FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 1, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-14972 

 ________________________

 D.C. Docket No. 0:08-cv-60648-JAL

LYNN YUK CHUN WAI, 

llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,

 versus

FEDERAL EXPRESS CORPORATION, 

FEDEX CUSTOMER INFORMATION SERVICES, INC., 

llllllllllllllllllllllllllllllllllllllll Defendants - Appellants.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(March 1, 2012)

Before DUBINA, Chief Judge, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
Federal Express Corporation (“FEC”) and FedEx Customer Information

Services, Inc., (“FCIS”) (collectively “FedEx”) appeal the district court’s denial of

their motion for a new trial and renewed motion for judgment as a matter of law

after a jury verdict in favor of Lynn Yuk Chun Wai (“Wai”) in an action brought

pursuant to the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et

seq. FedEx raises three issues on appeal. First, FedEx argues that there was

insufficient evidence for the jury to reasonably conclude that Wai provided

adequate notice to alert FedEx that she had a potential FMLA-qualifying event. 

Second, FedEx argues that the district court erred in upholding the jury’s $225,000

damages award because the award is not supported by the law and is against the

clear weight of the evidence. Finally, FedEx argues that the district court erred in

including front pay in its award of liquidated damages. For the reasons set forth

below, we affirm in part and reverse in part. 

I.

Wai was employed by FexEx as a customer service representative from

February 1996 until July 2006. In May and June of 2006, Wai attended four

medical appointments to determine whether a nodule on her thyroid and certain

suspicious masses were cancerous. Subsequently, on July 19, 2006, FedEx

terminated Wai from her employment, after she had received her third disciplinary

2
letter within a twelve-month period. 

1

At trial, Wai’s supervisor, Urvashi Purohit (“Purohit”) testified to FedEx’s

policy regarding family medical leave and her knowledge of Wai’s medical

concerns. Purohit testified that it was FedEx’s policy to give an employee

paperwork to complete when requesting family medical leave, and that FedEx had

not given Wai the appropriate paperwork following Wai’s medical appointments. 

As to Purohit’s knowledge of Wai’s medical issues, she testified that Wai had

inquired about whether her appointments fell under the FMLA, that she knew Wai

was going to an appointment because of a thyroid problem, and that she learned

that Wai had certain suspicious lumps because Wai notified her of an appointment

with a surgeon. Additionally, Purohit acknowledged that, in a May 10, 2006

email, the point person for the FMLA stated that Wai’s appointments were “not

yet an FMLA issue.” Therefore, Purohit had advised Wai that she should obtain

forms from another manager for “preapproved preauthorized premedical leave,” a

type of leave used for surgeries not covered under the FMLA. 

Furthermore, Wai herself testified at trial to Purohit’s knowledge of her

 Under FedEx’s policies, all employees are required to maintain an attendance level of 1

96.9 percent or higher, and an employee is terminated if she receives three warning letters or

performance reminders within a rolling twelve-month period. In the process of terminating Wai,

FedEx calculated Wai’s attendance percentage at 96.7 percent, which included the four medical

visits. 

3
medical problems and the reason she did not complete the FMLA forms. Wai

testified that she was open with Purohit and told her about her ongoing medical

concerns and any medical appointments that she was trying to schedule. She also

testified that she had asked Purohit whether her medical problems were covered

under the FMLA, and that Purohit had informed her that the absences were not

covered. Nevertheless, Wai testified that she continued to seek medical attention

because she was concerned that she had cancer. 

Wai also testified to the damages she suffered as a result of her termination. 

First, she testified to her medical and retirement benefits while working at FedEx. 

Her benefits with FedEx included a medical plan with vision, dental, and

prescription coverage. She recalled that this plan was covered by a premium of

$30 per week that was deducted from her paycheck. As to her retirement benefits,

she testified that she had a 401(k) and retirement plan at FedEx; was 47 years old;

and would have been eligible for (1) a pension after retirement at age 55 or age 60,

and (2) an extension of her medical benefits until Medicare coverage began. Next,

she testified to the difference between her income at FedEx and her income

thereafter. During her employment with FedEx, she earned $36,265 per year, plus

benefits. Following her termination in July 2006 from FedEx, she found a job as a

vacation planner for Carnival Cruise Lines (“Carnival”) in August or September of

4
2006. Wai testified that her Carnival base salary was between $11,000 and

$13,000 per year. Wai’s income tax return for 2006 showed total income of

$16,171 for that year. Of that amount, $8,583.23 is attributable to a W-2 from

FCIS.

2

However, Wai testified that she left Carnival in January 2007 due to a long

commute and the low pay. She subsequently took a job as a restaurant waitress. 

There, she made $27,000 per year and paid about $44 per week in premiums for a

health insurance plan. She did not have a retirement plan while working as a

waitress. 

Before the close of evidence, both parties moved for relief. FedEx orally

moved for judgment as a matter of law, arguing, in part, that no proper notice was

given to FedEx that Wai’s condition warranted FMLA leave, and that Wai had not

met her burden to show that she was entitled to FMLA leave. Wai also moved

orally for judgment as a matter of law, arguing, in part, that FedEx knew Wai was

going to see a surgeon, and therefore FedEx had knowledge sufficient to place it

on notice of a potential FMLA issue. The district court denied both motions. As

 FedEx contends that, because Wai’s income tax return for 2006 showed total income 2

for that year of $16,171, and $8,583.23 is attributable to a W-2 from FCIS, the remaining income

is attributable to Carnival. However, the evidence showed that, in 2006, Wai’s employer

changed from FedEx to FCIS and that Wai’s total 2006 earnings would have also included

earnings from FedEx. 

5
to the issue of notice, the court found that there was sufficient evidence for it to be

a proper question for the jury. The court also found that the issue of Wai’s

eligibility for FMLA leave was a proper factual issue for the jury. 

At the close of evidence, both parties renewed their motions for judgment as

a matter of law, and the court denied the same. In instructing the jury as to

damages, the court stated that, if the jury were to find lost pay or benefits by a

preponderance of the evidence, then Wai could recover damages for the net pay or

benefits lost between the time of her termination and the date of the verdict. 

The jury found in favor of Wai. Specifically, it found that Wai had proved

by a preponderance of the evidence that she was entitled to FMLA leave; gave

proper notice to FedEx of the need to be absent from work; and that she was

terminated because she took FMLA leave. The jury awarded Wai $225,000 in

damages against FedEx, without differentiating how it had calculated those

damages. The court entered judgment in favor of Wai in the amount of $225,000,

and noted that Wai reserved the right to seek attorney’s fees and other costs. 

Wai thereafter moved to amend the judgment to include prejudgment

interest and liquidated damages. Wai argued she was entitled to liquidated

damages because FedEx did not conduct a good-faith investigation of her potential

eligibility for FMLA leave. She requested liquidated damages in the amount of

6
$236,030.36, based on a sum of actual damages of $225,000 and the prejudgment

interest of $11,030.36. FedEx responded that it had a reasonable basis for denying

Wai FMLA leave and did so in good faith. FedEx, however, did not object to the

calculation of prejudgment interest. The court awarded Wai prejudgment interest

in the amount of $11,030.06, and awarded liquidated damages in the amount of

her $225,000 jury award plus prejudgment interest, totaling $236,030.36. 

FedEx moved for a new trial or to amend the judgment, or in the alternative,

for remittitur. FedEx argued that the jury’s award of $225,000 was grossly

excessive, and that the jury’s finding that FedEx had received notice of Wai’s need

for FMLA leave was against the great weight of the evidence. The district court

denied the motions, finding that Wai presented sufficient proof upon which a

reasonable jury could find in her favor on the essential elements of her FMLA

claims. This appeal ensued. 

II. 

We review de novo a district court’s denial of a motion for judgment as a

matter of law. Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1210 (11th Cir.

2010) (citation omitted). We review all evidence in the record and draw all

reasonable inferences in favor of the non-moving party. Id. at 1211 (citation

omitted). We review the district court’s denial of a motion for a new trial and the

7
denial of a motion for remittitur for abuse of discretion. Lambert v. Fulton Cnty.,

Ga., 253 F.3d 588, 595 (11th Cir. 2001) (citing McWhorter v. City of

Birmingham, 906 F.2d 674, 677 (11th Cir. 1990)); Brown v. Ala. Dep’t of Transp.,

597 F.3d 1160, 1173 (11th Cir. 2010) (citation omitted) (stating that a district

court’s denial of a motion for remittitur is reviewed for a clear abuse of

discretion). Similarly, we review the district court’s decision to award liquidated

damages for abuse of discretion. Cooper v. Fulton Cnty., Ga., 458 F.3d 1282,

1287-88 (11th Cir. 2006).

III.

The FMLA provides eligible employees the right to take up to 12 work

weeks of unpaid leave per year for any one or more of several reasons. One of

those reasons is relevant here: “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). The FMLA further protects the employee’s right to be reinstated to

their former position or to an equivalent position upon return from leave. 29

U.S.C. § 2614(a)(1)(A)-(B). The FMLA states that, when the necessity for leave

is foreseeable, the employee “shall provide the employer with not less than 30

days’ notice, before the date the leave is to begin, of the employee’s intention to

take leave . . . .” 29 U.S.C. § 2612(e)(2)(B). 

8
To protect an employee’s rights, the FMLA created two types of claims:

“interference claims, in which an employee asserts that his employer denied or

otherwise interfered with his substantive rights under the Act, and retaliation

claims, in which an employee asserts that his employer discriminated against him

because he engaged in activity protected by the Act.” Strickland v. Water Works

& Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)

(internal citations omitted). To establish an interference claim, “an employee must

demonstrate that he was denied a benefit to which he was entitled under the

FMLA.” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir.

2008) (citations omitted). On the contrary, to establish a retaliation claim, “an

employee must show that his employer intentionally discriminated against him for

exercising an FMLA right.” Id. (citations omitted). 

Wai alleged both of these claims in her complaint, but the verdict provided

the jury only with the claim of retaliation. Under a heading entitled “Retaliation,”

the verdict form stated two questions, both of which went solely to that claim: (1)

“Has Ms. Wai proven that her employment was terminated because of a request for

FMLA leave?”; and (2) “Has Ms. Wai proven that her employment was terminated

because she took FMLA leave?” (R.3 at 100). Neither question was directed

towards Wai’s interference claim, and therefore we consider that issue mooted. 

9
However, the jury did find that Wai was terminated because she took FMLA

leave. FedEx does not now contest the jury’s finding regarding retaliation. 

Instead, FedEx contests only its notice under the FMLA and Wai’s subsequent

damages. 

IV.

We first address FedEx’s arguments relating to notice. FedEx argues that

Wai did not provide notice of any FMLA-qualifying event because her statements

were general in nature and she admitted that she did not recall specifics of what

she told FedEx about her absences. FedEx further argues that, because Wai

provided them notice from her physicians authorizing her to return to work

without restrictions, it had no need to consider any FMLA-qualifying event. 

In order to establish a violation of the FMLA, notice must be “sufficient to

make the employer aware that the employee needs FMLA-qualifying leave, and

the anticipated timing and duration of the leave.” Cruz v. Publix Super Mkts. Inc.,

428 F.3d 1379, 1383 (11th Cir. 2005) (citing 29 C.F.R. § 825.302(c)). The notice

need not be in writing or refer specifically to the FMLA. See 29 C.F.R. §

825.302(b)-(c). From there, when the employee “gives sufficient notice to her

employer that potentially FMLA-qualifying leave is needed, the employer must

then ascertain whether the employee’s absence actually qualifies for FMLA

10
protection.” Cruz, 428 F.3d at 1383 (citing Strickland, 239 F.3d at 1209 (citing 29

C.F.R. § 825.303(b))). 

The evidence in the record is clearly sufficient for the jury to have found

that Wai presented FedEx with adequate notice of her potential qualification for

FMLA leave. As previously stated, Purohit gave extensive testimony as to her

knowledge of Wai’s medical concerns and appointments. Purohit testified that

Wai inquired about whether her appointments fell under the FMLA, that she knew

Wai was going to an appointment because of a thyroid problem, and that she

learned that Wai had certain suspicious lumps because Wai notified her of an

appointment with a surgeon. Purohit also advised Wai that she should obtain

forms from another manager for “preapproved preauthorized premedical leave,” a

type of leave used for surgeries not covered under the FMLA. Therefore,

discussions about Wai’s potential eligibility for FMLA leave were ongoing. 

Testimony by the senior human resources representative, Kimberly McBrayer,

shows that it was Purohit’s job as manager to give employees FMLA forms to

complete under appropriate circumstances. Purohit never gave those forms to

Wai, despite ample notice of Wai’s potential need.

Furthermore, Wai testified to being“very open” with Purohit and to sharing

specific details about certain medical procedures. She informed Purohit of any

11
diagnostic tests before scheduling them, and asked FedEx whether her

appointments were covered under the FMLA, specifically asking, “Shouldn’t I be

able to go to the doctor and get these tests done and the mammogram done and the

lab work done? Isn’t all that covered under FMLA?” (R.5 at 94). Also included

in evidence was an email from Wai to Purohit telling her that she had an

appointment with a surgeon, to which Purohit responded in part by telling Wai to

“focus on your health and recovery.” (R.4 at 134). Moreover, Wai testified that

Purohit saw her come to work after one particularly painful procedure, where

Wai’s body had swelled up, she was barely able to talk, and she had a large

bandage on her neck. Nonetheless, Wai was never given FMLA forms to

complete and was instead told that her appointments were not covered. Any of the

above examples are indicators that an individual is going through serious medical

procedures that would, at the very least, warrant further inquiry as to whether

FMLA leave is available. 

In support of their argument to the contrary, FedEx cites to Gay v. Gilman

Paper Co., 125 F.3d 1432 (11th Cir. 1997). In Gay, the employee was hospitalized

for a nervous breakdown, but the employee’s husband told the employer that she

was having “some tests run.” 125 F.3d at 1433. The Gay Court deemed that to be

insufficient notice to trigger the employer’s burden to request further information. 

12
Id. Similarly, in Cruz the plaintiff told her employer that she required leave

because her daughter was in labor and needed her help because her daughter’s

husband had broken his collar bone. 428 F.3d at 1381. There, we held that the

employee’s notice was insufficient to shift the burden to the employer to request

further information. Id at 1380.

Unlike the above-cited cases, however, the evidence presented here was

sufficient to put FedEx on notice. Unlike the plaintiffs in Cruz and Gay, Wai did

not withhold information from her employer. She was transparent with her

supervisor about the medical tests being performed and her need to take time off

for those tests. Nor did she try to mislead her employer as to the reasons why she

needed to take time off or downplay her circumstances. She was open and

forthright and provided her employers with as much information as she had

available to her on the procedures she was enduring, which made her fully

compliant with FMLA notice requirements. Finally, despite the fact that Wai was

not required to reference specifically the FMLA to provide sufficient notice, she

did so, which further supports the jury’s finding that notice was adequately given. 

See 29 C.F.R §§ 825.302(c), 825.303(b). 

FedEx’s argument that neither Purohit nor FedEx’s other supervisors were

on notice as to the full details of Wai’s conditions improperly construes the

13
evidence in a light favorable to FedEx, the moving party. Here, FedEx was on

notice of Wai’s potential eligibility and should have conducted a reasonable

investigation into whether her appointments were eligible for FMLA coverage. 

FedEx’s argument that Wai’s doctors’ notes refuted her eligibility for FMLA

leave, and therefore satisfied its responsibility to investigate, is without merit. 

Wai kept her supervisors informed about her medical issues throughout the time

they persisted. This notice, along with the notice of her many medical

appointments, should have alerted FedEx that it needed to conduct further

investigation into whether Wai was eligible for FMLA leave. Therefore, we

affirm the jury verdict as to liability and affirm the district court’s denial of

FedEx’s renewed motion for judgment as a matter of law.

V. 

We next address FedEx’s arguments relating to damages. FedEx first

argues that the $225,000 damage award is excessive because the award is contrary

to law and against the clear weight of the evidence. Specifically, FedEx argues

that the damage award is contrary to law because front pay is an equitable remedy

for the court to award, and the jury instructions did not give the jury the authority

to award front pay. FedEx also argues that the award is not supported by the

evidence because (1) Wai did not testify to the value of the benefits on her lost

14
wages, and (2) Wai failed to establish she was entitled to back pay for past lost

wages. Finally, FedEx argues that the district court erred in including front pay in

its award of liquidated damages.

Wai responds, in part, that FedEx waived its argument that the court should

have determined front pay by failing to make that argument before the district

court. Wai further argues that FedEx waived its argument relating to liquidated

damages because it only argued that liquidated damages should not be awarded

when FedEx acted in “good faith.” 

1. Waiver 

As an initial matter, FedEx preserved its argument that the jury was not

permitted to award front pay. FedEx argued in its motion for a new trial or to

amend the judgment that the jury was instructed to only award damages from the

time of the adverse employment decision until the date of the verdict. This was

sufficient to preserve the issue. 

3

Although defense counsel failed to object during final argument to Wai’s counsel’s 3 

statements relating to front pay, the failure to object does not constitute a waiver here because the

jury was required to follow the instructions on the law given by the trial judge. Ash v. Tyson

Foods, Inc., 664 F.3d 883, -- (11th Cir. 2011) (stating that this Court presumes juries follow the

instructions given to them). Further, the district court instructed the jury that what lawyers say in

a case is not evidence, that they are to decide the facts on the evidence in the case, and that they

are to follow the law as given to them by the court. The jury was required to follow these

instructions. Id. 

15
Further, FedEx preserved its argument that the district court improperly

included front pay in its liquidated damages award. Soon after Wai’s motion for

liquidated damages, FedEx moved for a new trial. As stated above, FedEx argued

the issue of front pay in that motion. Subsequently, FedEx responded to Wai’s

motion for liquidated damages. However, when FedEx responded to that motion,

it had yet to receive a ruling from the district court on its motion for a new trial. 

Although FedEx only argued in its response to Wai’s motion for liquidated

damages that it had acted in good faith when denying Wai FMLA leave, it did not

waive this issue due to the timing of the district court simultaneously ruling on

FedEx’s motion for a new trial and Wai’s motion for liquidated damages. This

was done in an Omnibus Order some nine months later. FedEx preserved the issue

by continually raising it and there was no waiver. 

2. Damages

Turning to the merits, the jury’s award of $225,000 is not supported by the

law or the evidence. Under the FMLA, any employer who interferes with an

employee’s protected rights under the Act is liable to the employee for “damages”

and “equitable relief.” 29 U.S.C. § 2617 (a)(1)(A)-(B). The FMLA divides these

remedies into two subsections. Id. The first subsection allows “damages” for

“wages, salary, employment benefits, or other compensation denied or lost . . . .” 

16
29 U.S.C. § 2617(a)(1)(A)(i)(I). That subsection also covers non-wage monetary

losses, interest, and liquidated damages. 29 U.S.C. § 2617(a)(1)(A)(i)(II)-(A)(iii). 

The second subsection provides for “equitable relief as may be appropriate,

including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B). 

An award of front pay is not included in the enumerated damages under the

first subsection. 29 U.S.C. § 2617(a)(1)(A). Nonetheless, a court may award front

pay as a form of equitable relief where reinstatement is not feasible. U.S. 4

E.E.O.C. v. W&O, Inc., 213 F.3d 600, 618-19 (11th Cir. 2000) (decided in the

context of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)). Thus, an

award of front pay “is derived solely from the statutory provision permitting the

court to award ‘such equitable relief as may be appropriate.’” Traxler v.

Multnomah Cnty., 596 F.3d 1007, 1012 (9th Cir. 2010) (quoting 29 U.S.C. §

2617(a)(1)(B)).

Here, any award of damages by the jury relating to front pay was error

because the jury instructions in this case explicitly limited the jury’s authority to

assessment of damages in the past (up to the date of the verdict). In instructing the

jury, the district court stated that if the jury were to find lost pay or benefits by a

 Because of the relative dearth of case law in our circuit relevant to front pay as an 4

alternative to reinstatement under the FMLA, we herein cite cases decided under other

employment discrimination statutes relevant to the FMLA. 

17
preponderance of the evidence, Wai could recover damages for the “net pay or

benefits shown by the evidence to have been lost from the time of implementation

of [FedEx’s] employment decision which violated the FMLA until the date of [the] 

verdict.” Such a limitation is unequivocally a reference to past lost wages and

benefits. The jury’s verdict, however, awarded front pay. Accordingly, the jury’s

5

verdict of $225,000 in damages is contrary to the court’s instructions and the law

and must be vacated. 

Furthermore, the jury’s award of $225,000 is against the clear weight of the

evidence. There are two constituent parts to a back pay award. 29 U.S.C. §

2617(a)(1)(A)(i)(I). The first is determined by the difference between the actual

wages earned and the wages the individual would have earned but for the

defendant’s violation. Akouri v. Fla. Dep’t of Transp., 408 F.3d 1338, 1343 (11th

Cir. 2005) (citation omitted) (decided in the context of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000 et seq.). The second is the recovery of

health-insurance coverage and other fringe benefits. Munoz v. Oceanside Resorts,

Inc., 223 F.3d 1340, 1348 (11th Cir. 2000) (decided in the context of the Age

 We recognize that the jury did not differentiate the type of damages in its award. 5

However, to justify the award, Wai concedes that the jury awarded front pay because the amount

the jury awarded vastly exceeds the figures submitted into evidence based upon back pay alone. 

18
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the

Florida Civil Rights Act, Fla. Stat. Ch. 760). 

As to the first part of the calculation, Wai testified that her earnings at

FedEx from January to July 2006 were based upon an annual salary of $36,265,

and that her earnings at Carnival from August 2006 to December 2006 were based

on an annual salary of between $11,000 and $13,000. Wai’s salary at FedEx led to

a monthly payment of $3,022 per month, which the jury could have awarded to her

for the July-to-August 2006 period that she was out of work. During the five

months that Wai worked at Carnival, the jury could have concluded that she made

$917 monthly based upon Wai’s testimony that she made $11,000 annually.

6

 Therefore, the damages amount for the five months at Carnival could have

equaled $10,525. Additionally, Wai testified that she worked at the restaurant for

7

three-and-a-half years and earned $27,000 per year, which is $9,265 less per year

than her prior salary at FedEx. The damages amount for the time she worked at

the restaurant equals $32,428. Thus, the jury could have reasonably found that the

evidence supported an award of damages in the form of past lost wages for

 We arrive at this number by dividing Wai’s annual income of $11,000 by twelve 6

months. 

 We arrive at this number by subtracting the amount of money Wai made at Carnival for 7

five months ($917 multiplied by 5) from the amount of money Wai would have earned at FedEx

for five months ($3,022 multiplied by 5). 

19
$45,975, the total of $3,022 (the month Wai was out of work), $10,525, and

$32,428.

8

As to the second part of any award for back pay, the evidence regarding

fringe benefits was limited. Wai testified that she had a retirement and 401(k)

plan at FedEx, as well as health insurance. However, Wai did not provide any

testimony relating to the value of her retirement or 401(k) plans. Rather, she only

testified that, when she withdrew funds from her 401(k) plan, $5,000 to $6,000

remained. Such testimony is insufficient for the jury to reasonably conclude the

value of Wai’s retirement and pension plans. Further, documents relating to Wai’s

pension calculation were not submitted into evidence at trial. Without a basis in

evidence, any jury award for Wai’s retirement or 401(k) benefits would be pure

speculation and must fail. 

Similarly, Wai also failed to provide any evidence of the value of her health

insurance at FedEx. Instead, she only testified that her weekly premiums for

health insurance at FedEx and the restaurant were $30 per week and $44 per week,

 We note that Wai’s counsel used these same figures and claimed that she was entitled 8

to approximately $50,000 in past losses. Furthermore, we find that FedEx’s argument that Wai

was not entitled to back pay because she allegedly earned more income after her termination

from FedEx is without merit. Wai testified to her income level after her termination from FedEx,

and the jury was free to accept that testimony. Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 150 (2000) (“Credibility determinations, the weighing of the evidence, and the drawing

of legitimate inferences from the facts are jury functions, not those of a judge.”) (quotation

omitted). 

20
respectively. This amounts to a difference of $728 annually. Because Wai 9

worked at the restaurant for three-and-a-half years, she had to pay an additional

$2,548 for health insurance. This amount is only a small percentage of her total

recovery.

10

Thus, in considering the totality of the evidence, there is no basis

whatsoever for an award of $225,000. The evidence supporting past losses limited

such to between $45,000 and $50,000. 

3. Liquidated Damages

The FMLA deals with damages in specific sections. 29 U.S.C. §

2617(a)(1)(A)-(B). Section 2617 is broken into two subsections. Id. Subsection

(A)(i)-(ii) deals with past losses and the interest thereon. 29 U.S.C. §

2617(a)(1)(A)(i)-(ii). Subsection (A)(iii) deals with liquidated damages equal to

the sum of the amount described in clause (i) and (ii) in the event that the

employer fails to establish good faith. 29 U.S.C. § 2617(a)(1)(A)(iii). Subsection

(B) provides for equitable relief. Thus, it is clear that liquidated damage awards

are to be based upon past losses and the interest on such an amount. 

 This number results from the $14 difference over the course of 52 weeks in a year. 

9

A review of the record indicates that Wai also presented evidence that she sustained 10 

losses relating to her health and pension benefits because she had an outstanding health bill for

$1,000 and had to pay a 35% tax when she withdrew funds from her 401(k) plan. 

21
Consequently, it is clear that the district court erred in its approach to

liquidated damages. While we affirm the finding that FedEx failed to prove to the

satisfaction of the court that its violation was in good faith, there is no legal basis

for the award of $236,030.36 as liquidated damages. As discussed earlier, past

losses under the evidence presented could not exceed $45,000 to $50,000. The

statute limits liquidated damages to the amount awarded for past losses and the

interest thereon. 29 U.S.C. § 2617(a)(1)(A)(iii). 

Thus, we must vacate the award of liquidated damages. 

4. Equitable Relief

As noted above, in addition to damages, the FMLA provides for “equitable

relief as may be appropriate, including employment, reinstatement, and

promotion.” 29 U.S.C. § 2617(a)(1)(B). Under the FMLA, front pay is an

equitable remedy. U.S. E.E.O.C., 213 F.3d at 618-19. However, before awarding

front pay, the court must first consider whether reinstatement is viable. Id.;

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001) (holding, in

the context of a Title VII case, that “[i]n cases in which reinstatement is not viable

. . . courts have ordered front pay as a substitute for reinstatement”). Therefore,

unless the court finds that reinstatement is impracticable, “we presume that

reinstatement is the appropriate remedy.” U.S. E.E.O.C., 213 F.3d at 619.

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In determining whether reinstatement is feasible, the district court must

consider factors such as the availability of the position and the impact

reinstatement would have on the employee-employer relationship. Id. See also

Traxler, 596 F.3d at 1012 (citation omitted). Circumstances for the court to

consider when reviewing the employee-employer relationship include whether

“discord and antagonism between the parties would render reinstatement

ineffective as a make-whole remedy, the defendant’s management [had]

intimidated or threatened the plaintiff, or the termination had harmed the

plaintiff’s emotional well-being.” U.S. E.E.O.C., 213 F.3d at 619 (alteration in

original) (internal citations and quotation marks omitted). Only after the court

considers these factors may it award front pay in lieu of reinstatement. 

Additionally, the court must “carefully articulate its reasons for awarding front pay

rather than reinstatement.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,

1339 (11th Cir. 1999) (decided in the context of the ADEA, 29 U.S.C. § 621 et

seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.). 

The record in this case is totally silent as to any consideration of

reinstatement. Wai had requested such in her complaint when she sought

“appropriate relief including reinstatement . . . .” (R.1 at 11). The Omnibus Order

of the district court makes no reference to reinstatement in spite of our precedent

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that such is the remedy that should be considered in the first instance. With the

size of FedEx, and its worldwide operations, it is hard to image any impediments

to reinstatement. At a minimum, the district court is required to consider the

availability of Wai’s former position or another similar position and the overall

relationship between Wai and FedEx. See U.S. E.E.O.C, 213 F.3d at 619. 

VI. 

For these reasons, we affirm the jury’s finding of a violation of the FMLA

and we affirm the court’s finding that FedEx did not prove that the violation was

made in good faith. We vacate all of the awards of damages by the jury and the

district court and remand the matter for further proceedings consistent with this

opinion. 

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AFFIRMED IN PART AND REVERSED IN PART. 

 We note the possibility that past losses could be handled by way of a proper remittitur, 11

which was requested by FedEx. Any other appropriate relief is a matter for the district court as

outlined herein. 

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