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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0341P (6th Cir.)

File Name: 03a0341p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DANIEL R. ARBAN,

Plaintiff-Appellee/

Cross-Appellant,

v.

WEST PUBLISHING CORP.,

Defendant-Appellant/

Cross-Appellee.

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Nos. 01-2278/2370

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-73520—Bernard A. Friedman, District Judge.

Argued: June 13, 2003

Decided and Filed: September 24, 2003 

Before: KEITH, MOORE, and GIBBONS, Circuit Judges. 

_________________

COUNSEL

ARGUED: Abraham Singer, PEPPER HAMILTON,

Detroit, Michigan, for Appellant. William G. Tishkoff,

LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan,

for Appellee. ON BRIEF: Abraham Singer, Michelle

2 Arban v. West Publishing Corp. Nos. 01-2278/2370

Motowski Lund, PEPPER HAMILTON, Detroit, Michigan,

for Appellant. William G. Tishkoff, Marvin B. Bartlett,

LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan,

for Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Daniel R. Arban

brought this action against West Publishing Corporation

(West) pursuant to the Family Medical and Leave Act

(FMLA), 29 U.S.C. § 2611 et seq. Arban alleged that West

violated the FMLA by terminating him while he was on

medical leave and by failing to reinstate him at the

completion of the leave. Arban also alleged that West

violated the FMLA by interfering with, restraining, or

denying him his right to take an FMLA leave. The case was

tried before a jury, which returned a verdict in favor of Arban.

West then filed a motion for judgment as a matter of law or

for a new trial, which the district court denied. West appeals.

Arban cross-appeals the district court’s denial of front pay

and liquidated damages and the district court’s grant of a stay

without bond. For the reasons set forth below, we affirm the

district court’s denial of West’s motion for judgment as a

matter of law or for a new trial, reverse and remand the trial

court’s denial of an award of liquidated damages, affirm the

district court’s denial of Arban’s claim for front pay, and

affirm the district court’s grant of a stay without bond. 

I.

Arban began working as a sales representative for Lawyer’s

Cooperative Publishing in 1995. Lawyer’s Cooperative

Publishing merged with West in 1996. Arban has a

documented history of gastrointestinal problems, including

chronic and severe esophagitis and irritable bowel syndrome,

which began in the middle of 1995 or early 1996. In 1997,
Nos. 01-2278/2370 Arban v. West Publishing Corp. 3

Arban was promoted from a field sales representative to a

regional field sales manager. In this position, he supervised

other representatives, while continuing to make sales. In

January 1998, Arban voluntarily returned to the position of

field sales representative in order to spend more time with his

children. At that time Arban’s immediate supervisor was

Robert Wolfe, who held the position of regional field sales

manager. Wolfe, in turn, reported to Nick Nicolini, who

served as senior regional field sales manager, and to James

Colantino, who served as director of sales.

In February 1998, Richard Carlson, who had replaced

Arban as a regional field sales manager, learned that the

preexisting account of the Hervas, Sotos law firm in suburban

Chicago had been cancelled, that a new account had been

generated in the name of James Sotos, and that Arban had

misrepresented this account as “a new sales activity.”

Carlson brought this information to the attention of Wolfe,

Nicolini, and Arban. On April 1, 1998, Arban received a

warning letter from Wolfe, which stated:

I cannot overstate the seriousness of the situation. . . .

West Online Solutions will now be responsible for

supporting an account where the revenue has been cut in

half. . . . This letter will warn you that misrepresentations

concerning an account are unacceptable to WEST

GROUP. I am confident that there will be no future

occurrence of such activity. However, I must include

that any future occurrence will subject you to further

disciplinary action, up to and including termination from

West Group. 

On December 16, 1998, Wolfe, Nicolini, and Carlson met

withArban to discuss additional violations of company policy

committed by Arban and customer complaints that allegedly

had occurred in the intervening months. According to an email sent to Colantino by Wolfe the following day, the

meeting began “with a reminder that Dan has been involved

in switching names of accounts to achieve new sales that

4 Arban v. West Publishing Corp. Nos. 01-2278/2370

resulted in Dan benefitting from the sale.” Wolfe, Nicolini,

and Carlson then inquired about the “[i]nconsistency with

[Arban’s] reported numbers.” According to Wolfe, Arban

admitted “lack of follow up in getting his orders in.” Wolfe

also asked Arban about “sending in orders that do not have

signatures,” and Arban admitted that on at least nine

occasions he “did not talk to the decision maker to get a

verbal approval.” Wolfe explained to Arban that “this is not

allowable for Field Reps and is an abuse of our process.” In

his e-mail, Wolfe noted that Arban also “admitted to adding

products to the order without the customer’s permission.”

Wolfe described this as an “event that should cause

termination.” Wolfe concluded the e-mail with the following

statement:

We have numerous examples of gross negligence, fraud,

deceit and lack of moral character. These are not areas in

which corrective action can be taken. I can merely

monitor him more closely. I recommend that Dan be

terminated as an employee of West Group in the near

future. I also believe that everyone has a right to dignity

and respect, Dan should be given the chance to resign.

I welcome any and all feedback from my fellow

Managers to see if I have missed any major elements that

would allow Dan to continue. His production in [sic]

needed, I like the fellow and he truly has great sales

skills, unfortunately, the negative side outweighs the

positives. If I have not been open minded to an

alternative that I should consider, please let me know. I

have anguished over this decision and keep on coming up

with no other workable solutions.

(emphasis added). At trial, Wolfe testified that Colantino

“had the final authority to make the decision to terminate Mr.

Arban.”

In an e-mail to Colantino, Nicolini, and Wolfe sent on the

evening of December 17, Carlson noted that he “concur[red]
Nos. 01-2278/2370 Arban v. West Publishing Corp. 5

in [Wolfe’s] summary” and added that he “believe[d] that

[Wolfe’s] conclusion is well-supported.” At trial, Carlson

explained that he believed that “Arban should be terminated

from the company” as a result of “[t]he account issues; the

misrepresentations of accounts to the company; the trouble to

the customers; the problems exceeded the good from Dan.”

At trial, Nicolini also testified that he agreed with the

recommendation to terminate Arban “[b]ecause of all the

ongoing things that Dan Arban had done.” Finally, Colantino

testified that after conferring with Wolfe, Nicolini, and Ira

Tiffenberg, a director of human resources for West, he

decided to terminate Arban in the middle of December.

Colantino testified that in the days following December 17, he

communicated to Nicolini his decision to terminate Arban

after the holidays. Wolfe also testified that “within a few

days of the December 16 meeting” Nicolini told him that “we

should go ahead and terminate after the holidays.”

On December 21, Wolfe accompanied Arban on a “field

ride.” At trial, Wolfe testified that the “Field Ride Recap” he

prepared after the field ride was “simply a review of what I

saw that day with one customer” and “not a general

evaluation of Mr. Arban.” According to the recap, Arban

received a rating of “meets expectations” in all areas. Wolfe

testified that he did not “tell Arban that all the problems that

were raised at the December 16 meeting were cured,” nor did

he tell Arban that “everything with him was in good

standing.” However, Arban testified that after the ride, Wolfe

made the following notation at the bottom of the recap:

“visited five accounts, all five accounts corrected.” The

handwritten comments on the form provided in the joint

appendix are illegible. Arban also testified that at no point

during the field ride did Wolfe indicate that he “hadn’t

properly followed up from the 16th.” Arban stated that Wolfe

told him that he was “very satisfied” and did not indicate that

any action would be taken against Arban.

Early in the morning of December 23, according to his

testimony, Arban awoke with “a severe amount of acid” in his

6 Arban v. West Publishing Corp. Nos. 01-2278/2370

throat. Arban called his physician’s office and described his

condition to an associate of his physician, who called in a

prescription to a pharmacy near Arban’s residence. The

office notes from the call state “anxiety reflux . . . wants time

off work.” Arban picked up the medication later that day.

On December 24, Arban contacted Joyce Van Sciver, a

human resources representative for West. Arban “explained

what had happened” and that he would “be needing to take

some time off.” Arban was told that there were no special

forms needed to request an FMLA leave, but that he should

contact West’s disability insurance carrier. Arban also told

Van Sciver that he had an appointment to see his physician on

December 28. A “leave of absence form” prepared by Van

Sciver on December 29 indicates that Arban’s leave began on

December 25, 1998. A January 19 letter to Arban from

West’s disability insurance carrier states that Arban’s claim

for short-term disability benefits was approved for the period

between January 4 and January 21.

On December 28, Arban visited his physician, who

provided him with a note stating that he had been treated for

“severe esophagitis and stress” and adding that Arban would

be “unable to work for 3wks.” Arban hand-delivered medical

certification forms he had received from West’s disability

insurance carrier to his physician’s office on December 29,

and Arban’s physician completed the forms on January 8.

Arban notified Wolfe of his medical leave via telephone on

December 28. In an e-mail to Nicolini sent that day, Wolfe

stated, “I have not called Dan regarding this yet, nor have I

spoke with Jim about this. I would think the first move would

be to check with HR.” Arban also notified Wolfe of his

medical leave via e-mail on December 28. Wolfe forwarded

Arban’s e-mail to Nicolini shortly after it was received, with

the words, “Here is a message from Dan. I would think you

also have some questions. Let’s talk and do the right thing.”
Nos. 01-2278/2370 Arban v. West Publishing Corp. 7

On December 29, Arban received a telephone call from

Don Owens, a sales representative, who explained that “Bob

Wolfe had instructed him to get these hot lists, to get the

different accounts and pending sales he could work with.”

Later that day, Wolfe called Arban at home. Arban testified

that Wolfe “wanted to kind of follow up on Don too to make

sure those sales got in, and he wanted to find out what it was

that I had done and how much I had given Don so he could

kind of track it.”

According to Arban, Owens called again the following day

“to check up with leads again.” Arban testified that Wolfe

also called on the afternoon of December 30. At trial, Arban

described the conversation:

Q. Okay, could you describe for the jury the phone call

that you had with Mr. Wolfe on the 30th?

A. He was upset. I thought that I was giving him

minimal effort. He said that the few leads that I

gave Don, you know, that was unacceptable, you

know, as a top performer, that I would have more

going than that and that I should be able to produce

a much more substantial list. And he said that he

really needed me to put an effort towards it – really

wanted me to come up with quite a bit, you know, as

much as I possibly could so again, he could make

these sales number.

Q. Did he describe why it was important to be doing

this at this time?

A. Well, we kind of knew – he reiterated just that it was

the end of the year and that there were – there was a

lot on the line for Jim Colantino and the exclusive

users. There were a lot of points involved. People

could win certain prizes and he wanted to make sure

that everybody got as much as they could.

8 Arban v. West Publishing Corp. Nos. 01-2278/2370

***

Q. Okay, I want to give you a chance to tell the jury

how it ended. What happened to conclude your

phone conversation with Mr. Wolfe on the 30th?

A. We were in the dialogue and Bob – you know, I

explained to Bob that I felt very uncomfortable,

based on the information that I knew about the

FMLA and based on what Hartford had told me, I

wasn’t supposed to be doing any work, that any

work I did could constitute jeopardizing my benefits

that I would get. So I told him that I felt that he was

really putting me on the spot here because I knew I

wasn’t supposed to be working; my doctor said I

wasn’t supposed to be working. And what he was

requesting was more than what I had given Don

initially. And he was asking me to do quite a bit

more and I didn’t think that was in the best interest

of what I was supposed to be doing at that point. I

think he said something like, you know, well, we’ll

see, and he slammed the phone down. The

conversation was over.

According to Arban, on December 31, Owens called him at

home again and stated that “Bob asked me to give you a call

and see if you’d reconsider.” Arban refused. On January 5,

Arban received another call at home from Wolfe. Arban

testified that Wolfe repeated his request that Arban provide

Wolfe with “different accounts that I can work so when you

come back from your leave you’re ready to roll.” In response,

Arban “explained that, again, I was certain that would be

against what I was supposed to be doing. I appreciated the

effort but, you know, that was not necessary. I would handle

it when I got back.”

Sometime between December 31 and January 3, Colantino

called Tiffenberg. Tiffenberg testified that Colantino

“indicated at that time that Mr. Arban had applied for short-
Nos. 01-2278/2370 Arban v. West Publishing Corp. 9

term disability and wanted to know whether or not we could

proceed – or he could proceed with the termination of Mr.

Arban’s employment.” Tiffenberg consulted with West’s inhouse counsel, who concluded that “there were no issues in

proceeding with the termination.” When asked at trial

whether he thought there was “any problem with terminating

Mr. Arban during his leave,” Tiffenberg said no, and

explained that “it had no relationship to the reasons for the

termination, and the termination we had made that decision

prior back in mid-December before Mr. Arban even had

applied for leave.” However, Tiffenberg also testified that he

was not “aware of any records or e-mail that documents an

actual decision being ordered by Mr. Colantino.”

Late in the afternoon on January 6, Arban received another

telephone call from Wolfe. At trial, Arban described the

conversation:

Q. All right. Go ahead. Will you describe that phone

call?

A. Bob called me again and asked me to come out and

meet with him, asked me to pick a spot where I

thought I could drive out and meet him. And I,

again, reiterated this to Bob, you know, I’m not

going to be able to do this. I can’t come to meet

with you. He suggested coming to my house and

meeting with me. I told him at this point, any work

that I did I thought was a violation, and he became

more and more insistent and said that it was not in

violation, that I needed to do this, this was

something I had to do.

***

Q. Okay. How did the phone conversation conclude?

A. He said if I wanted – he asked me why I was

unwilling to do that so I said I spoke with Hartford.

10 Arban v. West Publishing Corp. Nos. 01-2278/2370

Hartford said I was not supposed to do this. He said,

well, I’ll see about that. He’s going to call Hartford

and verify or check on whether or not that was to

take place – whether I could do that or not.

According to Arban, Wolfe called him again later that day.

Q. Okay, and what – go ahead. What was said to you

by Mr. Wolfe at that time? 

A. Whole different tone at this point. He was very

upset, told me that I – he had called, spoke to

Hartford. They told him, you know, supposedly

from what he said that I had to do this and that I,

you know, my – if not, then I was going against

what was called insubordination. 

***

Q. Okay, well, go ahead. If you could just describe to

the jury what was said in that phone conversation?

A. I asked Bob what was so important and why I had to

come and meet with him on this particular day at

this particular – you know, why I had to come and

do this. They said, Dan, what I want you to do is

gather all your materials. I want you to bring your

computer, your laptop, and I want you to come out

and meet me. We’ll pick a spot and we’ll meet. I

said this seems kind of unusual. You don’t need to

have all this material to go over hot lists that you’re

going to manage while I’m gone. And he said, Dan,

I need you to get all your – he wouldn’t tell me

basically what the reason was so I finally called and

said, Bob, it sounds to me like you’re firing me. Are

you terminating me, Bob? And he said, yes. 

Q. Did he make any mention about any of the materials

or the computer that you had at your house?
Nos. 01-2278/2370 Arban v. West Publishing Corp. 11

A. Oh yeah. He said he wanted met you [sic] gather

my computer, any hot list, any company

information, anything at all that belonged to West he

wanted me to gather, put in my car and meet him. 

Q. And did you – go ahead. Can you just describe the

end of the conversation? Did you agree to do that?

A. No. I told him that I was certain that being on

medical leave, I was not supposed to do that. It

would constitute work. And I asked him if, you

know, what was so important and why he had to do

this right now. I was simply going to be on leave for

another week, why don’t we just wait until the end

of the week and then I’d be back to work and we

could address whatever the reasons were then. 

Q. What did he say? 

A. He said no. He said, I want you to go and meet with

me. . . . And he said, well, you know, Dan if I have

to, I will come to your house. We’ll do this at your

house. I’m going to have to terminate you in front

of your own family. And I was concerned about

that. I have small kids. 

When asked at trial whether it “would be a violation of the

policy . . . that West had, that you couldn’t ask an employee

to do work-related services during their leave,” Wolfe

responded, “If the leave were granted, yes.”

At trial, Arban described the final conversation that

occurred between himself and Wolfe on the evening of

January 6:

Q. Did the subject of resignation come up?

A. No, not at this point. What he said to me was, where

do you want to meet? I said, well Bob, I know for a

fact I’m not supposed to be going far. He said, no

12 Arban v. West Publishing Corp. Nos. 01-2278/2370

problem. I’ll come to you. Where would you like to

be? And I said I have no idea. He said, well, we’ve

met before at the Weber. Why don’t we use the

Weber. . . . I said Fine. I said, I’ll meet you there

and he said, Dan, you’ve got great reputation; you

know, employee file. He said, I were you, I’d be

worried about protecting that, being terminated. If

you wanted to come in and offer to me a letter of

resignation, I would probably accept it at that point.

On January 6, Nicolini forwarded an e-mail from Wolfe

regarding Arban to Colantino. In the e-mail, Nicolini stated,

“Below are the main issues we have regarding Dan Arban.”

Wolfe’s e-mail, which had been created earlier that same day,

began by stating, “You wanted an outline of events to

consider in terminating Dan Arban.” The e-mail went on to

describe the allegations against Arban, including

“misrepresentation concerning a new firm being started,” the

addition of “products to a signed contract,” double billing of

a customer’s account, the unsolicited sending of materials to

customers, and the “misrepresentation of when the trial period

would start” with respect to another client. At trial, Colantino

testified that he had no idea why Nicolini had sent him this email. Colantino also stated that the decision to terminate

Arban had been made before he received the e-mail. On

January 8, Arban prepared a letter of resignation, met Nicolini

and Wolfe, and handed his letter to Wolfe, who read it and

accepted it.

On July 14, 1999, Arban filed this lawsuit against West. In

October and November 2000, the case was tried before a jury.

West timely moved for judgment as a matter of law at the

close of all the evidence, which the district court denied after

the jury returned a verdict in favor of plaintiff in the amount

of $119,000. On March 2, 2001, the district court entered

judgment in favor of Arban in the amount of $119,000 plus

$11,448.88 in interest, $85,656.73 in attorney’s fees, and

$8,961.87 in costs. The district court declined to award front

pay or liquidated damages. On August 23, 2001, the district
Nos. 01-2278/2370 Arban v. West Publishing Corp. 13

court denied West’s renewed motion for judgment as a matter

of law or new trial. On September 17, 2001, West filed its

notice of appeal. On September 27, 2001, Arban filed his

notice of appeal.

II.

This court reviews de novo a district court’s denial of a

motion for judgment as a matter of law. Monday v. Oullette,

118 F.3d 1099, 1101 (6th Cir. 1997). This court does not

weigh the evidence, evaluate the credibility of witnesses, or

substitute its judgment for that of the jury. Instead, this court

views the evidence in the light most favorable to the party

against whom the motion is made and gives that party the

benefit of all reasonable inferences. The motion should be

granted, and the district court’s decision reversed, only if

reasonable minds could not come to a conclusion other than

one in favor of the movant. Wehr v. Ryan’s Family Steak

Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995).

The FMLA entitles an eligible employee to as many as

twelve weeks of leave during any twelve-month period if the

employee has 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). A “serious

health condition” is defined as “an illness, injury, impairment,

or physical or mental condition that involves (A) inpatient

care in a hospital, hospice, or residential medical care facility;

or (B) continuing treatment by a health care provider.” Id. at

§ 2611(11). An employee need not specifically mention the

FMLA when taking leave. All the employee must do is notify

the employer that FMLA-qualifying leave is needed. 29

C.F.R. § 825.303(b). 

Two distinct theories for recovery on FMLA claims exist.

The “entitlement” or “interference” theory arises from

§ 2615(a)(1), which states that “[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,”

14 Arban v. West Publishing Corp. Nos. 01-2278/2370

and from § 2614(a)(1), which provides that “any eligible

employee who takes leave . . . 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 the leave

commenced; or (B) to be restored to an equivalent position.”

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 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 violation has occurred.

King v. Preferred Technical Group, 166 F.3d 887, 891 (7th

Cir. 1999).

The issue is simply whether the employer provided its

employee the entitlements set forth in the FMLA– for

example, a twelve-week leave or reinstatement after

taking a medical leave. Because the issue is the right to

an entitlement, the employee is due the benefit if the

statutory requirements are satisfied, regardless of the

intent of the employer.

Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st

Cir. 1998). 

The substantive right to reinstatement provided in

§ 2614(a)(1), however, “shall [not] be construed to entitle any

restored employee to . . . any right, benefit, or position of

employment other than any right, benefit or position to which

the employee would have been entitled had the employee not

taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Similarly, the

right to non-interference with medical leave also is not

absolute. “[A]n 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
Nos. 01-2278/2370 Arban v. West Publishing Corp. 15

request than he or she did before submitting that request.”

Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th

Cir. 1998). An employee lawfully may be dismissed,

preventing him from exercising his statutory rights to FMLA

leave or reinstatement, but only if the dismissal would have

occurred regardless of the employee’s request for or taking of

FMLA leave. Id. 

At trial, Arban argued that West denied him his substantive

right to reinstatement and interfered with his substantive right

to take FMLA leave. First, with respect to Arban’s

reinstatement claim, Arban “must establish, by a

preponderance of the evidence, that he is entitled to the

benefit he claims.” Rice v. Sunrise Express, 209 F.3d 1008,

1018 (7th Cir. 2000).

[I]f the employer claims that the employee would have

been discharged . . . the employee, in order to establish

the entitlement protected by § 2614(a)(1), must, in the

course of establishing the right, convince the trier of fact

that the contrary evidence submitted by the employer is

insufficient and that the employee would not have been

discharged . . . if he had not taken FMLA leave.

Id. Here, West presented considerable evidence that the

decision to terminate Arban had been made before Arban

went on medical leave, but that his actual termination had

been deferred until after the holidays. While an employer has

the discretion to fire an at-will employee for poor

performance, at trial Arban cast doubt upon both the timing

of and the reasons for the decision to terminate him. For

example, the December 17 e-mail from Wolfe to Colantino

suggests that no final decision had been reached. In that email, Wolfe states: “I welcome any and all feedback from my

fellow Managers to see if I have missed any major elements

that would allow Dan to continue. . . . If I have not been open

minded to an alternative that I should consider, please let me

know.” Arban also testified that following the “field ride” on

December 21, Wolfe told Arban that he was “very satisfied.”

16 Arban v. West Publishing Corp. Nos. 01-2278/2370

The “Field Ride Recap” prepared after the ride also stated that

Arban “meets expectations” in all areas. In addition, the jury

considered an e-mail from Wolfe that Nicolini had forwarded

to Colantino on January 6, which stated, “You wanted an

outline of events to consider in terminating Dan Arban.”

(emphasis added). While this e-mail is open to several

interpretations, the jury was entitled to conclude that West

was continuing to study the matter and had not come to a final

decision by January 6. As the Seventh Circuit has observed,

“the timing of this decision could lead a fact finder to infer

that the employee would not have been fired absent her taking

of leave (if, for example, a supervisor who had been aware of

problems with an employee did not decide to fire the

employee until she took leave, and the supervisor based the

firing on the incidents of which the employer had already

been aware).” Kohls v. Beverly Enters. Wisconsin, Inc., 259

F.3d 799, 806 (7th Cir. 2001). In this case, while the

evidence permitted differing inferences, sufficient evidence

was presented at trial for the jury to conclude that West

denied Arban his substantive right to reinstatement.

Next, with regard to his interference claim, the jury was

entitled to find in Arban’s favor if he presented sufficient

evidence to establish that he was denied his substantive rights

under the FMLA “for a reason connected with his FMLA

leave.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d

955, 961 (10th Cir. 2002). “Such a reason need not be

retaliation.” Id.; see also Miller v. Defiance Metal Prods.,

Inc., 989 F.Supp. 945, 946 (N.D. Ohio 1997) (noting that

plaintiff’s termination due to absenteeism caused by a

medical condition constituted “an interference under

FMLA”). Twenty-nine C.F.R. § 825.220(b) also explains

that “interfering with” the exercise of an employee’s rights

under the FMLA includes “discouraging an employee from

using [FMLA] leave.”

West argues that “it is undisputed that West promptly

granted Arban’s request for leave without any further

questions” and that Arban’s “allegations are, therefore,
Nos. 01-2278/2370 Arban v. West Publishing Corp. 17

insufficient to state a claim for interference.” As support for

this proposition, West cites Dodgens v. Kent Mfg. Co., 955

F.Supp. 560, 564 (D.S.C. 1997). In Dodgens, the court found

that a plaintiff employee’s claim that his FMLA rights were

“interfered with” when a plant manager called him twice

during his medical leave and requested that he take a

demotion was not cognizable under the FMLA. West’s

reliance on Dodgens is misplaced. Unlike the plaintiff in

Dodgens, who was not asked to work while on medical leave

but rather to accept a demotion upon returning to work, Arban

presented evidence that he was asked to continue to perform

work-related tasks while ostensibly on medical leave. Arban

testified that after notifying Wolfe of his medical leave on

December 28, Wolfe called him on several occasions and

requested that he provide customer lists and pending sales.

Moreover, Arban stated that during a January 6 conversation

with Wolfe, he explained that he could not meet with Wolfe

because he was on medical leave, to which Wolfe responded

that “he’s going to call [West’s disability insurance carrier]

and verify or check whether or not” Arban could meet with

him. Shortly thereafter, Wolfe called Arban and told him that

he had spoken with West’s disability insurance carrier, which

had “told him, you know, supposedly, from what he said that

I had to do this [meet with Wolfe].” Arban then asked him

whether he was being fired, and Wolfe responded that he was.

In light of this evidence, the jury was entitled to conclude that

Arban was terminated for reasons related to his FMLA leave.

As previously mentioned, in addition to the substantive

guarantees provided by the act, the FMLA also affords

employees protection in the event they suffer retaliation or

discrimination for exercising their rights under the FMLA.

Specifically, “[a]n employer is prohibited fromdiscriminating

against employees . . . who have used FMLA leave,” nor can

they “use the taking of FMLA leave as a negative factor in

employment actions.” 29 C.F.R. § 825.220(c). This

prohibition includes retaliatory discharge for taking leave.

Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314

(6th Cir. 2001). These protections have been described as

18 Arban v. West Publishing Corp. Nos. 01-2278/2370

proscriptive in nature. Hodgens, 144 F.3d at 160. If the

employer is found to have retaliated against the employee for

using FMLA leave, the employer is subject to a claim for

compensatory damages and, unless the court finds the

violation occurred in good faith, additional liquidated

damages. 29 U.S.C. § 2617(a)(1)(A).

With regard to Arban’s retaliatory discharge claim, there

was sufficient evidence to support the jury’s conclusion that

West retaliated against Arban for taking leave under the

FMLA. At trial, Arban testified that during the December 21

field ride Wolfe stated that he was “very satisfied” with

Arban’s performance. The “Field Ride Recap” prepared by

Wolfe also stated that Arban “meets expectations in all

areas.” West does not dispute that after the field ride, Arban

engaged in protected activity by taking leave pursuant to the

FMLA, nor does West dispute that its termination of Arban

qualifies as an adverse employment action. The evidence also

supports the jury’s finding of a causal link between Arban’s

participation in the protected activity (FMLA leave) and the

adverse employment action (his termination). Although

“temporal proximity is insufficient in and of itself to establish

that the employer’s nondiscriminatory reason for discharging

an employee was in fact pretextual,” Skrjanc, 272 F.3d at 317,

the jury weighed additional evidence, including evidence of

Arban’s performance appraisals and the demeanor of

witnesses on the stand. Moreover, as previously discussed,

Arban testified that after notifying Wolfe that he had taken

medical leave, Wolfe repeatedly called Arban at home “to get

different accounts and pending sales he could work with.” 

Arban stated that Wolfe had indicated that “there was a lot on

the line for Jim Colantino and the exclusive users” and that

“[p]eople could win certain prizes and he wanted to make sure

that everybody got as much as they could.” Arban also

explained that when he told Wolfe that he “wasn’t supposed

to be doing any work,” Wolfe responded with anger. Arban

added that Wolfe described Arban’s failure to assist him as

“insubordination.” Although West argues that “Arban

changed his story so that it appears that Wolfe was upset that
Nos. 01-2278/2370 Arban v. West Publishing Corp. 19

he would not work or meet with him during his leave,” as

previously explained, the jury is in a better position to judge

witness credibility than the appellate court. The record thus

contains evidence that supports the jury’s finding that West’s

explanation for Arban’s termination was disingenuous and

that the real reason was the taking of FMLA leave.

III. 

A district court’s disposition of a motion for a new trial is

reviewed for an abuse of discretion. Workman v. Frito-Lay,

Inc., 165 F.3d 460, 467 n. 7 (6th Cir. 1999). This court has

defined an abuse of discretion as a “definite and firm

conviction that the trial court committed a clear error of

judgment.” Cincinnati Ins. Co. v. Byers, 151 F.3d 574,

578-79 (6th Cir. 1998) (quotation omitted). 

West argues that it is entitled to a new trial “based upon

critical errors in the jury instructions and the verdict form.”

Specifically, West argues that “the jury was not given any

guidance whatsoever regarding what constitutes‘interference’

under the FMLA.” West contends that the jury improperly

could have found it guilty of “interference” while at the same

time “rejecting Plaintiff’s arguments that he was fired

because of his leave.” 

This court reviews jury instructions as a whole to determine

whether they fairly and adequately submitted the issues and

applicable law to the jury. Jones v. Federated Fin. Reserve

Corp., 144 F.3d 961, 966 (6th Cir. 1998). A party is not

entitled to a new trial based upon alleged deficiencies in the

jury instructions unless the instructions, taken as a whole, are

misleading or give an inadequate understanding of the law.

Id. Here, the district court’s instructions to the jury state, in

relevant part:

Under the Family and Medical Leave Act it is unlawful

for any employer to interfere with, restrain or deny the

exercise of or the attempt to exercise any right under the

20 Arban v. West Publishing Corp. Nos. 01-2278/2370

Family and Medical Leave Act. It is also unlawful under

the Family and Medical Leave Act for an employer to

discharge or in any other manner discriminate against

any other individual for opposing any practice made

lawful by the Family and Medical Leave Act.

***

In order for Plaintiff to prove that West discriminated or

retaliated against him because he took leave, Plaintiff

must establish the following evidence by a

preponderance of the evidence.

(1) he engaged in an activity protected by the Act;

(2) that this exercise of his protected rights was known

to the defendant;

(3) that defendant thereafter took an employment action

adverse to the plaintiff; and

(4) that there was a causal connection between the

protected activity and the adverse employment

action.

To show such a causal connection [between the protected

activity and the adverse employment action], Plaintiff

must show that the reasons given for his termination

were not the true reasons, and that the true reason for his

termination was that he took a medical leave.

In this case, West claims that Plaintiff was not terminated

because of his leave, but because of misconduct. In order

to prevail on his retaliation claim, Plaintiff must also

prove, by a preponderance of the evidence, that West’s

stated reason for discharging Plaintiff is not the true

reason, but merely a pretext for retaliation, which means

that the true reasons for his termination were not the

reasons stated by West, but that Plaintiff took a medical

leave.

***
Nos. 01-2278/2370 Arban v. West Publishing Corp. 21

However, the plaintiff must prove by a preponderance of

the evidence that he would not have been discharged had

he not taken Family and Medical Leave Act leave. 

Upon examination of the jury instructions, West’s

arguments lack merit. The trial in this matter was bifurcated,

and following the liability phase the jury answered “yes” to

the following question: “Did defendant West Publishing

Corporation violate plaintiff Daniel Arban’s rights under the

Family and Medical Leave Act?” This court must presume

that the jury followed the district court’s instructions. Weeks

v. Angelone, 528 U.S. 225, 234 (2000). As previously

discussed, Arban presented evidence sufficient for the jury to

find in his favor under an interference theory premised upon

the denial of his substantive rights under the FMLA “for a

reason connected with his FMLA leave.” Diffee

Ford-Lincoln-Mercury, Inc., 298 F.3d at 961. The foregoing

instructions ensured that the jury could not find West liable or

award any damages unless it found that West discharged

Arban for taking medical leave – a finding that also would

support Arban’s interference claim. Since the instructions,

taken as a whole, indicate that the jury was required to find

that the “true reason for [Arban’s] termination was that he

took a medical leave,” no error has been demonstrated.

IV.

Under the FMLA, a prevailing plaintiff is entitled to receive

damages in the amount of “any wages, salary, employment

benefits, or other compensation denied or lost to such

employee” as a result of the adverse employment action. 29

U.S.C. § 2617(a)(1)(A)(i)(I). The FMLA also provides that

“the employer . . . shall be liable . . . for equitable relief as

may be appropriate.” 29 U.S.C. § 2617(a)(1)(B). In this

case, the district court declined to submit the issue of front

pay to the jury, concluding that the FMLA “does not provide

for a remedy of front pay” and adding that “there is in this

case insufficient evidence for the question of front pay.”

Arban now argues that the district court erred “by ruling that

22 Arban v. West Publishing Corp. Nos. 01-2278/2370

1

In an unpublished decision concerning an FMLA claim, this court

previously has held that “[t]he appropriateness of reinstatement and front

pay, as equitable remedies, are within the discretion of the district court.”

Taylor v. Invacare Corp., 64 Fed. Appx. 516, 523, 2003 WL 21212674,

at *6 (6th Cir. May 21, 2003).

the FMLA cannot allow a recovery of front pay, and by not

properly considering an award of front pay to Mr. Arban, at

least as an alternative to reinstatement.”

The issue of whether front pay is available under the FMLA

is a question of law that this court reviews de novo. See

Gottfried v. Med. Planning Serv., 280 F.3d 684, 690 (6th Cir.

2002). Although this circuit has not directly considered this

question,1 other circuits have found that front pay is an

equitable remedy available under the FMLA, as have at least

two district courts in this circuit. See, e.g., Diffee FordLincoln-Mercury, Inc., 298 F.3d at 965; see also Nichols v.

Ashland Hosp. Corp., 251 F.3d 496, 503-504 (4th Cir. 2001);

Churchill v. Star Enters.,183 F.3d 184, 193 (3d Cir. 1999);

Rogers v. AC Humko Corp., 56 F.Supp.2d 972, 978 (W.D.

Tenn. 1999); Bryant v. Delbar Products, Inc., 18 F.Supp.2d

799, 810 (M.D. Tenn. 1998). Neither the district court nor

West cites any cases to the contrary. Instead, West argues

that “the plain language of the statute does not contemplate

any future damages as an available remedy under the FMLA,

because the language clearly identifies damages in the past

tense.” However, West focuses solely upon the language of

29 U.S.C. § 2617(a)(1)(A)(i)(I) and ignores the language of

29 U.S.C. § 2617(a)(1)(B), which provides for equitable

remedies. Although West adds that the legislative history

does not contain “any discussion of, or even reference to, the

availability of front pay or future damages under the FMLA,”

West has not identified any explicit prohibition against front

pay. In light of these authorities and the FMLA’s provision

for equitable remedies, we find that the FMLA provides for

front pay.
Nos. 01-2278/2370 Arban v. West Publishing Corp. 23

While the determination of the precise “amount of an award

of front pay is a jury question,” the initial “determination of

the propriety of an award of front pay is a matter for the

court.” Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398 (6th

Cir. 1993) (ADEA claim). This court reviews the district

court’s conclusions regarding the propriety of an award of

front pay for an abuse of discretion. See Simpson v. Ernst &

Young, 100 F.3d 436, 444 (6th Cir. 1996) (ERISA claim) (“A

decision to submit the issue of front pay to the jury is

committed to the sound discretion of the trial court and is

reviewed on appeal for abuse of discretion.”).

Although “[r]einstatement is the presumptively favored

equitable remedy,” it is not appropriate “where the plaintiff

has found other work.” Roush, 10 F.3d at 398. In this case,

Arban testified that he accepted an offer to serve as a field

sales representative for Matthew Bender, a legal publishing

company, in July or August of 1999. The fact that

reinstatement is inappropriate, however, does not mean that

an award of front pay is required. “No per se rule governs the

appropriateness of front pay damages in a particular case. . . .

Ultimately, the question to be answered is whether front pay

damages are needed in a particular case to make the plaintiff

whole.” Wilson v. Int’l Bro. of Teamsters, 83 F.3d 747,

756-57 (6th Cir. 1996). Several factors must be considered

when determining the propriety of an award of front pay,

including “an employee’s duty to mitigate, the availability of

employment opportunities, the period within which one by

reasonable efforts may be re-employed, the employee’s work

and life expectancy, the discount tables to determine the

present value of future damages and other factors that are

pertinent on prospective damage awards.” Roush, 10 F.3d at

399 (quoting Shore v. Federal Express Corp., 777 F.2d 1155,

1160 (6th Cir. 1985)). 

In this case, the district court refused to submit the issue of

front pay to the jury, stating:

24 Arban v. West Publishing Corp. Nos. 01-2278/2370

Number two is the Court believes that there is in this case

insufficient evidence for the question of front pay even if

it were allowed to go to the jury for the following

reasons: Number one, is there has been really – the

proofs here are that in terms of loss wages, loss

opportunity, and so forth, that there’s just not enough

evidence to go – especially on what he has made, and I

understand that part of it had to do with the law school

and so forth, but still based upon his mitigation of

damages which he has none, there is no reason that a

reasonable jury could believe that there’s going to be

front pay, number one. 

A review of the evidence presented at trial indicates that the

district court’s decision was not an abuse of discretion. Arban

testified that after accepting employment with Matthew

Bender in July or August of 1999, his compensation was

$45,000. Arban also explained that in 2000, he became a

field sales manager, a position that he agreed was “similar to

the field sales manager position [he] had with West dating

back to 1997.” Through the first eleven months of 2000,

Arban had earned $185,000, $100,000 of which was

attributable to the opening of a new law school in his area.

Arban’s earnings as an employee of West in 1998, by

contrast, were $169,412. Consequently, Arban has shown no

damages warranting an award of front pay. 

Arban argues that “[a] comparison of the earned wages in

1998 to the earned wages in 2000 clearly is not proper or

relevant in the determination of Mr. Arban’s front pay” and

that “a legitimate comparison for calculating front pay is the

amount Mr. Arban would have earned and the amount Mr.

Arban was earning.” Arban, however, did not provide

evidence by which the jury could make what he claims would

be a more accurate estimate of his earnings. “A plaintiff who

seeks an award of front pay must provide the district court

with the essential data necessary to calculate a reasonably

certain front pay award.” Bruso v. United Airlines, Inc., 239

F.3d 848, 862 (7th Cir. 2001); see also Tyler v. Union Oil Co.
Nos. 01-2278/2370 Arban v. West Publishing Corp. 25

of Cal., 304 F.3d 379, 402 (5th Cir. 2002) (affirming district

court’s denial of front pay where an award would be “purely

speculative”). At trial, William King, Arban’s economic

expert, testified as follows:

Q. Did you come up with a number for front pay,

taking the October 30 date and going forward?

A. Certainly.

Q. And what number did you come up with for that?

A. One Million, Eight Hundred and Eighty-Seven

Thousand, Three Hundred Eighty-Four Dollars.

Q. Now–

THE COURT: Hang on. Front pay is what Mr.

Arban told you? You didn’t do

any research or anything else?

It’s what he said that he thinks he

could make or not make?

THE WITNESS: Well, it’s based on that and the

Social Security Wage Index. 

THE COURT: But it’s all based on what he hold

you?

THE WITNESS: Yes. The two years at the twenty

percent, and then the Social

Security Wage Index.

THE COURT: But all you did was take the

Social Security formula and add it

to what he told you–

THE WITNESS: Correct.

26 Arban v. West Publishing Corp. Nos. 01-2278/2370

THE COURT: – he thinks he could have made

somewhere else?

THE WITNESS: Well, he had said he was going to

go up thirty percent a year, and I

would do so–

THE COURT: But it’s all based on what he told

you?

THE WITNESS: Yes. 

Arban’s evidence regarding front pay was purely speculative.

On the evidence before it, the district court thus did not abuse

its discretion in declining to submit the issue of front pay to

the jury.

V.

Arban contends that the district court erred in failing to

award liquidated damages under the FMLA. The FMLA

provides that a court shall award liquidated damages equal to

the damages due to lost compensation plus interest. 29

U.S.C. § 2617(a)(iii). However, if an employer proves that it

acted “in good faith and that the employer had reasonable

grounds for believing that the act or omission was not a

violation” of the FMLA, the court may reduce the damages.

Id.

The FMLA does not explicitly define the term “good faith.”

However, this court previously has turned to the Fair Labor

Standards Act (FLSA), which contains similar remedial

provisions, for guidance in interpreting the FMLA. Both the

FMLA and the FLSA provide that an employer “shall” be

liable for damages and liquidated damages and that the

district court “may” reduce the amount of liquidated damages

if good faith is established. See 29 U.S.C. § 216(b)

(providing damages under FLSA); id. at § 260 (providing

good faith defense to liquidated damages under FLSA); id. at
Nos. 01-2278/2370 Arban v. West Publishing Corp. 27

§ 2617(a) (FMLA). “[T]he legislative history of the FMLA

reveals that Congress intended the remedial provisions of the

FMLA to mirror those in the FLSA.” Frizzell, 154 F.3d at

644 (citing S. Rep. No. 103-3, at 35 (1993), reprinted in 1993

U.S.C.C.A.N. 3, 37 (“[The FMLA’s] enforcement scheme is

modeled on the enforcement scheme of the FLSA. . . . The

relief provided in FMLA also parallels the provisions of the

FLSA.”)). 

Under the FLSA, a district court may not exercise its

discretionary authority to reduce or eliminate a liquidated

damages award unless the employer first sustains its burden

of proving that its “failure to obey the statute was both in

good faith and predicated upon such reasonable grounds that

it would be unfair to impose upon it more than a

compensatory verdict.” Elwell v. Univ. Hosps. Home Care

Servs., 276 F.3d 832, 840 (6th Cir. 2002) (quotation omitted)

(FLSA context). This court thus must consider whether West

sustained its burden. “Although in the final analysis, we

review a district court’s decision on liquidated damages for

abuse of discretion, that discretion must be exercised

consistently with the strong presumption under the statute in

favor of doubling.” Elwell, 276 F.3d at 840 (quotation

omitted). 

The district court found that West acted in good faith

because “they made their decision even before the medical

leave was – the Family Medical Leave Act request was even

put in. They wanted to delay it because of the holidays.”

However, as previously noted, the district court’s instructions

to the jury specifically state:

To show such a causal connection [between the protected

activity and the adverse employment action], Plaintiff

must show that the reasons given for his termination

were not the true reasons, and that the true reason for his

termination was that he took a medical leave.

28 Arban v. West Publishing Corp. Nos. 01-2278/2370

In this case, West claims that Plaintiff was not terminated

because of his leave, but because of misconduct. In order

to prevail on his retaliation claim, Plaintiff must also

prove, by a preponderance of the evidence, that West’s

stated reason for discharging Plaintiff is not the true

reason, but merely a pretext for retaliation, which means

that the true reasons for his termination were not the

reasons stated by West, but that Plaintiff took a medical

leave.

As previously noted, this court presumes that the jury

followed the district court’s instructions. Weeks, 528 U.S. at

234. In finding in favor of Arban, the jury thus necessarily

found that West made its decision because Arban “took a

medical leave,” not because of Arban’s misconduct. “[W]hen

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.” Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at 965.

In this case, the district court disregarded the jury’s finding –

that West’s decision to fire Arban was a result of his medical

leave and not his misconduct – in considering the liquidated

damages issue. Instead, the district court made its own

contrary finding, which served as the basis for its denial of

liquidated damages. This was error. The district court thus

abused its discretion when it denied Arban liquidated

damages. 

VI. 

In its April 26, 2001, order, the district court granted

West’s motion for stay of execution of the judgment “pending

the disposition of post-trial motions and, if necessary, during

appeal.” Arban now argues that for West to obtain a stay of

execution of the judgment, West must give a supersedeas

bond pursuant to Fed. R. Civ. P. 62(d). This court reviews a

district court’s denial of a supersedeas bond for an abuse of
Nos. 01-2278/2370 Arban v. West Publishing Corp. 29

discretion. Kennedy v. Uniroyal Pension Plan, 937 F.2d 608,

1991 WL 134613, at **8 (6th Cir. 1991) (unpublished). 

Rule 62(d) entitles a party who files a satisfactory

supersedeas bond to a stay of money judgment as a matter of

right. Federal Prescription Serv., Inc. v. Am. Pharm. Ass’n,

636 F.2d 755, 759 (D.C. Cir. 1980) (citing Am. Mfr. Mut. Ins.

Co. v. Am. Broad. Paramount Theatres, Inc., 385 U.S. 931

(1966)). However, “the Rule in no way necessarily implies

that filing a bond is the only way to obtain a stay. It speaks

only to stays granted as a matter of right, it does not speak to

stays granted by the court in accordance with its discretion.”

Id. Arban claims that West must make “at least a showing

that it has adequate resources to satisfy the bond.” West has

done so here. At the hearing on West’s motion for stay

without bond on April 25, 2001, counsel for West stated that

“the revenues of the group of which West is a part is

approximately 2.5 billion.” The Seventh Circuit has noted

that “an inflexible requirement of a bond would be

inappropriate . . . where the defendant’s ability to pay the

judgment is so plain that the cost of the bond would be a

waste of money.” Olympia Equip. Leasing Co. v. Western

Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986). In light of

the vast disparity between the amount of the judgment in this

case and the annual revenue of the group of which West is a

part, the district court’s decision to grant a stay without a

bond was not an abuse of discretion.

VII. 

For all of the foregoing reasons, we affirm the district

court’s denial of West’s motion for judgment as a matter of

law or for a new trial, reverse and remand the trial court’s

denial of an award of liquidated damages, affirm the district

court’s denial of Arban’s claim for front pay, and affirm the

district court’s grant of a stay without bond.