UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROSEMARY CROMICH MCDONNELL,

Plaintiff-Appellant,

v. No. 96-1661

MILLER OIL COMPANY, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, Senior District Judge.

(CA-95-638-2)

Argued: March 3, 1997

Decided: April 3, 1997

Before RUSSELL, WILKINS, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jack Elmer Ferrebee, Virginia Beach, Virginia, for

Appellant. Stanford Beryl Adler, ADLER, ROSEN & PETERS, P.C.,

Virginia Beach, Virginia, for Appellee. ON BRIEF: Lisa Ehrich,

ADLER, ROSEN & PETERS, P.C., Virginia Beach, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Rosemary Cromich McDonnell appeals the district court's disposition of her Family Medical Leave Act of 1993 ("FMLA")1 claim

brought against her former employer, Miller Oil Co.("Miller Oil"). At

trial, McDonnell argued that when she returned from maternity leave,

Miller Oil did not make available to her the same or an equivalent

position.2 The jury found that Miller Oil violated the FMLA, but fixed

McDonnell's damages at $0.00. She moved for a partial new trial on

the issue of damages, which the district court denied. McDonnell

appeals.

I.

McDonnell was a financial analyst with Miller Oil until December

1994, when she left on maternity leave. Her leave ended in February

1995. McDonnell testified that when she returned to Miller Oil, she

was told that "she no longer had a job at Miller Oil." On the other

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1 The FMLA requires certain employers to allow employees up to 12

weeks of leave for attending to family medical situations, including pregnancy. 29 U.S.C.A. § 2601-2618 (West Supp. 1996).

2 The FMLA establishes that

any eligible employee . . . shall be entitled, on return from such

leave--

(A) to be restored by the employer to the position of employment held by the employee when leave commenced; or

(B) to be restored to an equivalent position with equivalent

employment benefits, pay, and other terms and conditions of

employment.

Id. § 2614(a). Employees are allowed to sue employers who violate the

FMLA. Id. § 2617.

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hand, Mike Miller, her supervisor, testified that McDonnell told him

she did not want her old job back, and that she asked to return to work

part-time, but refused the part-time positions he offered. Miller further testified that he and McDonnell agreed to call the separation a

lay-off, so that McDonnell would qualify for unemployment benefits

from the Virginia Employment Commission ("VEC").

At the close of evidence, the jury returned a verdict in favor of

McDonnell. The jury found that Miller Oil violated her rights under

the FMLA by failing to offer her the same or an equivalent job at the

end of her maternity leave. However, the jury fixed her damages at

$0.00. Evidence presented at trial established that McDonnell failed

to regularly read the help wanted ads in the newspaper; never contacted employment agencies; failed to apply for a job referred to her

by the VEC (thus forfeiting one week's unemployment compensation); and never contacted the placement offices at either the College

of William and Mary, where she earned an MBA in finance, or Old

Dominion University, where she received her undergraduate degree.

Other evidence at trial showed that during the eleven-month period

from February 1995 until the trial, McDonnell sent out between 80

and 100 resumes. She mailed the resumes without cover letters, and

simply addressed them to the personnel departments of companies in

her area, sometimes without even knowing if the company was hiring.

After the jury was excused, the district court announced its intention to award nominal damages of $1.00. McDonnell stated she would

move for a judgment as a matter of law3 or a partial new trial on the

issue of damages,4 and so the district court delayed entering judgment.

The district court informed McDonnell that it would not entertain

argument on her plea for equitable relief until the motion for judgment as a matter of law was decided. Thereafter, McDonnell formally

withdrew that motion, and submitted no further argument. The district

court then acted on the remaining issues in the case. It found the

defendant had acted in bad faith, and awarded liquidated damages of

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3 Fed. R. Civ. P. 50(a).

4 Fed. R. Civ. P. 59.

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$1.00, doubling McDonnell's damages award to $2.00, plus interest.

It also declined to award McDonnell front pay. McDonnell then filed

a motion for a partial new trial on damages, which the court denied.

II.

McDonnell's appeal raises three issues. First, she contends that the

jury's award of no damages was a miscarriage of justice or against the

clear weight of the evidence, requiring a new trial. Second, she claims

that the district court improperly instructed the jury on her duty to

mitigate her damages. Finally, she claims the district court erred in

refusing to grant her equitable relief in the form of front pay and reinstatement. All of these issues were encompassed in her motion for a

partial new trial on the issue of damages, and fully considered by the

district court. Our review, therefore, is limited to whether the district

court abused its discretion in denying McDonnell's motion for a new

trial.5

In its opinion and order denying the partial new trial, the district

court found that the evidence supported the jury's award of no damages, and that the award was not a miscarriage of justice. It further

found that the submitted jury instruction did not constitute plain or

fundamental error, and that McDonnell failed to challenge the instruction at trial. Furthermore, the record revealed that McDonnell's counsel specifically agreed to the language of the instruction. Finally,

McDonnell testified that she did not wish to be reinstated, and she

never requested reinstatement. Left with front pay as the only equitable remedy, the district court did not award front pay for two reasons.

First, reinstatement is the preferred equitable remedy.6 Second, the

district court found McDonnell's subjective unwillingness to accept

reinstatement to be unreasonable.

Having carefully reviewed the record, we hold that the district

court did not abuse its discretion in denying McDonnell's motion for

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5 Chesapeake Paper Products Co. v. Stone & Webster Eng'g Co., 51

F.3d 1229, 1237 (4th Cir. 1995).

6 Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir. 1991).

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a partial new trial on the issue of damages. Accordingly, we affirm

the judgment of the district court.

AFFIRMED

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