On March 27, 2013, the Eighth Circuit upheld an FMLA award but reversed pat of the award to the employee for front-pay as overly speculative.
In Dollar v. Smithway Motor Xpress, the district court found in favor of the plaintiff and awarded back pay, front pay, and liquidated damages. The Eighth Circuit court rejected defendant's challenges to the district court's finding of liability. Even if defendants did not waive the affirmative defense of failure to mitigate damages, the court agreed with the district court's alternative holding that plaintiff's efforts to secure other employment were reasonable. The Eighth Circuit vacated the award of front pay as overly speculative but affirmed the district court's judgment in all other respects.
In this case Dollar suffered from depression and was even treated at the emergency room. She had doctor's notes that indicated she was being treated for depression and could not return to work. Her employer did not tell her about her eligibility for FMLA protected leave or rights to FMLA protected time off. Her employer also did not keep her job open for her while she was being treated. She was fired for missing too many days of work.
In a detailed written opinion, the district court rejected Dollar's retaliation claim. The court held, however, that Dollar was a qualified employee entitled to FMLA leave. The court found Dollar's repeated and conspicuous presentation of medical excuses and her detailed interactions with Kellet and Nelson were an
adequate assertion of FMLA rights. The court concluded that Smithway interfered with Dollar's exercise of FMLA rights by terminating her with knowledge of her serious medical condition.
Front Pay
The court considered evidence of Dollar's pre- and post-Smithway earnings and awarded backpay to the date of the judgment in the amount of $80,793. The court awarded statutory liquidated damages in the same amount. The court also awarded front pay for a period of ten years in the amount of $134,526. The court rejected reinstatement as infeasible and did not include a multiple of front pay in the statutory liquidated damages award.
In determining front pay, the court noted that it was Dollar's burden to prove her entitlement to front pay to a reasonable degree of certainty and Smithway's burden to prove any failure to mitigate damages. The court found, however, that Smithway had not pleaded the affirmative defense of failure to mitigate damages and therefore had waived the issue. The court found in the alternative that even if Smithway had not waived the affirmative defense, Dollar, in fact, acted reasonably in seeking replacement employment and did not fail to mitigate her damages.
The district court determined that, as of the time of its judgment—more than three and one half years following Dollar's termination—Dollar was entitled to back pay representing compensation through the date of judgment. The court also determined she was entitled to front pay for a future period of ten years. Given
changes in the Iowa operations of the defendants and/or their owner or successor, given the substantial reduction in force that occurred in Iowa between Dollar's termination and trial, and given the important fact that Dollar was untested and inexperienced in the position of driver recruiter, any award of front pay in this case involved an impermissible degree of speculation.
Front pay is an equitable remedy courts may award when it is determined reinstatement is no longer feasible, and awards of front pay are substitutes for reinstatement. See Sellers v. Mineta, 358 F.3d 1058, 1063 (8th Cir. 2004) ("Front pay is a disfavored remedy that may be awarded in lieu of reinstatement, but not in addition to it, where the circumstances make reinstatement impractical."). Awards of front pay are always at least partially speculative as they necessarily rest upon predictions and assumptions about a plaintiff's longevity, the likely duration of any future employment, the continued viability of the employer, ongoing efforts at mitigation, and countless other factors. See Mathieu v. Gopher News Co., 273 F.3d 769, 782 (8th Cir. 2001) ("An award of front pay also is inherently speculative in length of time and when considering possible mitigation by reason of other employment. It is based on probabilities rather than actualities."). The Eighth Circuit reviews an award of front pay for abuse of discretion and do not mean to suggest that some unattainable degree of metaphysical certainty is required in order to justify an award of front pay. Christensen, 481 F.3d at 1098. Some degree of speculation is inescapable, but the Eighth Circuit has recognized limits to the amount of speculation that such an award may embody. See, e.g., United Paperworkers Int'l Union, AFL-CIO, Local 274 v. Champion Int'l Corp., 81 F.3d 798, 805 (8th Cir. 1996).
Finally, and importantly, the Eighth Circuit noted that because front pay is an equitable remedy, it is appropriate to consider all of the circumstances of a case to assess whether an award is appropriate. See id. at 322 (emphasizing that "front pay is an equitable remedy[,]" "the court must avoid granting the plaintiff a windfall[,]" and "the trial court must consider many complicated factors in deciding whether to award front pay." ). Here, the transfer to the position of driver recruiter in and of itself was an attempt to address attendance concerns, and Dollar admitted she did not view the transfer as an adverse or negative action. The transfer was not necessarily required by the FMLA. As a result, Dollar's case presents a strange situation. The employer willfully interfered with the employee's FMLA rights, but the employer's own 3 arguably laudable earlier attempts to accommodate the employee were the very acts that made possible the underlying recovery of back pay and liquidated damages. The defendants simply were not required to reinstate Dollar to the position of driver manager, a position she admits she would not have been able to perform. Spangler, 278 F.3d at 851 ("If [an employee] had a serious health condition which made her unable to perform her job and if she made a valid request for FMLA leave, upon the expiration of her leave, the [employer] would be under no obligation to reinstate her if she remained unable to perform the essential functions of her position."). As such, the finding that defendants actually transferred Dollar to the position of driver recruiter prior to her termination—a position the court found she could have performed upon return from leave—was vital to the attachment of any liability in this case. Given the equitable nature of the front-pay remedy and the peculiar facts of the present case, the Eighth Circuit believed it was particularly important to guard against an overly speculative award in this context. Accordingly, the Eighth Circuit vacated the award of front pay but affirm the carefully articulated judgment of the district court in all other respects.
Retaliation, Interference, and Accommodation
"Under the FMLA, employers are prohibited from interfering with, restraining, or denying an employee's exercise or attempted exercise of any right contained in the FMLA." Quinn v. St. Louis Cnty., 653 F.3d 745, 753 (8th Cir. 2011). Interference claims cover "'not only refusing to authorize FMLA leave, but discouraging an employee from using such leave,' as well as 'manipulation by a covered employer to avoid responsibilities under [the] FMLA.'" Id. (alteration in original) (quoting 29 C.F.R. § 825.220(b)). Termination in response to a qualifying employee's assertion of rights may qualify as interference. See Phillips v. Mathews, 547 F.3d 905, 914 (8th Cir. 2008) ("The termination of an employee for exercising rights under the FMLA could be viewed as actionable under § 2615(a)(1) as a denial of the employee's right under 29 U.S.C. § 2614(a) to be restored to an equivalent position upon return from FMLA leave.").
Here, Dollar admits that she could not have performed the functions of the driver-manager position even after she was medically approved to return to work. Dollar asserts, however, that she could perform the functions of driver recruiter. Smithway does not argue Dollar would have been physically or mentally unable to perform the job of driver recruiter after July 2007. Instead, Smithway argues Dollar never accepted or held the position of driver recruiter, and because Dollar could not have performed the functions of her old position, driver manager, Smithway in no way interfered with Dollar's FMLA rights. By extension, Smithway argues any liability based upon a failure to permit Dollar to work as a driver recruiter after July 2007 impermissibly reads a duty of reasonable accommodation into the FMLA. Smithway does not present any other meaningful challenges to the underlying finding of FMLA liability.
The Eighth Circuit noted that Smithway is correct that, unlike the Americans with Disabilities Act, the FMLA does not impose a duty of reasonable accommodation. Rather, the FMLA requires a qualifying employer to grant a qualifying employee twelve weeks of leave in a twelve month period if the employee suffers "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). In addition, the FMLA requires the employer to reinstate the employee to her original position or to an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment," 29 U.S.C. § 2614(a)(1)(B), following any such period of leave. Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 851 (8th Cir. 2002). While not a duty to provide reasonable accommodation, the FMLA duty of restoration clearly and expressly broadens the employer's obligation beyond a narrow focus solely on the actual position held by the employee before onset of the serious health condition and extends to equivalent positions. See id. (comparing and contrasting the ADA and the FMLA and noting that the FMLA does not require employers to restore employment following leave if "'the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition'" (quoting Reynolds v. Phillips & Temro Indus., Inc., 195 F.3d 411, 414 (8th Cir. 1999))).
If you have been denied FMLA benefits, or were not even told that you were eligible for protected time off, you should contact Madathil Law Office for a free consultation.
Madathil Law Office, LLC
Nebraska Employment Attorney
1625 Farnam Street #830
Omaha, NE 68102
angela@madathil-law.com
T: 402.577.0686
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