F I L E D

United States Court of Appeals

Tenth Circuit

JUL 29 2002

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DIANTHA SMITH

Plaintiff-Appellee and CrossAppellant,

v.

DIFFEE FORD-LINCOLN-MERCURY,

INC.,

Defendant-Appellant and CrossAppellee.

Nos. 00-6362, 00-6363

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-99-475-T)

Maurice G. Woods, II (Michael McAtee with him on the briefs), of McAtee & Woods,

P.C., Oklahoma City, Oklahoma, for Defendant-Appellant and Cross-Appellee.

Mark Hammons of Hammons & Associates, Oklahoma City, Oklahoma, for PlaintiffAppellee and Cross-Appellant

Before BRISCOE, HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.

I

Diantha Smith (“Smith”) was employed by Diffee Ford-Lincoln-Mercury, Inc.
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(“Diffee”) of El Reno, Oklahoma. Smith’s job title was “booker” or “warranty clerk,” and

her position required that she figure and prepare all warranty, internal, and customer pay

repair orders for payment. Smith was a senior employee and apparently did her job well in

most respects. 

Smith’s supervisor, Warren Blackketter (“Blackketter”), became disappointed,

however, that Smith had not been training several junior employees in how to perform the

Ford warranty claims submission process. As early as 1993 or 1994, he had asked her to

begin this training and, in December, 1996, after Smith’s return from vacation, formally

reprimanded her for not training the junior employees. No deadline seems to have been set

for this training to be completed, which was to last only about two weeks, and no

documentation was required. Smith agrees that she did not train them fully as requested, but

indicates that it was not listed as an official duty and that she was not well-suited to teaching.

Smith was diagnosed with breast cancer on April 29, 1997 and required medical leave

from April 30 through June of 1997 for treatment. She told Diffee on leaving that she would

be able to return to work June 16, 1997, which was within 12 weeks as the Family and

Medical Leave Act (FMLA) required. During Smith’s absence, Diffee says it became

apparent to Blackketter that Smith had not adequately trained a junior employee, Martha

DeHart, to do her job and that the warranty claims submission process began to back up.

Warranty work accounted for the majority of Diffee’s revenues, and Diffee says it was losing

money as a result of the backup. DeHart had been working at Diffee since January of that
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year. Both parties agree that Smith had partially but not fully trained DeHart, though they

disagree as to the adequacy of the partial training. On June 3, 1997, Diffee terminated Smith.

The FMLA, 29 U.S.C. §§ 2601-2654, provides that eligible employees of certain

employers have the right to take unpaid medical leave for a period of up to twelve work

weeks in any twelve month period for a serious health condition as defined by the Act. It

was established that Smith was an eligible employee, that Diffee was an employer covered

by the Act, that Smith was on medical leave for treatment of a covered medical condition at

the time of her dismissal, and that she would have been able to return to work before using

her 12 weeks of leave had she not been terminated. Smith testified that she expected to work

for Diffee until she retired.

II

Smith brought suit against Diffee under the FMLA, the Americans with Disabilities

Act (ADA), and Title VII, though she abandoned her Title VII claim at trial. She requested

back pay, prejudgment interest, and front pay, as well as liquidated damages (under the

FMLA), punitive damages (under the ADA), costs, and attorney’s fees. 

The district court granted summary judgment for Diffee as to the ADA claim of

failing to reasonably accommodate her disability. The jury found that Smith was entitled to

$58,000 back pay from the date of termination to the trial, to which $4,785 in interest was

added. Relying on 29 U.S.C. § 2617(a)(1)(A)(iii), and on the fact that the jury had

necessarily rejected Diffee’s defense that it would have discharged Smith regardless of her
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taking FMLA leave, the judge found that he was required to award $62,785 in liquidated

damages (equal to the sum of back pay of $58,000 and interest in the amount of $4,785) and

did so. As is explained below, such liquidated damages are in addition to the like amount

of back pay and interest, effectively doubling the damages.

The judge, who determines front pay as an equitable issue, found the evidence

persuasive that Diffee “was dissatisfied with [Smith’s] job performance and would have

discharged her within the next few months, even if she had not been absent for medical

reasons,” and declined to award front pay. III Aplt. App. 640. The court also awarded some

but not all of the attorney’s fees and costs Smith requested. 

Both parties now appeal the denial of judgment as a matter of law in their favor on the

FMLA claim. Diffee appeals the FMLA judgment based on the verdict, on the ground that

the court improperly instructed the jury that Diffee bore the burden of proof on the FMLA

claim. Diffee also appeals the award of liquidated damages. Smith appeals the district

judge’s grant of summary judgment for Diffee on the ADA claim, the judge’s denial of

FMLA front pay, and his refusal to award full costs and attorney’s fees. We address each

of these issues in turn.

III

A

Judgment as a Matter of Law on the FMLA Claim

Diffee appeals the denial of its motion for judgment as a matter of law on Smith’s
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FMLA claim. “We review de novo a district court’s disposition of a motion for judgment

as a matter of law, applying the same standard as the district court.” Baty v. Willamette

Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (quotation marks and citation omitted).

Employees are authorized under 29 U.S.C. § 2617(a) to bring an action to recover

damages for violations of § 2615. Courts have recognized two theories for recovery on

FMLA claims under § 2615, the retaliation or discrimination theory and the entitlement or

interference theory. The retaliation or discrimination theory arises from § 2615(a)(2), which

provides that “[i]t shall be unlawful for any employer to discharge or in any other manner

discriminate against any individual for opposing any practice made unlawful by this

subchapter.” The entitlement or interference theory arises from § 2615(a)(1): “[i]t shall be

unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt

to exercise, any right provided in this subchapter.” 

We have addressed claims brought under both § 2615(a)(1) and (2). Compare

Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir. 1997) (affirming grant of summary judgment

on FMLA retaliation/discrimination claim), withRenaud v. Wyoming Dep’t of Family Servs.,

203 F.3d 723, 732 (10th Cir. 2000) (examining the sufficiency of evidence for a jury’s

determination that an employer did not interfere with its employee’s entitlement to FMLA

leave when he was fired while on leave), and Tate v. Farmland Indus., 268 F.3d 989, 997

(10th Cir. 2001) (holding that an employee could maintain a cause of action where the

employee had FMLA rights and the employer’s actions were alleged to have interfered with
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those rights). We recently recognized the interference theory by name. McBride v. Citgo

Petroleum Corp., 281 F.3d 1099, 1108 (10th Cir. 2002) (characterizing claims in Renaud and

Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998), as brought under the

interference theory). 

The interference or entitlement theory is derived from the FMLA’s creation of

substantive rights. If an employer interferes with the FMLA-created right to medical leave

or to reinstatement following the leave, a deprivation of this right is a violation regardless

of the employer’s intent. King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.

1999). In such a case, “the employee must demonstrate by a preponderance of the evidence

only entitlement to the disputed leave . . . . [T]he intent of the employer is immaterial.” Id.

However, we are also mindful that “[u]nder FMLA, an employee who requests leave or is

on leave has no greater rights than an employee who remains at work.” Gunnell, 152 F.3d

at 1262 (citing 29 C.F.R. § 825.216(a)). We have further explained that “an employee who

requests FMLA leave would have no greater protection against his or her employment being

terminated for reasons not related to his or her FMLA request than he or she did before

submitting the request.” Id. (citing 29 C.F.R. § 825.216(a) and cases). Gunnell makes clear

that an employee may be dismissed, preventing her from exercising her statutory right to

FMLA leave—but only if the dismissal would have occurred regardless of the employee’s

request for or taking of FMLA leave. Id.

We have not explored the entire range of reasons for dismissal that would support
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recovery under the interference/entitlement theory. The fact that the interference/entitlement

theory and the retaliation/discrimination theory are recognized as separate theories makes

it evident, however, that retaliation is not the only impermissible reason for dismissal. A

plaintiff can prevail under an entitlement theory if she was denied her substantive rights

under the FMLA for a reason connected with her FMLA leave. Such a reason need not be

retaliation. Smith’s decision not to pursue her claim under the retaliation theory is thus not

fatal to her case. 

On the other hand, a reason for dismissal insufficiently related to FMLA leave will

not support recovery under an interference theory. In McBride, we affirmed a grant of

summary judgment to a defendant employer where an employee argued that the same illness

that led to her taking FMLA leave also caused performance problems for which she was

dismissed. McBride, 281 F.3d at 1108. We reasoned that the FMLA did not extend to

employees such additional protections as a ban on dismissal for poor performance caused

by illness or the right to demonstrate improved performance when not ill. Id. We

considered the indirect causal link between the employee’s dismissal and FMLA leave (i.e.,

the fact that they independently resulted from the same cause) to be inadequate as a basis for

recovery under the FMLA. Id. 

In the case at bar, by contrast, Smith both presented evidence and argued that she

would not have been dismissed had she not taken FMLA leave. This claim was submitted

by the instructions to the jury and the verdict in Smith’s favor was based on this claim.
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Smith points to her long years of service, Diffee’s failure to subject her to serious discipline

before her FMLA leave, the lack of formal emphasis on the importance of training, the lack

of monitoring or reporting of training progress, and Diffee’s timing of her termination

(during her FMLA leave). She also points to Blackketter’s testimony suggesting that there

was no formal deadline for completing the training of other employees, except that Smith

had to complete the training before she took leave for any reason. III Aplt. App. 735-39, IV

Aplt. App. 996. The timing of Smith’s termination also indicates a causal relation between

her FMLA leave and her dismissal. See Anderson v. Coors Brewing Co., 181 F.3d 1171,

1179 (10th Cir. 1999) (observing that one and one-half months between the protected

activity and dismissal “may, by itself, establish causation”) (citing Ramirez v. Okla. Dep’t

of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994)). From this testimony the jury could

reasonably infer that, had Smith been healthy, Diffee would have permitted her to continue

indefinitely at her job without training anyone.

Diffee stipulated that Smith was an FMLA eligible employee and took leave because

of a serious medical condition, that she was fired while on FMLA leave and not reinstated

to her former position, and that had she not been fired she would have been able to return to

work at the end of the twelve weeks of leave. III Aplt. App. 709-10. Under 29 U.S.C. §

2617, Smith was therefore entitled to the FMLA back pay and prejudgment interest awarded

to her. As we explained in Gunnell, her damages would be limited to the benefits she would

have received had Diffee not interfered with her right to reinstatement following FMLA
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leave. 

As noted, Smith presented evidence from which a reasonable jury could have found

(as it did) that she would have been employed and continued to collect wages had she not

taken FMLA leave. Therefore, judgment as a matter of law for Diffee on the FMLA claim

was properly denied. Because we hold that the jury’s verdict should stand, Smith’s appeal

of the denial of her motion for judgment as a matter of law on her FMLA claim is now moot.

B

Effect of the Jury Instructions on the Entitlement Claim

Diffee argues that the district court erred in instructing the jury on Smith’s FMLA

claim, that this error was prejudicial, and that therefore Diffee is entitled to a new trial. “We

review the district court’s decision to give a particular jury instruction for abuse of discretion

and consider the instructions as a whole de novo to determine whether they accurately

informed the jury of the governing law.” United States v. McClatchey, 217 F.3d 823, 834

(10th Cir.) (citation omitted), cert. denied, 531 U.S. 1015 (2000). An error in jury

instructions requires reversal only if it was prejudicial in light of the whole record. United

States v. Denny, 939 F.2d 1449, 1454 (10th Cir. 1991).

In Gunnell we did not have occasion to consider differences between the applications

of the two theories—entitlement/interference and discrimination/retaliation. The question

which is at the heart of this case, therefore, remains open: Under an entitlement theory,

which party bears the burden of proving whether the employee would or would not have been
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dismissed for reasons unrelated to her FMLA leave? In the instant case, the jury was

instructed according to the entitlement theory. IV Aplt. App. 1136-39 (Instructions 8 and 9).

Diffee argues first that the district court erred in giving an entitlement instruction at all, since

it says neither Smith’s filings nor the pretrial order gave adequate notice that such a theory

would be relied on as a basis for recovery. Appellant’s Opening Brief at 12-18. Although

Diffee argues this point at length, it does not indicate how it might have been prejudiced by

the alleged lack of adequate notice. Nor is any prejudice obvious to us. Because we do not

see that substantial rights were affected by this error, if it was error, we may not consider it

in reaching our decision. 28 U.S.C. § 2111 (“On the hearing of any appeal . . . , the court

shall give judgment after an examination of the record without regard to errors or defects

which do not affect the substantial rights of the parties.”).

Diffee goes on to argue that the district court misstated the applicable law when it

instructed the jury on the entitlement claim. If the claim was brought under an entitlement

theory, Diffee argues, the court erroneously shifted the ultimate burden of persuasion to

Diffee to prove its legitimate reason for terminating Smith. Diffee also says that the judge

did not require Smith to prove entitlement to the benefit of being restored to her position.

Appellant’s Opening Brief at 27 (citing Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir.

2000)). Diffee argues in the alternative that even if the claim was properly brought under a

discrimination/retaliation theory, the court improperly failed to instruct the jury on any of the

proper elements of proof under traditional intent-based discrimination/retaliation claims.
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Appellant’s Opening Brief at 27, citing Morgan, 108 F.3d 1319. 

Diffee focuses its argument on the fact that while the district court’s instructions put

the initial burden of proof on Smith, they then shifted the burden to Diffee to prove that

Smith would have been dismissed for reasons unrelated to her FMLA leave. The Circuits

are split on the issue of where such a burden falls. The Eleventh Circuit, relying on 29

C.F.R. § 825.216 (a) (1), has required that once an employee proves she was denied

reinstatement after FMLA leave, the employer must prove she would have been laid off

anyway for some other reason. See O’Connor v. PCA Family Health Plan, Inc., 200 F.3d

1349 (11th Cir. 2000); Parris v. Miami Herald Publ’g Co., 216 F.3d 1298 (11th Cir. 2000).

This regulation was promulgated by the Department of Labor pursuant to the Secretary’s

delegated power to issue regulations necessary to carry out the FMLA. Ragsdale v.

Wolverine World Wide, Inc., 122 S.Ct. 1155, 1159-60 (2002) (citing 29 U.S.C. § 2654). The

First Circuit has held unequivocally that such regulations are entitled to deference:

We do not write on a clean slate. The Act delegates to the Secretary of Labor

broad authority to “prescribe such regulations as are necessary to carry out” the

Act. 29 U.S.C. § 2654. The regulations . . . were promulgated pursuant to the

requirements of notice-and-comment rulemaking under the Administrative

Procedure Act, 5 U.S.C. § 553. . . . The regulations were an exercise of the

Secretary’s delegated authority and were adopted with the participation of the

public, and thus deference to the Secretary’s interpretation is properly invoked.

Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 5 (1st Cir. 1998).

Subsection (a) of 29 C.F.R. § 825.216 provides:

An employee has no greater right to reinstatement or to other benefits and

conditions of employment than if the employee had been continuously
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employed during the FMLA leave period. An employer must be able to show

that an employee would not otherwise have been employed at the time

reinstatement is requested in order to deny restoration to employment. 

(emphasis added). This section further provides, by way of example, that 

[i]f an employee is laid off during the course of taking FMLA leave and

employment is terminated, the employer’s responsibility to continue FMLA

leave, maintain group health plan benefits and restore the employee cease at

the time the employee is laid off . . . . An employer would have the burden of

proving that an employee would have been laid off during the FMLA leave

period and, therefore, would not be entitled to restoration.

(emphasis added). 29 C.F.R. § 825.216(a)(1). 

We therefore conclude that the regulation is not arbitrary, capricious, or

manifestly contrary to the FMLA. We also conclude that the regulation validly shifts

to the employer the burden of proving that an employee, laid off during FMLA leave,

would have been dismissed regardless of the employee’s request for, or taking of,

FMLA leave. We therefore see no need to apply the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We cannot

agree with the Seventh Circuit’s reading of the statute as stated in Rice, 209 F.3d

1008. We are persuaded that the Eleventh Circuit in Parris has the better argument

because its reading of the regulation is more natural, and its holding is both more

reasonable and more harmonious with precedent. In sum, we hold that the claims of

error in the instructions on the entitlement theory are not persuasive and do not entitle

Diffee to a new trial.
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C

Award of Liquidated Damages

Diffee challenges the award of liquidated damages under the FMLA. The

only arguments it offers in its opening brief, however, are those against FMLA

liability generally. The FMLA provides that an employer who violates the act shall

be liable for liquidated damages in an amount equal to back pay plus prejudgment

interest, unless it “proves to the satisfaction of the court that the act or omission . . .

was in good faith and that the employer had reasonable grounds for believing that the

act or omission was not a violation . . . .” 29 U.S.C. § 2617(a)(1)(A)(iii). Adding

such liquidated damages to the awards of back pay and prejudgment interest

“effectively doubles the size of the award.” Nero v. Indus. Molding Corp., 167 F.3d

921, 925 n.2 (5th Cir. 1999).

The district court concluded that Smith was entitled to liquidated damages in

the amount of $62,785, and awarded them. III Aplt. App. 630-40. Diffee cites

Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1264 (10th Cir. 1995),

for the principle that damages that are “speculative, remote, imaginary, or impossible

of ascertainment” may not be recovered. However, Smith testified that she expected

to work at Diffee until she reached age 65, and presented evidence from which the

jury could reasonably find that she would be employed by Diffee at least until the date

of trial. The jury so found and calculated back pay accordingly. Prejudgment interest
1The district court cited this case in its order, recognizing that it was cited for persuasive

value only as provided for under 10th Cir. R. 36.3(B).

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was based on this award of back pay. The additional award of liquidated damages

equaled the jury’s award of back pay plus prejudgment interest, as provided for under

29 U.S.C. § 2617(a)(1)(A)(iii). Damages were therefore not speculative, remote,

imaginary, or impossible of ascertainment.

We have determined that the district court did not err in denying Diffee

judgment as a matter of law because the court correctly entered a judgment for

$62,785 (representing $58,000 back pay plus $4,785 prejudgment interest) based on

the jury verdict. Having entered such a judgment, the judge properly awarded

liquidated damages in a like amount. Thus we conclude that the district court

properly awarded liquidated damages.

D

Denial of Front Pay

While back pay—which the jury awarded—compensates the victim of

discrimination for lost wages and benefits before trial, front pay is intended to

compensate her for losses after trial. Graefenhain v. Pabst Brewing Co., 870 F.2d

1198, 1213 (7th Cir. 1989); Dalal v. Alliant Techsystems, Inc., No. 94-1483, 1995

WL 747442, at *2-3 (10th Cir. Dec. 18, 1995).1

 Front pay is an equitable remedy and

its calculation and award are the responsibility of the court, as Diffee argues. Mason

v. Okla. Tpk. Auth., 115 F.3d 1442, 1458 (10th Cir. 1997). We review the district
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judge’s findings underlying his award of front pay for clear error, and the award itself

for abuse of discretion. EEOC v. Gen. Lines, Inc., 865 F.2d 1555, 1558 (10th Cir.

1989).

Here, Smith sought both legal and equitable relief (back pay and front pay).

Diffee argues that the judge has authority to determine front pay. This, however, does

not take into account the binding effect of the jury’s findings. We have previously

held that when legal and equitable issues to be decided in the same case depend on

common determinations of fact, such questions of fact are submitted to the jury, and

the court in resolving the equitable issues is then bound by the jury’s findings on

them. Ag Servs. of America, Inc. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000)

(citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), and Dairy Queen,

Inc. v. Wood, 369 U.S. 469 (1962)). In Ag Servs. we explained that 

[t]he strictures of the Seventh Amendment are particularly applicable

in a case where, due to the presence of both equitable and legal issues,

trial is both to the jury and to the court. In such a situation, when a case

involves both a jury trial and a bench trial, any essential factual issues

which are central to both must be first tried to the jury, so that the

litigants’ Seventh Amendment jury trial rights are not foreclosed on

common factual issues. Moreover, the court is bound by the jury’s

determination of factual issues common to both the legal and equitable

claims. 

Id. (emphasis omitted). “We have held that when fact issues central to a claim are

decided by a jury upon evidence that would justify its conclusion, the Seventh

Amendment right to a jury trial prohibits the district court from reaching a contrary
2The record shows the $58,000 back pay award was made by the verdict of August 16,

2000. Aple. App. 48.

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conclusion.” Brinkman v. Dep’t of Corrections, 21 F.3d 370, 372-73 (10th Cir.), cert.

denied, 513 U.S. 927 (1994).

The judge expressly acknowledged the application of the Brinkman holding.

In considering the back pay claim, the judge accepted the jury’s rejection of the

defense “that the plaintiff would have been terminated for unsatisfactory job

performance even if she had not taken FMLA leave.” III Aplt. App. 640 (Order of

Sept. 29, 2000). The trouble is that when the judge turned to consider the front pay

issue, the jury’s finding that Smith would not have been fired before the trial was

disregarded. Instead, the judge made his own contrary finding:

Even though the jury found that the plaintiff was terminated for taking

medical leave, that conclusion does not negate the evidence, found by

the court to be persuasive, that the defendant was dissatisfied with the

plaintiff’s job performance and would have discharged her within the

next few months, even if she had not been absent for medical reasons.

III Aplt. App. 640 (Order of Sept. 29, 2000). 

Here, the jury had implicitly found that Smith would have been employed at

least until the date of trial,2

 which was more than three years after her dismissal on

June 3, 1997. Smith sought back pay of $58,000, which represented the wages she

expected to earn from the date of termination to the date of trial (in August, 2000).

III Aplt. App. 849; IV Aplt. App. 905-06. The jury was instructed that, if it found

Smith had proved the elements of her FMLA claim, it was to award back pay in the
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amount of wages and benefits she would have earned after the date of her termination

but not later than the date of the verdict. IV Aplt. App. 1140-41 (Jury instruction 10).

The jury awarded her the requested $58,000 as back pay. Aple. App. 48. We must

presume that the jury followed the district court’s instructions. Weeks v. Angelone,

528 U.S. 225, 234 (2000); United States v. McClatchey, 217 F.3d 823, 833 (10th

Cir.), cert denied, 531 U.S. 1015 (2000). It is clear therefore that the jury found that

Smith would have been employed by Diffee at least until the date of trial.

The trial judge’s denial of front pay was based on his own finding that Smith

would have been fired within “the next few months, even if she had not been absent

for medical reasons.” This finding of the judge disregarded the jury’s implicit finding

that Smith would have been employed at least until the date of trial, in August, 2000.

This was impermissible under Beacon Theatres, 359 U.S. 500, and Dairy Queen, 369

U.S. 469. See also Ag Servs., 231 F.3d at 730. We therefore conclude that the

judge’s finding, premising his denial of front pay, was error. The judge therefore

abused his discretion when he denied Smith front pay on the basis of his own

erroneous finding. Gen. Lines, 865 F.2d at1558.

On remand, the district judge should make new findings for a front pay award

consistent with the jury’s findings. The district judge may, in his discretion, hold

additional hearings if necessary for the new findings and front pay award.
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E

Grant of Diffee’s Motion for Summary Judgment on the ADA Claim

Smith appeals the district court’s denial of her motion for summary judgment

on her claim under the ADA, 42 U.S.C. §§ 12101 et seq., and the court’s grant of

summary judgment to Diffee. A denial of summary judgment is ordinarily not a final

decision and is thus not appealable. Schmidt v. Farm Credit Servs., 977 F.2d 511, 513

n.3 (10th Cir. 1992). We follow that principle here and therefore dismiss for lack of

jurisdiction Smith’s claim of error in the denial of summary judgment. The grant of

summary judgment to Diffee, however, is appealable, and “[w]e review the district

court’s grant of summary judgment de novo, applying the same legal standard used

by the district court.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance

Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999). The

nonmovant is given “wide berth to prove a factual controversy exists.” Jeffries v.

Kansas, Dep’t of Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir. 1998) (citation

omitted).

In White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995), we

explained that

to qualify for relief under the ADA, a plaintiff must establish (1) that

he is a disabled person within the meaning of the ADA; (2) that he is

qualified, that is, with or without reasonable accommodation (which he

must describe), he is able to perform the essential functions of the job;

and (3) that the employer terminated him because of his disability. 
3Diffee explained that it had made the stipulation as a trial tactic, so that Smith would not

be able to present medical testimony to the jury that it felt “would no doubt garner compassion

and prejudice for [Smith’s] plight.” Aple. App. 18. Diffee contends that by making such a

stipulation after briefing had finished and Smith’s motion for summary judgment had been filed

it “merely intended to abandon the issue at trial—not foreclose the issue from this Court’s

determination.” Id. 

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Initially, the district court found that Smith had not come forward with

evidence that she was disabled within the meaning of the ADA. Aple. App. 3-4.

However, in the pretrial order, Diffee stipulated that Smith was disabled within the

meaning of the ADA, and apparently had never sought or been granted relief from this

stipulation.3 Aple. App. 15. On reconsideration, the court therefore vacated its

previous conclusion that Smith had failed to demonstrate that she was disabled within

the meaning of the ADA. Aple. App. 26-27. Smith therefore satisfied the first

requirement. However, the court went on to grant summary judgment in favor of

Diffee, on the alternative basis that Smith presented no evidence that Diffee had

discriminated against her because of her disability. Id. 

Smith argues that her request for leave amounted to a request for reasonable

accommodation of her disability. We have previously explained that limited leave for

medical treatment may qualify as reasonable accommodation under the ADA. Rascon

v. U.S. West Communications, Inc. 143 F.3d 1324, 1333-34 (10th Cir. 1998) (citing

Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996)). Whether

medical leave is a reasonable accommodation under the ADA is a mixed question of

law and fact involving primarily legal principles, and is therefore reviewed de novo.
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Id. at 1333. Because Smith had requested and taken no more leave than the FMLA

already required that she be given, we cannot conclude that the length of time was

unreasonable or that the leave unduly burdened Diffee. We conclude that Smith

satisfied the second requirement.

The third requirement (that the employer terminated the employee because of

her disability), identified by the district court as the basis for its order, is the only

remaining possible basis for granting summary judgment for Diffee on Smith’s ADA

claim. Although the court concluded that Smith “presented no evidence, direct or

circumstantial, that [Diffee] discriminated against her because of her disability,” as

we have already concluded, Smith did present evidence adequate to raise a question

of fact for the jury on her FMLA claim. Aple. App. 27. 

“Under the ADA, prohibited discrimination includes failure to make

‘reasonable accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability.’” Rascon, 143 F.3d at 1333 (quoting

Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir.1996)). In the

instant case it is undisputed that Diffee fired Smith while she was on medical leave.

The question of whether Smith was “otherwise qualified,” however is

indistinguishable from that submitted to the jury on the FMLA claim. Whether Smith

would have kept her job had she not taken medical leave, or whether she would have

been fired anyway, was a question for the jury. We also believe that the timing of
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Smith’s dismissal and the testimony suggesting that Smith’s dismissal was attributable

to her taking medical leave together provide adequate prima facie evidence of

discrimination under the ADA.

When a burden shifting framework is used in a discrimination case, the

Supreme Court has held that, once a plaintiff makes out her prima facie case,

summary judgment cannot be granted for the defendant on the basis of her failure to

present additional evidence of discrimination. Reeves, 530 U.S. 133, 147. This is

because the employer is required to come forward with a legitimate,

nondiscriminatory explanation for its decision. If the jury disbelieves this explanation

it may, on this basis, reasonably infer that the employer is covering up a

discriminatory purpose. Id. at 147-48; Randle v. City of Aurora, 69 F. 3d 441, 443 &

n.18 (10th Cir. 1995). Therefore, we conclude that the district court erred in granting

summary judgment for Diffee on Smith’s ADA claim.

It is clear that Smith sought at least one remedy—punitive damages—under her

ADA theory that she did not pursue under her FMLA theory. I Aplt. App. 23 (final

pretrial order). Her recovery of liquidated damages as provided for under the FMLA

does not necessarily prevent her from recovering punitive damages under the ADA.

See Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1152 (10th Cir. 1999) (awarding

liquidated damages under the FMLA and punitive damages under Title VII, and

rejecting the argument that they represent a double recovery); Mason, 115 F.3d at
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1460 (“[M]ultiple punitive damage awards on overlapping theories of recovery may

not be duplicative at all, but may instead represent the jury’s proper effort to punish

and deter all the improper conduct underlying the verdict.”)

We therefore reverse the grant of summary judgment for Diffee on Smith’s

ADA claim. We remand that claim to the district court for further proceedings and

the entry of judgment on liability and damages. The judge can then reconsider costs

and attorney’s fees, to which we now turn.

F

Costs and Attorney’s fees

Smith argues that the trial judge erroneously entered a reduced award of costs

and attorney’s fees. Diffee says that the determination on costs and attorney’s fees

was “appropriate, if properly granted in the first instance.” Appellant’s Answer Brief

to Cross Appeal and Reply Brief at 32.

We review the award of attorney’s fees for abuse of discretion. Shaw v. AAA

Eng’g & Drafting, Inc., 213 F.3d 538, 542 (10th Cir. 2000) (awarding attorney’s

fees); Urban ex rel. Urban v. Jefferson County Sch. Dist., 89 F.3d 728, 728 (10th Cir.

1996) (refusing to award fees). “We will not disturb the district court’s determination

regarding what costs are reasonably necessary to the litigation absent an abuse of

discretion.” Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1476 (10th Cir. 1997)

(citation omitted). “A court abuses its discretion when it bases its decision on an
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erroneous conclusion of law or when there is no rational basis in evidence for its

ruling.” Shaw, 213 F.3d at 542 (citation omitted).

The FMLA provides that a plaintiff shall be allowed “a reasonable attorney’s

fee, reasonable expert witness fees, and other costs of the action to be paid by the

defendant.” 29 U.S.C. § 2617(a)(3). The district court awarded Smith some, but not

all, the costs and attorney’s fees she sought. Smith asks for recalculation of attorney’s

fees which she says were reduced because her ADA and front pay claims were

unsuccessful. After proceedings on the ADA and front pay FMLA claims occur on

remand, as this opinion provides for, the district court should recalculate the award

of costs and attorney’s fees.

We note that Smith also asks for reimbursement of certain unnamed out-ofpocket expenses. She concedes she can cite no cases construing the FMLA’s costs

provision. However, she cites the legislative history indicating that the portion of the

FMLA dealing with costs is to be interpreted in the same way as the Fair Labor

Standards Act (“FLSA”). Under the FLSA, costs include reasonable out-of-pocket

expenses. Shorter v. Valley Bank & Trust Co., 678 F.Supp. 714, 726 (N.D. Ill. 1988).

They can include costs beyond those normally allowed under Fed.R.Civ.P. 54(d) and

28 U.S.C. § 1920. Herold v. Hajoca Corp., 864 F.2d 317, 323 (4th Cir.1988), cert.

denied, 490 U.S. 1107 (1989) (holding that FLSA’s costs provision authorizes an

award of costs as part of a “reasonable attorney’s fee,” which would not be authorized
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under Rule 54 or 28 U.S.C. § 1920); Colunga v. Young, 722 F.Supp. 1479, 1488

(W.D. Mich. 1989), aff’d 914 F.2d 255 (6th Cir. 1990) (holding that, while travel and

telephone costs are not recoverable under Rule 54 or 28 U.S.C. § 1920, they are

recoverable under “the remedial and thus more broadly interpreted cost-shifting

aspect” of FLSA). Smith argues that the district court erroneously failed to use that

remedial standard.

The district court declined to award “reasonable out-of-pocket expenses that

are normally absorbed as part of law firm overhead.” Aple. App. 144. In so deciding,

the court apparently found that the expenses Smith now seeks to recover were

normally absorbed as overhead and reflected in the attorney’s hourly rate. We have

previously held in Ramos v. Lamm, 713 F.2d 546, 558-59 (10th Cir. 1983), that such

expenses are not recoverable. Neither the district court’s opinion nor Smith’s opening

brief nor her reply brief indicates what the out-of-pocket expenses at issue are, nor

does Smith cite evidence in the record on these expenses. Smith did not respond to

Diffee’s argument that Ramos held the kind of costs at issue here to be unrecoverable,

nor does she present any basis for disputing the district court’s finding that they would

normally be absorbed as part of overhead. Smith therefore does not show that the

district court had authority, even under the more expansive FMLA remedial standard,

to award these costs. 

Accordingly, when the trial judge reconsiders costs and attorney’s fees as
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provided above, the out-of-pocket expense claim should be denied again as in the

judge’s earlier ruling thereon, which we uphold.

IV

For these reasons, the district court’s denial of Diffee’s motion for judgment

as a matter of law on Smith’s FMLA claim is AFFIRMED. The court’s denial of a

new trial on Smith’s FMLA claim is likewise AFFIRMED. The award of liquidated

damages made under the FMLA is AFFIRMED. The district court’s denial of FMLA

front pay to Smith is REVERSED and that claim is REMANDED for proceedings

consistent with this opinion. The court’s grant of summary judgment to Diffee on

Smith’s ADA claim is REVERSED. Smith’s ADA claim is REMANDED to the

district court with instructions to consider the entry of proper judgment in accord with

this opinion. Smith’s attempted appeal from the denial of her motion for summary

judgment on her ADA claim is DISMISSED for lack of jurisdiction.

IT IS SO ORDERED.