a)(1)states: Except as provided in subsection (b) of thissection, any eligible employee who takes leaveunder section 2612 of this title for the intendedpurpose of the leave shall be entitled, on returnfrom such leave– (A) to be restored by the employer to theposition of employment held by the employee whenthe leave commenced; or (B) to be restored by the employer to anequivalent position with equivalent employmentbenefits, pay, and other terms and conditions ofemployment. 29 U.S.C. sec. 2614(a)(1). The same section latersets more precise contours on that right byplacing limitations on that right. Section2614(a)(3) explains: Nothing in this section shall be construed toentitle any restored employee to– (A) the accrual of any seniority or employmentbenefits during any period of leave; or (B) any right, benefit, or position ofemployment other than any right, benefit, orposition to which the employee would have beenentitled had the employee not taken the leave. 29 U.S.C. sec. 2614(a)(3). In short, the employeeis entitled to be reinstated to the same positionheld before the leave or to an equivalentposition. In King, and again in Diaz v. Fort Wayne FoundryCorp., 131 F.3d 711 (7th Cir. 1997), this courtstated succinctly the burden of the plaintiff inestablishing a cause of action under theprescriptive sections of the Act, including sec.2614(a)(1) of the FMLA. The plaintiff mustestablish, by a preponderance of the evidence,that he is entitled to the benefit that heclaims. See Diaz, 131 F.3d at 713. As we havejust pointed out, sec. 2614(a)(3) makes clearthat the substantive right created by sec.2614(a)(1) does not include an entitlement to anyright, benefit, or condition to which theemployee would not have been entitled if theleave had not been taken. We think that thislatter provision, given its structural andsemantical relationship to sec. 2614(a)(1), isbest read as a rule of construction that affectsthe meaning of sec. 2614(a)(1) by excluding fromthe substantive right “any right, benefit, orposition of employment other than any right,benefit, or position to which the employee wouldhave been entitled had the employee not takenleave.” 29 U.S.C. sec. 2614(a)(3). When sec.2614(a)(3) is read in this manner, the employeealways bears the ultimate burden of establishingthe right to the benefit. If the employer wishesto claim that the benefit would not have beenavailable even if the employee had not takenleave, the employer must submit evidence tosupport that assertion. When that burden of goingforward has been met, however, the employee mustultimately convince the trier of fact, by apreponderance of the evidence, that, despite thealternate characterization offered by theemployer, the benefit is one that falls withinthe ambit of sec. 2614(a)(1); the benefit is onethat the employee would have received if leavehad not been taken. For instance, if the employerclaims that the employee would have beendischarged or that the employee’s position wouldhave been eliminated even if the employee had nottaken the leave, the employee, in order toestablish the entitlement protected by sec.2614(a)(1), must, in the course of establishingthe right, convince the trier of fact that thecontrary evidence submitted by the employer isinsufficient and that the employee would not havebeen discharged or his position would not havebeen eliminated if he had not taken FMLA leave. In its regulations implementing the Act, see 29U.S.C. sec. 2654, the Department of Labor (“DOL”)has stated: An employer must be able to show that an employeewould not otherwise have been employed at thetime reinstatement is requested in order to denyrestoration to employment. . . . An employerwould have the burden of proving that an employeewould have been laid off during the FMLA leaveperiod and, therefore, would not be entitled torestoration. 29 C.F.R. sec. 825.216(a)(1). Read as a whole andin the context of the entire regulatory scheme,we think that this regulation is best understoodnot as the agency’s understanding as to Congress’allocation of the ultimate burden of proof in thelitigation context, but as an explanation of thenature of the substantive right created by thestatute. Similarly, the decision of ourcolleagues in the Eleventh Circuit in O’Connor v.PCA Family Health Plan, Inc., 200 F.3d 1349 (11thCir. 2000), does not state in any definitivefashion that the statutory text was intended toalter the normal allocation of burdens of proofat trial, but simply states that “when an’eligible employee’ who was on FMLA leave allegesher employer denied her FMLA right toreinstatement, the employer has an opportunity todemonstrate it would have discharged the employeeeven if she had not been on FMLA leave.”O’Connor, 200 F.3d at 1354. In this case, in which the evidence was fairlyclose, we cannot say that the district court’sinstruction misallocating the burden of proof didnot make a difference in the final outcome of thecase. Accordingly, we must remand the case to thedistrict court for a new trial. Conclusion For the foregoing reasons, the jury verdict isreversed, and the case is remanded for furtherproceedings consistent with this opinion. REVERSED and REMANDED EVANS, Circuit Judge, dissenting. I respectfullydisagree with the majority’s conclusion that Riceshould have the burden of establishing that shewould have been retained if she had not been onFMLA leave. While I am not saying this issue canonly be sensibly resolved in one way, it seems tome that it’s better resolved by requiring theemployer to shoulder the burden. When a statute is not clear, we owe deference tothe interpretation by an agency charged withenforcing it if that interpretation is “based ona permissible construction of the statute.”Chevron U.S.A. v. Natural Resources DefenseCouncil, 467 U.S. 837, 843 (1984). Quitenaturally, this principle applies to regulationsof the Department of Labor. See Thorson v. GeminiInc., 2000 WL 236404 (8th Cir. 2000) (explicitlygiving Chevron deference to the Department ofLabor in its interpretation of “serious healthcondition” under the FMLA); and Price v. City ofFort Wayne, 117 F.3d 1022 (7th Cir. 1997)(relying on FMLA regulations to interpret thephrase “serious health condition” with noexplicit discussion of Chevron principles).Section 2614(a)(3)(B) gives employers anexemption but it is silent, and thereforeunclear, as to who bears the burden of proof onthe issue. Thus, the Department of Labor haspromulgated regulations which state that an”employer would have the burden of proving thatan employee would have been laid off during theFMLA leave period and, therefore, would not beentitled to restoration.” 29 C.F.R. sec.825.216(a)(1)(1997). Under this view, sec.2614(a)(3)(B) creates an affirmative defense. This agency interpretation of sec. 2614(a)(3)(B)is entirely reasonable. The FMLA provides asubstantive right (a “statutory entitlement”),Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711(7th Cir. 1997), and an antidiscriminationcomponent. Id.; King v. Preferred TechnicalGroup, 166 F.3d 887 (7th Cir. 1999). The”statutory entitlement” provisions of the FMLAshould be treated, we said in Diaz, similarly tothose in the National Labor Relations Act, theFair Labor Standards Act, and the EmployeeRetirement and Income Security Act. Under thoseActs, a burden can be placed on employers toprove that a provision does not apply to them.See NLRB v. Transportation Management Corp., 462U.S. 393 (1983); Corning Glass v. Brennan, 417U.S. 188 (1974) (the Equal Pay Act); Sutton v.Engineered Systems, Inc., 598 F.2d 1134 (8th Cir.1979) (the Fair Labor Standards Act). On a practical level, it makes sense to requirethe employer to bear the burden of proof on thisissue. The employer is in control of theevidence. Of course, one might say that the sameis true in discrimination cases, and there, touse the McDonnell Douglas model for summaryjudgment, the employer only has to produceevidence that there was a legitimate reason forthe employment action and the employee must showthat the reason given is pretextual. McDonnellDouglas v. Green, 411 U.S. 792 (1973). But thereare problems with the approach. Even indiscrimination cases, the McDonnell Douglasframework does not apply at trial. Postal Servicev. Aikens, 460 U.S. 711 (1983). And we have said,in a way that can hardly be misunderstood, thatwe disapprove of a McDonnell Douglas burden-shifting approach in FMLA cases not involvingdiscrimination. Diaz. Nevertheless, I think themajority here has allowed a McDonnell Douglas-style analysis to cast too dark a shadow over itsview of this case. What must be remembered is that this is a laborcase, not a discrimination case. Congress hasgiven the employee the substantive right to betreated as she would have been had she had nottaken leave. She should not have to prove thatthe company would have provided her a certainbenefit except for her taking leave. It makessense that the company, which must produceevidence on the issue even under the majority’sanalysis, should have to prove she would not havereceived the benefit. In short, in rejecting theLabor Department’s reasonable interpretation ofthe substantive provisions of the FMLA, themajority requires an analysis appropriate todiscrimination cases, not to a statute thatconfers substantive rights. I would affirm. FOOTNOTES FN1 29 U.S.C. sec. 2614(a)(1) states: Except as provided in subsection (b) of thissection, any eligible employee who takes leaveunder section 2612 of this title for the intendedpurpose of the leave shall be entitled, on returnfrom such leave– (A) to be restored by the employer to theposition of employment held by the employee whenthe leave commenced . . . . FN2 The dialogue states in full: THE COURT: Well, one thing we might do, then,why don’t we have a stipulation to that effect[Sunrise USA has ample resources to pay] andsimply hold in abeyance any determination of asuccessor liability by Gainey Corporation untilsuch time as it may become material. MS. BROGAN: [Ms. Rice's attorney]: Postjudgment. MR. KEEN: So a stipulation that Sunrise U.S.A.would– THE COURT: Is the successor to Sunrise ExpressInc. and would be liable for any judgment enteredagainst Sunrise Express, Inc. and as far as youknow, until you see the verdict, has theresources to pay it. MR. KEEN: Okay. THE COURT: That way we can simply– MS. BROGAN: That’s acceptable to us. THE COURT: –get the issue out of the case forthe time being, and perhaps not have to deal withit at all. Tr.I at 5-6. FN3 The district court construed this document as aconsent by Sunrise USA because Sunrise Express nolonger existed as a separate entity at the timeof the consent. FN4 See also R.87 and R.88 which enter judgment andamended judgment “in favor of the PlaintiffSandra L. Rice and against the Defendant SunriseU.S.A., Inc.” FN5 In the course of explaining what had occurredduring the district court proceedings, thedistrict court employed infelicitously the term”severed from the case for the purposes oftrial.” Read alone, this phrase might suggestthat the court intended to retain the successorliability count against Gainey in the case but tohold it for trial at another time. Such a readingwould be counter to the clear meaning of thedocument read as a whole. The court squarely saidthat it was severing the count against Gaineyunder Rule 21 and that such a severance “createstwo separate actions where previously there wasbut one.” R.122 at 6. FN6 In Bankers Trust Co. v. Mallis, 435 U.S. 381(1978), the Court declared that a common senseinterpretation of Rule 58, Fed. R. Civ. P., couldbe used because nonadherence to thetechnicalities did not mislead or prejudice theparties. Also, the Court stated that it would notavoid the merits of the action because of meretechnicalities. See id. at 386-87; see also Eisenv. Carlisle & Jacquelin, 417 U.S. 156, 170-71(1974) (stating that 28 U.S.C. sec. 1291 requiresa practical rather than technical construction offinality); cf. Foman v. Davis, 371 U.S. 178, 181(1962) (applying common sense interpretation toprior Rule 73 which dealt with notice of appealwhen defect occurred in second notice of appealand the defect did not mislead or prejudice theparties). FN7 This circuit has taken a strict view of theprerequisites for trial before a magistrate judgebecause the parties are giving up theirconstitutional right to trial before an ArticleIII judge with life tenure and salary protection.See Williams v. General Elec. Capital Auto Lease,Inc., 159 F.3d 266, 268 (7th Cir. 1998), cert.denied, 119 S. Ct. 2392 (1999). 28 U.S.C. sec.636, which authorizes suit before a magistratejudge, requires (1) consent of the parties and(2) special designation by the district court.The statute states in pertinent part: (1) Upon the consent of the parties, afull-time United States magistrate or a part-timeUnited States magistrate who serves as afull-time judicial officer may conduct any or allproceedings in a jury or nonjury civil matter andorder the entry of judgment in the case, whenspecially designated to exercise suchjurisdiction by the district court or courts heserves. 28 U.S.C. sec. 636(c). Although the requiredconsent does not need to be in writing, it mustbe explicit and on the record. See Mark I, Inc.v. Gruber, 38 F.3d 369, 370 (7th Cir. 1994).Also, the consent must be unanimous. SeeWilliams, 159 F.3d at 268; Brook, Weiner, Sered,Kreger & Weinberg v. Coreq, Inc., 53 F.3d 851,851-52 (7th Cir. 1995); Mark I, Inc., 38 F.3d at370. In applying the above authority, if Gainey wasstill a party to the action and did not consentto trial before the magistrate judge, then themagistrate judge would not have had jurisdictionto enter a final judgment. If the magistratejudge did not have jurisdiction then this courtwould not have jurisdiction under sec. 1291because no final judgment would have beenentered. Because the record does not containevidence of Gainey’s consent, the question wouldremain whether Gainey was still a party in thelitigation. FN8 Rule 21 reads as follows: Misjoinder of parties is not ground fordismissal of an action. Parties may be dropped oradded by order of the court on motion of anyparty or of its own initiative at any stage ofthe action and on such terms as are just. Anyclaim against a party may be severed andproceeded with separately. Fed. R. Civ. P. 21. If the district court severedGainey under Rule 21, then it created twoseparate actions, each capable of reaching finaljudgment and being appealed. If, however, Gaineywas not severed or the district court merelybifurcated the parties under Rule 42, Fed. R.Civ. P., then no final judgment could be entereduntil final judgment was reached on all issuesand parties. Rule 42 states: (b) Separate Trials. The court, in furtheranceof convenience or to avoid prejudice, or whenseparate trials will be conducive to expeditionand economy, may order a separate trial of anyclaim, cross-claim, counterclaim, or third-partyclaim, or of any separate issue or of any numberof claims, cross-claims, counterclaims,third-party claims, or issues, always preservinginviolate the right of trial by jury as declaredby the Seventh Amendment to the Constitution oras given by a statute of the United States. Fed. R. Civ. P. 42. The district court did notexplicitly state “I sever Gainey under Rule 21;”however, this court does not require a formalorder of severance if the evidence shows that thedistrict court intended to sever the parties andthe parties understood that severance hadoccurred. See Hebel v. Ebersole, 543 F.2d 14, 17(7th Cir. 1976); accord United States v. O’Neil,709 F.2d 361, 368 (5th Cir. 1983). As explainedbelow, the district court did intend to severGainey from the actions and the parties wereaware this had occurred. FN9 We believe that the district court was entitledto take the corrective action that it did take.If characterized as a correction of the recordunder Rule 10(e) of the Federal Rules ofAppellate Procedure, the action could be takenwithout leave of this court. Rule 10(e) states: (1) If any difference arises about whether therecord truly discloses what occurred in thedistrict court, the difference must be submittedto and settled by that court and the recordconformed accordingly. (2) If anything material to either party isomitted from or misstated in the record by erroror accident, the omission or misstatement may becorrected and a supplemental record may becertified and forwarded: (A) on stipulation of the parties; (B) by the district court before or after therecord has been forwarded; or (C) by the court of appeals. (3) All other questions as to the form andcontent of the record must be presented to thecourt of appeals. Fed. R. App. P. 10. If, on the other hand, thedistrict court’s action was taken under Rule60(a) of the Federal Rules of Civil Procedure,the permission of this court is a necessaryprerequisite because the case is in the court ofappeals. Rule 60 reads: (a) Clerical Mistakes. Clerical mistakes injudgments, orders or other parts of the recordand errors therein arising from oversight oromission may be corrected by the court at anytime of its own initiative or on the motion ofany party and after such notice, if any, as thecourt orders. During the pendency of an appeal,such mistakes may be so corrected before theappeal is docketed in the appellate court, andthereafter while the appeal is pending may be socorrected with leave of the appellate court. Fed. R. Civ. P. 60. As Local 1545, United MineWorkers of America v. Inland Steel Coal Co., 876F.2d 1288 (7th Cir. 1989), makes clear, however,the sua sponte order of this court inquiringabout jurisdiction is sufficient authority forthe district court to enter an order explainingthe circumstances that cause the jurisdictionalambiguity. See id. at 1291 n.4. FN10 The relevant jury instruction states, in part,that “a defendant is entitled to seek to prove,by a preponderance of the evidence, that theemployee would have been laid off during theperiod of her FMLA leave, even if she had nottaken such leave.” R.74 at 21.
Rice v. Sunrise Express, Inc. United States Court of Appeals For the Seventh Circuit Nos. 97-3982 & 98-2195 SANDRA L. RICE, Plaintiff-Appellee, v. SUNRISE EXPRESS, INCORPORATED, GAINEY CORPORATION and SUNRISE U.S.A., INCORPORATED, Defendants-Appellants. Appeals From: United States District Court for the Northern District of Indiana Argued: May 17, 1999 Decided: April 7, 2000 Before: Easterbrook, Ripple, and Evans
 
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