Arban v. West Publishing Corp

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Arban v. West Publishing Corp. Nos. 01-2278/2370 ELECTRONIC CITATION: 2003 FED App. 0341P (6th Cir.) File Name: 03a0341p.06 Motowski Lund, PEPPER HAMILTON, Detroit, Michigan, for Appellant. William G. Tishkoff, Marvin B. Bartlett, LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan, UNITED STATES COURT OF APPEALS for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________ OPINION DANIEL R. ARBAN, X _________________ Plaintiff-Appellee/ - JULIA SMITH GIBBONS, Circuit Judge. Daniel R. Arban Cross-Appellant, - brought this action against West Publishing Corporation - Nos. 01-2278/2370 - (West) pursuant to the Family Medical and Leave Act v. > (FMLA), 29 U.S.C. § 2611 et seq. Arban alleged that West , violated the FMLA by terminating him while he was on - medical leave and by failing to reinstate him at the WEST PUBLISHING CORP ., - completion of the leave. Arban also alleged that West Defendant-Appellant/ - violated the FMLA by interfering with, restraining, or Cross-Appellee. - denying him his right to take an FMLA leave. The case was - tried before a jury, which returned a verdict in favor of Arban. N West then filed a motion for judgment as a matter of law or Appeal from the United States District Court for a new trial, which the district court denied. West appeals. for the Eastern District of Michigan at Detroit. Arban cross-appeals the district court’s denial of front pay No. 99-73520—Bernard A. Friedman, District Judge. and liquidated damages and the district court’s grant of a stay without bond. For the reasons set forth below, we affirm the Argued: June 13, 2003 district court’s denial of West’s motion for judgment as a matter of law or for a new trial, reverse and remand the trial Decided and Filed: September 24, 2003 court’s denial of an award of liquidated damages, affirm the district court’s denial of Arban’s claim for front pay, and Before: KEITH, MOORE, and GIBBONS, Circuit Judges. affirm the district court’s grant of a stay without bond.

_________________ I.

COUNSEL Arban began working as a sales representative for Lawyer’s Cooperative Publishing in 1995. Lawyer’s Cooperative ARGUED: Abraham Singer, PEPPER HAMILTON, Publishing merged with West in 1996. Arban has a Detroit, Michigan, for Appellant. William G. Tishkoff, documented history of gastrointestinal problems, including LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan, chronic and severe esophagitis and irritable bowel syndrome, for Appellee. ON BRIEF: Abraham Singer, Michelle which began in the middle of 1995 or early 1996. In 1997,

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Arban was promoted from a field sales representative to a resulted in Dan benefitting from the sale.” Wolfe, Nicolini, regional field sales manager. In this position, he supervised and Carlson then inquired about the “[i]nconsistency with other representatives, while continuing to make sales. In [Arban’s] reported numbers.” According to Wolfe, Arban January 1998, Arban voluntarily returned to the position of admitted “lack of follow up in getting his orders in.” Wolfe field sales representative in order to spend more time with his also asked Arban about “sending in orders that do not have children. At that time Arban’s immediate supervisor was signatures,” and Arban admitted that on at least nine Robert Wolfe, who held the position of regional field sales occasions he “did not talk to the decision maker to get a manager. Wolfe, in turn, reported to Nick Nicolini, who verbal approval.” Wolfe explained to Arban that “this is not served as senior regional field sales manager, and to James allowable for Field Reps and is an abuse of our process.” In Colantino, who served as director of sales. his e-mail, Wolfe noted that Arban also “admitted to adding products to the order without the customer’s permission.” In February 1998, Richard Carlson, who had replaced Wolfe described this as an “event that should cause Arban as a regional field sales manager, learned that the termination.” Wolfe concluded the e-mail with the following preexisting account of the Hervas, Sotos law firm in suburban statement: Chicago had been cancelled, that a new account had been generated in the name of James Sotos, and that Arban had We have numerous examples of gross negligence, fraud, misrepresented this account as “a new sales activity.” deceit and lack of moral character. These are not areas in Carlson brought this information to the attention of Wolfe, which corrective action can be taken. I can merely Nicolini, and Arban. On April 1, 1998, Arban received a monitor him more closely. I recommend that Dan be warning letter from Wolfe, which stated: terminated as an employee of West Group in the near future. I also believe that everyone has a right to dignity I cannot overstate the seriousness of the situation. . . . and respect, Dan should be given the chance to resign. West Online Solutions will now be responsible for supporting an account where the revenue has been cut in I welcome any and all feedback from my fellow half. . . . This letter will warn you that misrepresentations Managers to see if I have missed any major elements that concerning an account are unacceptable to WEST would allow Dan to continue. His production in [sic] GROUP. I am confident that there will be no future needed, I like the fellow and he truly has great sales occurrence of such activity. However, I must include skills, unfortunately, the negative side outweighs the that any future occurrence will subject you to further positives. If I have not been open minded to an disciplinary action, up to and including termination from alternative that I should consider, please let me know. I West Group. have anguished over this decision and keep on coming up with no other workable solutions. On December 16, 1998, Wolfe, Nicolini, and Carlson met with Arban to discuss additional violations of company policy (emphasis added). At trial, Wolfe testified that Colantino committed by Arban and customer complaints that allegedly “had the final authority to make the decision to terminate Mr. had occurred in the intervening months. According to an e- Arban.” mail sent to Colantino by Wolfe the following day, the meeting began “with a reminder that Dan has been involved In an e-mail to Colantino, Nicolini, and Wolfe sent on the in switching names of accounts to achieve new sales that evening of December 17, Carlson noted that he “concur[red]

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in [Wolfe’s] summary” and added that he “believe[d] that throat. Arban called his physician’s office and described his [Wolfe’s] conclusion is well-supported.” At trial, Carlson condition to an associate of his physician, who called in a explained that he believed that “Arban should be terminated prescription to a pharmacy near Arban’s residence. The from the company” as a result of “[t]he account issues; the office notes from the call state “anxiety reflux . . . wants time misrepresentations of accounts to the company; the trouble to off work.” Arban picked up the medication later that day. the customers; the problems exceeded the good from Dan.” At trial, Nicolini also testified that he agreed with the On December 24, Arban contacted Joyce Van Sciver, a recommendation to terminate Arban “[b]ecause of all the human resources representative for West. Arban “explained ongoing things that Dan Arban had done.” Finally, Colantino what had happened” and that he would “be needing to take testified that after conferring with Wolfe, Nicolini, and Ira some time off.” Arban was told that there were no special Tiffenberg, a director of human resources for West, he forms needed to request an FMLA leave, but that he should decided to terminate Arban in the middle of December. contact West’s disability insurance carrier. Arban also told Colantino testified that in the days following December 17, he Van Sciver that he had an appointment to see his physician on communicated to Nicolini his decision to terminate Arban December 28. A “leave of absence form” prepared by Van after the holidays. Wolfe also testified that “within a few Sciver on December 29 indicates that Arban’s leave began on days of the December 16 meeting” Nicolini told him that “we December 25, 1998. A January 19 letter to Arban from should go ahead and terminate after the holidays.” West’s disability insurance carrier states that Arban’s claim for short-term disability benefits was approved for the period On December 21, Wolfe accompanied Arban on a “field between January 4 and January 21. ride.” At trial, Wolfe testified that the “Field Ride Recap” he prepared after the field ride was “simply a review of what I On December 28, Arban visited his physician, who saw that day with one customer” and “not a general provided him with a note stating that he had been treated for evaluation of Mr. Arban.” According to the recap, Arban “severe esophagitis and stress” and adding that Arban would received a rating of “meets expectations” in all areas. Wolfe be “unable to work for 3wks.” Arban hand-delivered medical testified that he did not “tell Arban that all the problems that certification forms he had received from West’s disability were raised at the December 16 meeting were cured,” nor did insurance carrier to his physician’s office on December 29, he tell Arban that “everything with him was in good and Arban’s physician completed the forms on January 8. standing.” However, Arban testified that after the ride, Wolfe made the following notation at the bottom of the recap: Arban notified Wolfe of his medical leave via telephone on “visited five accounts, all five accounts corrected.” The December 28. In an e-mail to Nicolini sent that day, Wolfe handwritten comments on the form provided in the joint stated, “I have not called Dan regarding this yet, nor have I appendix are illegible. Arban also testified that at no point spoke with Jim about this. I would think the first move would during the field ride did Wolfe indicate that he “hadn’t be to check with HR.” Arban also notified Wolfe of his properly followed up from the 16th.” Arban stated that Wolfe medical leave via e-mail on December 28. Wolfe forwarded told him that he was “very satisfied” and did not indicate that Arban’s e-mail to Nicolini shortly after it was received, with any action would be taken against Arban. the words, “Here is a message from Dan. I would think you also have some questions. Let’s talk and do the right thing.” Early in the morning of December 23, according to his testimony, Arban awoke with “a severe amount of acid” in his

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On December 29, Arban received a telephone call from *** Don Owens, a sales representative, who explained that “Bob Wolfe had instructed him to get these hot lists, to get the Q. Okay, I want to give you a chance to tell the jury different accounts and pending sales he could work with.” how it ended. What happened to conclude your Later that day, Wolfe called Arban at home. Arban testified phone conversation with Mr. Wolfe on the 30th? that Wolfe “wanted to kind of follow up on Don too to make sure those sales got in, and he wanted to find out what it was A. We were in the dialogue and Bob – you know, I that I had done and how much I had given Don so he could explained to Bob that I felt very uncomfortable, kind of track it.” based on the information that I knew about the FMLA and based on what Hartford had told me, I According to Arban, Owens called again the following day wasn’t supposed to be doing any work, that any “to check up with leads again.” Arban testified that Wolfe work I did could constitute jeopardizing my benefits also called on the afternoon of December 30. At trial, Arban that I would get. So I told him that I felt that he was described the conversation: really putting me on the spot here because I knew I wasn’t supposed to be working; my doctor said I Q. Okay, could you describe for the jury the phone call wasn’t supposed to be working. And what he was that you had with Mr. Wolfe on the 30th? requesting was more than what I had given Don initially. And he was asking me to do quite a bit A. He was upset. I thought that I was giving him more and I didn’t think that was in the best interest minimal effort. He said that the few leads that I of what I was supposed to be doing at that point. I gave Don, you know, that was unacceptable, you think he said something like, you know, well, we’ll know, as a top performer, that I would have more see, and he slammed the phone down. The going than that and that I should be able to produce conversation was over. a much more substantial list. And he said that he really needed me to put an effort towards it – really According to Arban, on December 31, Owens called him at wanted me to come up with quite a bit, you know, as home again and stated that “Bob asked me to give you a call much as I possibly could so again, he could make and see if you’d reconsider.” Arban refused. On January 5, these sales number. Arban received another call at home from Wolfe. Arban testified that Wolfe repeated his request that Arban provide Q. Did he describe why it was important to be doing Wolfe with “different accounts that I can work so when you this at this time? come back from your leave you’re ready to roll.” In response, Arban “explained that, again, I was certain that would be A. Well, we kind of knew – he reiterated just that it was against what I was supposed to be doing. I appreciated the the end of the year and that there were – there was a effort but, you know, that was not necessary. I would handle lot on the line for Jim Colantino and the exclusive it when I got back.” users. There were a lot of points involved. People could win certain prizes and he wanted to make sure Sometime between December 31 and January 3, Colantino that everybody got as much as they could. called Tiffenberg. Tiffenberg testified that Colantino “indicated at that time that Mr. Arban had applied for short-

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term disability and wanted to know whether or not we could Hartford said I was not supposed to do this. He said, proceed – or he could proceed with the termination of Mr. well, I’ll see about that. He’s going to call Hartford Arban’s employment.” Tiffenberg consulted with West’s in- and verify or check on whether or not that was to house counsel, who concluded that “there were no issues in take place – whether I could do that or not. proceeding with the termination.” When asked at trial whether he thought there was “any problem with terminating According to Arban, Wolfe called him again later that day. Mr. Arban during his leave,” Tiffenberg said no, and explained that “it had no relationship to the reasons for the Q. Okay, and what – go ahead. What was said to you termination, and the termination we had made that decision by Mr. Wolfe at that time? prior back in mid-December before Mr. Arban even had applied for leave.” However, Tiffenberg also testified that he A. Whole different tone at this point. He was very was not “aware of any records or e-mail that documents an upset, told me that I – he had called, spoke to actual decision being ordered by Mr. Colantino.” Hartford. They told him, you know, supposedly from what he said that I had to do this and that I, Late in the afternoon on January 6, Arban received another you know, my – if not, then I was going against telephone call from Wolfe. At trial, Arban described the what was called insubordination. conversation: *** Q. All right. Go ahead. Will you describe that phone call? Q. Okay, well, go ahead. If you could just describe to the jury what was said in that phone conversation? A. Bob called me again and asked me to come out and meet with him, asked me to pick a spot where I A. I asked Bob what was so important and why I had to thought I could drive out and meet him. And I, come and meet with him on this particular day at again, reiterated this to Bob, you know, I’m not this particular – you know, why I had to come and going to be able to do this. I can’t come to meet do this. They said, Dan, what I want you to do is with you. He suggested coming to my house and gather all your materials. I want you to bring your meeting with me. I told him at this point, any work computer, your laptop, and I want you to come out that I did I thought was a violation, and he became and meet me. We’ll pick a spot and we’ll meet. I more and more insistent and said that it was not in said this seems kind of unusual. You don’t need to violation, that I needed to do this, this was have all this material to go over hot lists that you’re something I had to do. going to manage while I’m gone. And he said, Dan, I need you to get all your – he wouldn’t tell me *** basically what the reason was so I finally called and said, Bob, it sounds to me like you’re firing me. Are Q. Okay. How did the phone conversation conclude? you terminating me, Bob? And he said, yes.

A. He said if I wanted – he asked me why I was Q. Did he make any mention about any of the materials unwilling to do that so I said I spoke with Hartford. or the computer that you had at your house?

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A. Oh yeah. He said he wanted met you [sic] gather problem. I’ll come to you. Where would you like to my computer, any hot list, any company be? And I said I have no idea. He said, well, we’ve information, anything at all that belonged to West he met before at the Weber. Why don’t we use the wanted me to gather, put in my car and meet him. Weber. . . . I said Fine. I said, I’ll meet you there and he said, Dan, you’ve got great reputation; you Q. And did you – go ahead. Can you just describe the know, employee file. He said, I were you, I’d be end of the conversation? Did you agree to do that? worried about protecting that, being terminated. If you wanted to come in and offer to me a letter of A. No. I told him that I was certain that being on resignation, I would probably accept it at that point. medical leave, I was not supposed to do that. It would constitute work. And I asked him if, you On January 6, Nicolini forwarded an e-mail from Wolfe know, what was so important and why he had to do regarding Arban to Colantino. In the e-mail, Nicolini stated, this right now. I was simply going to be on leave for “Below are the main issues we have regarding Dan Arban.” another week, why don’t we just wait until the end Wolfe’s e-mail, which had been created earlier that same day, of the week and then I’d be back to work and we began by stating, “You wanted an outline of events to could address whatever the reasons were then. consider in terminating Dan Arban.” The e-mail went on to describe the allegations against Arban, including Q. What did he say? “misrepresentation concerning a new firm being started,” the addition of “products to a signed contract,” double billing of A. He said no. He said, I want you to go and meet with a customer’s account, the unsolicited sending of materials to me. . . . And he said, well, you know, Dan if I have customers, and the “misrepresentation of when the trial period to, I will come to your house. We’ll do this at your would start” with respect to another client. At trial, Colantino house. I’m going to have to terminate you in front testified that he had no idea why Nicolini had sent him this e- of your own family. And I was concerned about mail. Colantino also stated that the decision to terminate that. I have small kids. Arban had been made before he received the e-mail. On January 8, Arban prepared a letter of resignation, met Nicolini When asked at trial whether it “would be a violation of the and Wolfe, and handed his letter to Wolfe, who read it and policy . . . that West had, that you couldn’t ask an employee accepted it. to do work-related services during their leave,” Wolfe responded, “If the leave were granted, yes.” On July 14, 1999, Arban filed this lawsuit against West. In October and November 2000, the case was tried before a jury. At trial, Arban described the final conversation that West timely moved for judgment as a matter of law at the occurred between himself and Wolfe on the evening of close of all the evidence, which the district court denied after January 6: the jury returned a verdict in favor of plaintiff in the amount Q. Did the subject of resignation come up? of $119,000. On March 2, 2001, the district court entered judgment in favor of Arban in the amount of $119,000 plus A. No, not at this point. What he said to me was, where $11,448.88 in interest, $85,656.73 in attorney’s fees, and do you want to meet? I said, well Bob, I know for a $8,961.87 in costs. The district court declined to award front fact I’m not supposed to be going far. He said, no pay or liquidated damages. On August 23, 2001, the district

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court denied West’s renewed motion for judgment as a matter and from § 2614(a)(1), which provides that “any eligible of law or new trial. On September 17, 2001, West filed its employee who takes leave . . . shall be entitled, on return from notice of appeal. On September 27, 2001, Arban filed his such leave (A) to be restored by the employer to the position notice of appeal. of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position.” II. The “retaliation” or “discrimination” theory arises from § 2615(a)(2), which provides that “[i]t shall be unlawful for This court reviews de novo a district court’s denial of a any employer to discharge or in any other manner motion for judgment as a matter of law. Monday v. Oullette, discriminate against any individual for opposing any practice 118 F.3d 1099, 1101 (6th Cir. 1997). This court does not made unlawful by this subchapter.” weigh the evidence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury. Instead, this court The “entitlement” or “interference” theory is derived from views the evidence in the light most favorable to the party the FMLA’s creation of substantive rights. If an employer against whom the motion is made and gives that party the interferes with the FMLA-created right to medical leave or to benefit of all reasonable inferences. The motion should be reinstatement following the leave, a violation has occurred. granted, and the district court’s decision reversed, only if King v. Preferred Technical Group, 166 F.3d 887, 891 (7th reasonable minds could not come to a conclusion other than Cir. 1999). one in favor of the movant. Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995). The issue is simply whether the employer provided its employee the entitlements set forth in the FMLA– for The FMLA entitles an eligible employee to as many as example, a twelve-week leave or reinstatement after twelve weeks of leave during any twelve-month period if the taking a medical leave. Because the issue is the right to employee has a “serious health condition that makes the an entitlement, the employee is due the benefit if the employee unable to perform the functions of the position of statutory requirements are satisfied, regardless of the such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious intent of the employer. health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st care in a hospital, hospice, or residential medical care facility; Cir. 1998). or (B) continuing treatment by a health care provider.” Id. at § 2611(11). An employee need not specifically mention the The substantive right to reinstatement provided in FMLA when taking leave. All the employee must do is notify § 2614(a)(1), however, “shall [not] be construed to entitle any the employer that FMLA-qualifying leave is needed. 29 restored employee to . . . any right, benefit, or position of C.F.R. § 825.303(b). employment other than any right, benefit or position to which the employee would have been entitled had the employee not Two distinct theories for recovery on FMLA claims exist. taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Similarly, the The “entitlement” or “interference” theory arises from right to non-interference with medical leave also is not § 2615(a)(1), which states that “[i]t shall be unlawful for any absolute. “[A]n employee who requests FMLA leave would employer to interfere with, restrain, or deny the exercise of or have no greater protection against his or her employment the attempt to exercise, any right provided in this subchapter,” being terminated for reasons not related to his or her FMLA

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request than he or she did before submitting that request.” The “Field Ride Recap” prepared after the ride also stated that Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Arban “meets expectations” in all areas. In addition, the jury Cir. 1998). An employee lawfully may be dismissed, considered an e-mail from Wolfe that Nicolini had forwarded preventing him from exercising his statutory rights to FMLA to Colantino on January 6, which stated, “You wanted an leave or reinstatement, but only if the dismissal would have outline of events to consider in terminating Dan Arban.” occurred regardless of the employee’s request for or taking of (emphasis added). While this e-mail is open to several FMLA leave. Id. interpretations, the jury was entitled to conclude that West was continuing to study the matter and had not come to a final At trial, Arban argued that West denied him his substantive decision by January 6. As the Seventh Circuit has observed, right to reinstatement and interfered with his substantive right “the timing of this decision could lead a fact finder to infer to take FMLA leave. First, with respect to Arban’s that the employee would not have been fired absent her taking reinstatement claim, Arban “must establish, by a of leave (if, for example, a supervisor who had been aware of preponderance of the evidence, that he is entitled to the problems with an employee did not decide to fire the benefit he claims.” Rice v. Sunrise Express, 209 F.3d 1008, employee until she took leave, and the supervisor based the 1018 (7th Cir. 2000). firing on the incidents of which the employer had already been aware).” Kohls v. Beverly Enters. Wisconsin, Inc., 259 [I]f the employer claims that the employee would have F.3d 799, 806 (7th Cir. 2001). In this case, while the been discharged . . . the employee, in order to establish evidence permitted differing inferences, sufficient evidence the entitlement protected by § 2614(a)(1), must, in the was presented at trial for the jury to conclude that West course of establishing the right, convince the trier of fact denied Arban his substantive right to reinstatement. that the contrary evidence submitted by the employer is insufficient and that the employee would not have been Next, with regard to his interference claim, the jury was discharged . . . if he had not taken FMLA leave. entitled to find in Arban’s favor if he presented sufficient evidence to establish that he was denied his substantive rights Id. Here, West presented considerable evidence that the under the FMLA “for a reason connected with his FMLA decision to terminate Arban had been made before Arban leave.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d went on medical leave, but that his actual termination had 955, 961 (10th Cir. 2002). “Such a reason need not be been deferred until after the holidays. While an employer has retaliation.” Id.; see also Miller v. Defiance Metal Prods., the discretion to fire an at-will employee for poor Inc., 989 F.Supp. 945, 946 (N.D. Ohio 1997) (noting that performance, at trial Arban cast doubt upon both the timing plaintiff’s termination due to absenteeism caused by a of and the reasons for the decision to terminate him. For medical condition constituted “an interference under example, the December 17 e-mail from Wolfe to Colantino FMLA”). Twenty-nine C.F.R. § 825.220(b) also explains suggests that no final decision had been reached. In that e- that “interfering with” the exercise of an employee’s rights mail, Wolfe states: “I welcome any and all feedback from my under the FMLA includes “discouraging an employee from fellow Managers to see if I have missed any major elements using [FMLA] leave.” that would allow Dan to continue. . . . If I have not been open minded to an alternative that I should consider, please let me West argues that “it is undisputed that West promptly know.” Arban also testified that following the “field ride” on granted Arban’s request for leave without any further December 21, Wolfe told Arban that he was “very satisfied.” questions” and that Arban’s “allegations are, therefore,

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insufficient to state a claim for interference.” As support for proscriptive in nature. Hodgens, 144 F.3d at 160. If the this proposition, West cites Dodgens v. Kent Mfg. Co., 955 employer is found to have retaliated against the employee for F.Supp. 560, 564 (D.S.C. 1997). In Dodgens, the court found using FMLA leave, the employer is subject to a claim for that a plaintiff employee’s claim that his FMLA rights were compensatory damages and, unless the court finds the “interfered with” when a plant manager called him twice violation occurred in good faith, additional liquidated during his medical leave and requested that he take a damages. 29 U.S.C. § 2617(a)(1)(A). demotion was not cognizable under the FMLA. West’s reliance on Dodgens is misplaced. Unlike the plaintiff in With regard to Arban’s retaliatory discharge claim, there Dodgens, who was not asked to work while on medical leave was sufficient evidence to support the jury’s conclusion that but rather to accept a demotion upon returning to work, Arban West retaliated against Arban for taking leave under the presented evidence that he was asked to continue to perform FMLA. At trial, Arban testified that during the December 21 work-related tasks while ostensibly on medical leave. Arban field ride Wolfe stated that he was “very satisfied” with testified that after notifying Wolfe of his medical leave on Arban’s performance. The “Field Ride Recap” prepared by December 28, Wolfe called him on several occasions and Wolfe also stated that Arban “meets expectations in all requested that he provide customer lists and pending sales. areas.” West does not dispute that after the field ride, Arban Moreover, Arban stated that during a January 6 conversation engaged in protected activity by taking leave pursuant to the with Wolfe, he explained that he could not meet with Wolfe FMLA, nor does West dispute that its termination of Arban because he was on medical leave, to which Wolfe responded qualifies as an adverse employment action. The evidence also that “he’s going to call [West’s disability insurance carrier] supports the jury’s finding of a causal link between Arban’s and verify or check whether or not” Arban could meet with participation in the protected activity (FMLA leave) and the him. Shortly thereafter, Wolfe called Arban and told him that adverse employment action (his termination). Although he had spoken with West’s disability insurance carrier, which “temporal proximity is insufficient in and of itself to establish had “told him, you know, supposedly, from what he said that that the employer’s nondiscriminatory reason for discharging I had to do this [meet with Wolfe].” Arban then asked him an employee was in fact pretextual,” Skrjanc, 272 F.3d at 317, whether he was being fired, and Wolfe responded that he was. the jury weighed additional evidence, including evidence of In light of this evidence, the jury was entitled to conclude that Arban’s performance appraisals and the demeanor of Arban was terminated for reasons related to his FMLA leave. witnesses on the stand. Moreover, as previously discussed, Arban testified that after notifying Wolfe that he had taken As previously mentioned, in addition to the substantive medical leave, Wolfe repeatedly called Arban at home “to get guarantees provided by the act, the FMLA also affords different accounts and pending sales he could work with.” employees protection in the event they suffer retaliation or Arban stated that Wolfe had indicated that “there was a lot on discrimination for exercising their rights under the FMLA. the line for Jim Colantino and the exclusive users” and that Specifically, “[a]n employer is prohibited from discriminating “[p]eople could win certain prizes and he wanted to make sure against employees . . . who have used FMLA leave,” nor can that everybody got as much as they could.” Arban also they “use the taking of FMLA leave as a negative factor in explained that when he told Wolfe that he “wasn’t supposed employment actions.” 29 C.F.R. § 825.220(c). This to be doing any work,” Wolfe responded with anger. Arban prohibition includes retaliatory discharge for taking leave. added that Wolfe described Arban’s failure to assist him as Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 “insubordination.” Although West argues that “Arban (6th Cir. 2001). These protections have been described as changed his story so that it appears that Wolfe was upset that

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he would not work or meet with him during his leave,” as Family and Medical Leave Act. It is also unlawful under previously explained, the jury is in a better position to judge the Family and Medical Leave Act for an employer to witness credibility than the appellate court. The record thus discharge or in any other manner discriminate against contains evidence that supports the jury’s finding that West’s any other individual for opposing any practice made explanation for Arban’s termination was disingenuous and lawful by the Family and Medical Leave Act. that the real reason was the taking of FMLA leave. *** III. In order for Plaintiff to prove that West discriminated or A district court’s disposition of a motion for a new trial is retaliated against him because he took leave, Plaintiff reviewed for an abuse of discretion. Workman v. Frito-Lay, must establish the following evidence by a Inc., 165 F.3d 460, 467 n. 7 (6th Cir. 1999). This court has preponderance of the evidence. defined an abuse of discretion as a “definite and firm conviction that the trial court committed a clear error of (1) he engaged in an activity protected by the Act; judgment.” Cincinnati Ins. Co. v. Byers, 151 F.3d 574, (2) that this exercise of his protected rights was known 578-79 (6th Cir. 1998) (quotation omitted). to the defendant; (3) that defendant thereafter took an employment action West argues that it is entitled to a new trial “based upon adverse to the plaintiff; and critical errors in the jury instructions and the verdict form.” (4) that there was a causal connection between the Specifically, West argues that “the jury was not given any protected activity and the adverse employment guidance whatsoever regarding what constitutes ‘interference’ action. under the FMLA.” West contends that the jury improperly could have found it guilty of “interference” while at the same To show such a causal connection [between the protected time “rejecting Plaintiff’s arguments that he was fired activity and the adverse employment action], Plaintiff because of his leave.” must show that the reasons given for his termination were not the true reasons, and that the true reason for his This court reviews jury instructions as a whole to determine termination was that he took a medical leave. whether they fairly and adequately submitted the issues and applicable law to the jury. Jones v. Federated Fin. Reserve In this case, West claims that Plaintiff was not terminated Corp., 144 F.3d 961, 966 (6th Cir. 1998). A party is not because of his leave, but because of misconduct. In order entitled to a new trial based upon alleged deficiencies in the to prevail on his retaliation claim, Plaintiff must also jury instructions unless the instructions, taken as a whole, are prove, by a preponderance of the evidence, that West’s misleading or give an inadequate understanding of the law. stated reason for discharging Plaintiff is not the true Id. Here, the district court’s instructions to the jury state, in reason, but merely a pretext for retaliation, which means relevant part: that the true reasons for his termination were not the reasons stated by West, but that Plaintiff took a medical Under the Family and Medical Leave Act it is unlawful leave. for any employer to interfere with, restrain or deny the exercise of or the attempt to exercise any right under the ***

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However, the plaintiff must prove by a preponderance of the FMLA cannot allow a recovery of front pay, and by not the evidence that he would not have been discharged had properly considering an award of front pay to Mr. Arban, at he not taken Family and Medical Leave Act leave. least as an alternative to reinstatement.” Upon examination of the jury instructions, West’s The issue of whether front pay is available under the FMLA arguments lack merit. The trial in this matter was bifurcated, is a question of law that this court reviews de novo. See and following the liability phase the jury answered “yes” to Gottfried v. Med. Planning Serv., 280 F.3d 684, 690 (6th Cir. the following question: “Did defendant West Publishing 2002). Although this circuit has not directly considered this Corporation violate plaintiff Daniel Arban’s rights under the question,1 other circuits have found that front pay is an Family and Medical Leave Act?” This court must presume equitable remedy available under the FMLA, as have at least that the jury followed the district court’s instructions. Weeks two district courts in this circuit. See, e.g., Diffee Ford- v. Angelone, 528 U.S. 225, 234 (2000). As previously Lincoln-Mercury, Inc., 298 F.3d at 965; see also Nichols v. discussed, Arban presented evidence sufficient for the jury to Ashland Hosp. Corp., 251 F.3d 496, 503-504 (4th Cir. 2001); find in his favor under an interference theory premised upon Churchill v. Star Enters.,183 F.3d 184, 193 (3d Cir. 1999); the denial of his substantive rights under the FMLA “for a Rogers v. AC Humko Corp., 56 F.Supp.2d 972, 978 (W.D. reason connected with his FMLA leave.” Diffee Tenn. 1999); Bryant v. Delbar Products, Inc., 18 F.Supp.2d Ford-Lincoln-Mercury, Inc., 298 F.3d at 961. The foregoing 799, 810 (M.D. Tenn. 1998). Neither the district court nor instructions ensured that the jury could not find West liable or West cites any cases to the contrary. Instead, West argues award any damages unless it found that West discharged that “the plain language of the statute does not contemplate Arban for taking medical leave – a finding that also would any future damages as an available remedy under the FMLA, support Arban’s interference claim. Since the instructions, because the language clearly identifies damages in the past taken as a whole, indicate that the jury was required to find tense.” However, West focuses solely upon the language of that the “true reason for [Arban’s] termination was that he 29 U.S.C. § 2617(a)(1)(A)(i)(I) and ignores the language of took a medical leave,” no error has been demonstrated. 29 U.S.C. § 2617(a)(1)(B), which provides for equitable remedies. Although West adds that the legislative history IV. does not contain “any discussion of, or even reference to, the availability of front pay or future damages under the FMLA,” Under the FMLA, a prevailing plaintiff is entitled to receive West has not identified any explicit prohibition against front damages in the amount of “any wages, salary, employment pay. In light of these authorities and the FMLA’s provision benefits, or other compensation denied or lost to such for equitable remedies, we find that the FMLA provides for employee” as a result of the adverse employment action. 29 front pay. U.S.C. § 2617(a)(1)(A)(i)(I). The FMLA also provides that “the employer . . . shall be liable . . . for equitable relief as may be appropriate.” 29 U.S.C. § 2617(a)(1)(B). In this case, the district court declined to submit the issue of front pay to the jury, concluding that the FMLA “does not provide 1 In an unpublished decision concerning an FMLA claim, this court for a remedy of front pay” and adding that “there is in this previously has held that “[t]he appropriateness of reinstatement and front case insufficient evidence for the question of front pay.” pay, as equitable remedies, are within the discretion of the district court.” Arban now argues that the district court erred “by ruling that Taylor v. Invacare Corp., 64 Fed. Appx. 516, 523, 2003 WL 21212674, at *6 (6th Cir. May 21 , 2003).

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While the determination of the precise “amount of an award Number two is the Court believes that there is in this case of front pay is a jury question,” the initial “determination of insufficient evidence for the question of front pay even if the propriety of an award of front pay is a matter for the it were allowed to go to the jury for the following court.” Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398 (6th reasons: Number one, is there has been really – the Cir. 1993) (ADEA claim). This court reviews the district proofs here are that in terms of loss wages, loss court’s conclusions regarding the propriety of an award of opportunity, and so forth, that there’s just not enough front pay for an abuse of discretion. See Simpson v. Ernst & evidence to go – especially on what he has made, and I Young, 100 F.3d 436, 444 (6th Cir. 1996) (ERISA claim) (“A understand that part of it had to do with the law school decision to submit the issue of front pay to the jury is and so forth, but still based upon his mitigation of committed to the sound discretion of the trial court and is damages which he has none, there is no reason that a reviewed on appeal for abuse of discretion.”). reasonable jury could believe that there’s going to be front pay, number one. Although “[r]einstatement is the presumptively favored equitable remedy,” it is not appropriate “where the plaintiff A review of the evidence presented at trial indicates that the has found other work.” Roush, 10 F.3d at 398. In this case, district court’s decision was not an abuse of discretion. Arban Arban testified that he accepted an offer to serve as a field testified that after accepting employment with Matthew sales representative for Matthew Bender, a legal publishing Bender in July or August of 1999, his compensation was company, in July or August of 1999. The fact that $45,000. Arban also explained that in 2000, he became a reinstatement is inappropriate, however, does not mean that field sales manager, a position that he agreed was “similar to an award of front pay is required. “No per se rule governs the the field sales manager position [he] had with West dating appropriateness of front pay damages in a particular case. . . . back to 1997.” Through the first eleven months of 2000, Ultimately, the question to be answered is whether front pay Arban had earned $185,000, $100,000 of which was damages are needed in a particular case to make the plaintiff attributable to the opening of a new law school in his area. whole.” Wilson v. Int’l Bro. of Teamsters, 83 F.3d 747, Arban’s earnings as an employee of West in 1998, by 756-57 (6th Cir. 1996). Several factors must be considered contrast, were $169,412. Consequently, Arban has shown no when determining the propriety of an award of front pay, damages warranting an award of front pay. including “an employee’s duty to mitigate, the availability of employment opportunities, the period within which one by Arban argues that “[a] comparison of the earned wages in reasonable efforts may be re-employed, the employee’s work 1998 to the earned wages in 2000 clearly is not proper or and life expectancy, the discount tables to determine the relevant in the determination of Mr. Arban’s front pay” and present value of future damages and other factors that are that “a legitimate comparison for calculating front pay is the pertinent on prospective damage awards.” Roush, 10 F.3d at amount Mr. Arban would have earned and the amount Mr. 399 (quoting Shore v. Federal Express Corp., 777 F.2d 1155, Arban was earning.” Arban, however, did not provide 1160 (6th Cir. 1985)). evidence by which the jury could make what he claims would be a more accurate estimate of his earnings. “A plaintiff who In this case, the district court refused to submit the issue of seeks an award of front pay must provide the district court front pay to the jury, stating: with the essential data necessary to calculate a reasonably certain front pay award.” Bruso v. United Airlines, Inc., 239 F.3d 848, 862 (7th Cir. 2001); see also Tyler v. Union Oil Co.

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of Cal., 304 F.3d 379, 402 (5th Cir. 2002) (affirming district THE COURT: – he thinks he could have made court’s denial of front pay where an award would be “purely somewhere else? speculative”). At trial, William King, Arban’s economic expert, testified as follows: THE WITNESS: Well, he had said he was going to go up thirty percent a year, and I Q. Did you come up with a number for front pay, would do so– taking the October 30 date and going forward? THE COURT: But it’s all based on what he told A. Certainly. you? Q. And what number did you come up with for that? THE WITNESS: Yes. A. One Million, Eight Hundred and Eighty-Seven Arban’s evidence regarding front pay was purely speculative. Thousand, Three Hundred Eighty-Four Dollars. On the evidence before it, the district court thus did not abuse its discretion in declining to submit the issue of front pay to Q. Now– the jury. THE COURT: Hang on. Front pay is what Mr. V. Arban told you? You didn’t do any research or anything else? Arban contends that the district court erred in failing to It’s what he said that he thinks he award liquidated damages under the FMLA. The FMLA could make or not make? provides that a court shall award liquidated damages equal to the damages due to lost compensation plus interest. 29 THE WITNESS: Well, it’s based on that and the U.S.C. § 2617(a)(iii). However, if an employer proves that it Social Security Wage Index. acted “in good faith and that the employer had reasonable grounds for believing that the act or omission was not a THE COURT: But it’s all based on what he hold violation” of the FMLA, the court may reduce the damages. you? Id. THE WITNESS: Yes. The two years at the twenty The FMLA does not explicitly define the term “good faith.” percent, and then the Social However, this court previously has turned to the Fair Labor Security Wage Index. Standards Act (FLSA), which contains similar remedial provisions, for guidance in interpreting the FMLA. Both the THE COURT: But all you did was take the FMLA and the FLSA provide that an employer “shall” be Social Security formula and add it liable for damages and liquidated damages and that the to what he told you– district court “may” reduce the amount of liquidated damages if good faith is established. See 29 U.S.C. § 216(b) THE WITNESS: Correct. (providing damages under FLSA); id. at § 260 (providing good faith defense to liquidated damages under FLSA); id. at

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§ 2617(a) (FMLA). “[T]he legislative history of the FMLA In this case, West claims that Plaintiff was not terminated reveals that Congress intended the remedial provisions of the because of his leave, but because of misconduct. In order FMLA to mirror those in the FLSA.” Frizzell, 154 F.3d at to prevail on his retaliation claim, Plaintiff must also 644 (citing S. Rep. No. 103-3, at 35 (1993), reprinted in 1993 prove, by a preponderance of the evidence, that West’s U.S.C.C.A.N. 3, 37 (“[The FMLA’s] enforcement scheme is stated reason for discharging Plaintiff is not the true modeled on the enforcement scheme of the FLSA. . . . The reason, but merely a pretext for retaliation, which means relief provided in FMLA also parallels the provisions of the that the true reasons for his termination were not the FLSA.”)). reasons stated by West, but that Plaintiff took a medical leave. Under the FLSA, a district court may not exercise its discretionary authority to reduce or eliminate a liquidated As previously noted, this court presumes that the jury damages award unless the employer first sustains its burden followed the district court’s instructions. Weeks, 528 U.S. at of proving that its “failure to obey the statute was both in 234. In finding in favor of Arban, the jury thus necessarily good faith and predicated upon such reasonable grounds that found that West made its decision because Arban “took a it would be unfair to impose upon it more than a medical leave,” not because of Arban’s misconduct. “[W]hen compensatory verdict.” Elwell v. Univ. Hosps. Home Care legal and equitable issues to be decided in the same case Servs., 276 F.3d 832, 840 (6th Cir. 2002) (quotation omitted) depend on common determinations of fact, such questions of (FLSA context). This court thus must consider whether West fact are submitted to the jury, and the court in resolving the sustained its burden. “Although in the final analysis, we equitable issues is then bound by the jury’s findings on review a district court’s decision on liquidated damages for them.” Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at 965. abuse of discretion, that discretion must be exercised In this case, the district court disregarded the jury’s finding – consistently with the strong presumption under the statute in that West’s decision to fire Arban was a result of his medical favor of doubling.” Elwell, 276 F.3d at 840 (quotation leave and not his misconduct – in considering the liquidated omitted). damages issue. Instead, the district court made its own contrary finding, which served as the basis for its denial of The district court found that West acted in good faith liquidated damages. This was error. The district court thus because “they made their decision even before the medical abused its discretion when it denied Arban liquidated leave was – the Family Medical Leave Act request was even damages. put in. They wanted to delay it because of the holidays.” However, as previously noted, the district court’s instructions VI. to the jury specifically state: In its April 26, 2001, order, the district court granted To show such a causal connection [between the protected West’s motion for stay of execution of the judgment “pending activity and the adverse employment action], Plaintiff the disposition of post-trial motions and, if necessary, during must show that the reasons given for his termination appeal.” Arban now argues that for West to obtain a stay of were not the true reasons, and that the true reason for his execution of the judgment, West must give a supersedeas termination was that he took a medical leave. bond pursuant to Fed. R. Civ. P. 62(d). This court reviews a district court’s denial of a supersedeas bond for an abuse of

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discretion. Kennedy v. Uniroyal Pension Plan, 937 F.2d 608, 1991 WL 134613, at **8 (6th Cir. 1991) (unpublished). Rule 62(d) entitles a party who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right. Federal Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980) (citing Am. Mfr. Mut. Ins. Co. v. Am. Broad. Paramount Theatres, Inc., 385 U.S. 931 (1966)). However, “the Rule in no way necessarily implies that filing a bond is the only way to obtain a stay. It speaks only to stays granted as a matter of right, it does not speak to stays granted by the court in accordance with its discretion.” Id. Arban claims that West must make “at least a showing that it has adequate resources to satisfy the bond.” West has done so here. At the hearing on West’s motion for stay without bond on April 25, 2001, counsel for West stated that “the revenues of the group of which West is a part is approximately 2.5 billion.” The Seventh Circuit has noted that “an inflexible requirement of a bond would be inappropriate . . . where the defendant’s ability to pay the judgment is so plain that the cost of the bond would be a waste of money.” Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986). In light of the vast disparity between the amount of the judgment in this case and the annual revenue of the group of which West is a part, the district court’s decision to grant a stay without a bond was not an abuse of discretion. VII. For all of the foregoing reasons, we affirm the district court’s denial of West’s motion for judgment as a matter of law or for a new trial, reverse and remand the trial court’s denial of an award of liquidated damages, affirm the district court’s denial of Arban’s claim for front pay, and affirm the district court’s grant of a stay without bond.