1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0341P (6th C ir.) File Name: 03a03 41p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
D ANIEL R. A RBAN ,

Plaintiff-Appellee/ Cross-App ellant,

v.

W EST P UBLI SHING C ORP ., Defenda nt-Appel

lant/ Cross-Appellee. X

- - - -
> , - - - - - N Nos. 01-2278/2370

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-73520—Bernard A. Friedman, D istrict Judge.

Argued: June 13, 2003 Decided and Filed: September 24, 2003

Before: KEI TH, MOORE, and GIBB ONS, Circuit Judges.

_________________ COUNSEL

ARGUED: Abraham Singer, PEP PER HAMILT ON, Detroit, Michi gan, for Appellant. William G. Tishkoff, LONG, BAKER & TISHKO FF LL P, Ann Arbor, Michigan, for Appellee. ON BRI EF: Abraha m Singer , Michelle 2 Arban v. West Publishing Corp. Nos. 01-2278/2370

Motowski Lund, PEPPER HAMIL TON, Detroit, Michigan, for Appellant. William G. Tishkoff , Marvin B . Bartle

tt, LONG, BAKER

& TISHKOFF

LL P, Ann Arbor, Michigan, for Appellee.

_________________

OPINION

_________________ JU LIA SMITH GI

BBONS, Circuit Judge. Daniel R. Arban brought this action again st West Publishin g Corporation (West) pursuant to the Family Medic al and Leave Ac t (FMLA), 29 U.S.C. § 2611 et seq . Arban al leged that West violated the FMLA by

ter m inating him while he was on medical le av e a nd by fail ing to reinstate him at the complet ion of the le ave. Ar ban also a

lleged that West violated the FMLA by

interfering with, restraining, or deny ing him hi s right to

take an FMLA lea

ve. The case was tried be fo re a j ur y, 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 appe als. Arban cross-a ppeals th e district court’s denial of front pay and liquidated

damages and the district court’s gr ant of a stay withoutbond. For the reasons set forth below, we affirm the districtcourt’s

denial of

West’s motion for judg me nt as a matter of law or for a new

trial, re verse and remand the trial court’s denial of

an award of liquidated damages, affirm the dis trict court’s denial of Arban’s claim for front pay , a n d affirm the district court’s grant of a stay without bond.

I.

Arban began working as a sales representa tive for Lawy

er’s Cooperative Publishing in 1995. Lawy er’s Cooperative Publishing me rge d with West in 1996. Arb an has a documented

history of ga strointestinal problems, including chronic and severe esophagitis and irritabl e bowel syndrome, whichbegan in the middle of 1995 or early 1996. In 1997,Nos. 01-2278/2370 Arban v. West Publishing Corp. 3

Arban was promoted f

ro m a field sales representative to a regional field s a les manager. I n this position, he supervised other repres entative s, whil e con ti nui ng t o m ake sal es. In January 1998, Arban voluntarily re turned to the p osition of field sales representative in order to spend more time with his children. At that time Arban’s immediate su pervisor was Rob ert Wolfe, who

held the p osition of r

egiona l field sale s manager. Wolfe, in turn, reported to Nick Nicolini, who served as senior re gional field sales manager, and to James Colantino, who serv ed as dir ector of sales.

InFebruary

1998, Richard Carlson, who had replaced Arban as a regional fiel d sales manager, learned tha t the preexisting account

of the He rvas, Soto s law fir

m in suburban Chica go had been cancelled, that a new a ccount had been generated in the nam e of James S o tos, and that Arban had misrepresented

th is account as “a new sales activity .” Carlsonbrought this information to th e attention of Wolfe, Nicoli ni, and Arban. On April 1, 1998, Arban receive d a warning letter from Wolfe, which stated:

Icannot ov erstat e the seriousness of the situation. . . . West Online Solutions will no w be r esponsible for supporting anaccoun

t where t he reve nue has b een cut i

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

an account are unaccepta ble to W EST GROUP. I am confident that there w i ll be no future
occurrenceof such activity. Howe ver, I mus t include that any future

occurrence will subject y ou to further disciplinary

action, up to and including termination from West Group.

On December

16, 1998, Wo lfe, Nic olini, and Carlson met with Ar ban to discuss additional violations of company policy committed

by Arban and customer complaints that allege dly hado ccurred in the intervening months. Accordingto an email sent to Co la ntino by Wolfe the following day , the meeting began “with a

reminder that Dan has been involved inswitching

names of

accoun ts to achie

ve n ew sales that 4 Arban v. West Publishing Corp. Nos. 01-2278/2370

res ulted in Dan be

nefitting from the s ale.” Wol fe, Nico lini,
a nd Car lson then i

nquired a bout the “ [i]nconsiste

ncy with [Arban’s ] reported nu

mber s.” According to Wolfe, Arban admitted “lack of

follow up in gettinghis orders in.” Wolfe also asked Arban about “sending in orders tha t do not have signatures,” and Arban admitted that on at least nine occasions he “did not talk to the decision maker t o g et a verbal approval.” Wolfe explainedto Arban that “this is not allowabl e for Field Reps and is an abuse of our pro ces s.” In his e-mail, Wolfe noted tha t Arban a lso “admit

ted to adding produ cts to the order without the customer’s permission

. ” Wolfe describ ed th is a s an “eve nt that sho

uld cause termination.” Wolfe concluded the e-mail with the following statemen t:

We have numerous examples of gross negligenc e, fraud, deceit and lack of moral c

haract er. The se are n

ot area s in whichcorrective action can be taken. I can merely monitor him mo r e closely. I

recommend that Dan be terminated

as an employee

of West Grou

p in the near future. I als o believe

that eve ryone has a

right to dignity and respect, Dan should be given the cha nce to resign.

I welcome

any and al

l fe edback

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 tru ly has gr eat sales skills, unfortunately, t he negative side outweighs the positives. If I have not b een open minded to an alternative that

I should c onsider, p lease let me kn ow. I have anguished over

this decision and keep on coming up with no othe

r worka ble solutions. (emphas is added). At trial, Wolfe testified that Colantino “had the final au

thority to make th e decisi on to termi nate Mr. Arban.”

In a n e-mail to Colantino, Nicolini, and Wolfe sent on the eveningof

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 “ belie ve[d] that [Wolfe’s] conclusion is well-supported.” At trial, Carlson explained that he believed that “Arban

should be terminated fromthe company”

as a result of “[t]he accou nt issues; the misrepresentations of accounts to the co mp an y; the troub le to the customers; the problems exceeded the g ood fr om Dan.” At trial, Nicolini also testified that he agreed with the
recom mendationto termina te Arban “[b]ecau se of all t

h e ongoingthings that Dan Arban had done.” Finally , Colantino testified that after conferring with Wolfe, Nicolini
, and Ira Tiffen berg, a director of human resources for West, he deci ded to terminate Arban in the middle of Decem ber

. Colantino testified that in the days following December 17, he communicated

to Nicolini his decision to terminate Arban
a fter the holida

ys. Wolfe also

testifie d that “wi

t hin a fe w da ys of the December 16 meeting” Nicolini told him that “we should go ahead and terminate after the holidays.”

OnDecember 21, W olfe ac companie d Arban on a “fie ld ride.” At trial, Wolfe testified that the “Field Ride Recap” he prepared after the field ride was “simply a re view of wh at I
saw that day

with one c

usto mer ” and “not a general evaluation

o f M r. Arban.” According to the re cap, 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 De cember

16 meetin

g were cured,” nor did he tell Arban that “every thing with him was in good standing.” However, Arban testified that after the ride, Wolfe made the fo llow ing notati on at the bottom of the recap: “visited five acc ou nts, all five accounts corrected.” The handwritten

comments on the f

orm provided in the joint appendix are illegible. Arban also testified that at no point during the fie ld ride did Wolfe indicate that he “hadn’t properl y 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.

Earl y in the mornin

g of De cember

23, acc ording t

o his te st im on y, Arban awoke with “a severe amount of acid”in his 6 Arban v. West Publishing Corp. Nos. 01-2278/2370

throat. Arban c alled his

physician’s offic e and described his condition to an ass ociate of his physician, w ho called in a prescription

to a phar

macy near Ar ban’s re si den ce. The office notes from the call state “anxiety reflux

. . . wants ti

me of f w or k. ” A rb an pi ck ed up th e m ed ic at io n l at er th at da y.
OnDecember 24, Arban contacted Joyc e Van Sciver, a humanresources representative for West. Arban “explained what had ha ppene d” and that h e woul d “be n eedin g t o take
some ti me off.” Arban was told that there were no special forms needed

to reque st an FML

A leave , but t

hat he should contact West’s disa

bility insuranc e carr

ier. Arb an also to ld Van Sciver that he ha d an appo intment to s ee his physician on December

28. A “leave of absence form” prep are d by Van Sciver on December 29 indicates that Arban’sleave began on December

25, 1998. A January 19 lett er to Arban from West’s disability

insuranc e carr

ier state s that Arb an’s cla im for short-term disability benefits was approved for the period between January

4 and January 21.

OnDecember 28, Arban visited his ph ysi cian, who provided him with a note stating that he had been treated for “severe esophagitis and str ess” and adding that

Arban wo

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

form s he had re ceived f rom West’s

disability insura nce carrier to his phy sician’s office on December 29, and Arban’s phy sician completed the forms on January 8.

Arban notified Wolfe of

his medical leave via telephone on December

28. I n an e-ma il to Nicoli

ni sent t hat day, Wolfe stated, “I h ave notcalled Dan regarding this yet, nor have I spoke with Jim about this. I would think the first move woul d be to check with HR.” Arba n also noti fied 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 word s, “Her

e is a message from Dan. I

would think you also have some

questions

. Let’s talk and do the rig ht thing.”Nos. 01-2278/2370 Arban v. West Publishing Corp. 7

OnDecember 29, Arban r eceived a telephone call from DonOwens, a sales representative, who explained that “Bob Wol fe had in structed him to get these hot lists, to get the different accoun ts and pen

ding sal es h e could work with.” Later that da y, 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 mu ch I had giv en Don so he could kind of track it.” According

to Arban, Owens called again the following day “to chec k up w ith le ads a

gai n.” A rban testi fied that W o lf

e also called on the afternoon of December 30. At trial, Arban described the conversation: Q. Ok ay, could you

describe for the jury

the phone

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

A. He was upse

t. I thought that I

wa s givinghim minimal effort. He said that the few l eads tha

t I gave Don, y

ou know, that was un acceptable, y ou know, as a top performer , t hat I would have more going than that and that I should be able to produce
a much more

substantia

l list

. And he said that he really needed me to put

an effort towar

ds it – really wanted me to come up with quite a bit, you know, as

m uc h as I possibly

could so again, he could make these sales number. Q. Did he descr ibe why it w as importa

nt to be doing this at this time?

A. Well, we kind of knew – he reiterated

just that it

was the end of the ye ar and that there were – there wa s a loton the line for Jim Colantino and the exclusive
users. There w ere a lo t of points i nvolved. People could win cert ain 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. Ok ay, I want t o gi ve you a c hance to tell the jury how it ended. What happened to conclud e yo ur phone conversation with Mr. Wolfe on the 30th?

A. We were in the di alogue and Bo b – you know, I
e xpla ined to Bob that I felt very

uncomfortable, based on t he information that I knew about the FMLA and based on what Hartford had told me, I wasn’t supposed

to be doin

g any work, that any work I did c ould const

itute jeopardizing my b enefits that I wou ld get. So I told him that I felt that he was really putting me on the sp ot here b ecause I knew I wasn’t supposed to be w or king; my doctor sa id I wasn’t suppo sed to be work ing. And what he was requestingwas more than what I ha d g ive n Don in it ia ll y. And he was asking me t o do quite a bit more and I didn’t think

that was i

n the best interest of what I was supposed to be doing a t t hat point. I think he said something

like, y ou know, w ell, we’ ll see, an d he slammed the phone down. The conversation was over. According

to Arban, on December 31, Owenscalled him at home again and

stated that “Bob asked me to give you a call and see if you’d rec onsider.” Arban refused. On January 5, Arban received another call at home fr om Wolfe. Arban testified that Wolfe repeated his request that Arban provide Wolfe with “different accounts that I can work so when y

ou come back from

your leave

you’re r eady to roll.” I

n response, Arban “explained that, again, I was certain that would be agains twhat I was supposed to be doing . I appreciate d the effort bu t, you kn ow , t ha t w as no t n ec es sa ry. I wou ld handle it when I got back.”

Sometime between December 31 and January 3, Colantino called Tiffenberg. Tiffenber g testified that Colantino “indica ted at tha t time that Mr. A

rban had applied f or short-Nos. 01-2278/2370 Arban v. West Publishing Corp. 9

termdisability and

wanted to know whether or not we co

uld proceed – or he could proceed with the termination of Mr. Arban’s employ

ment.” Ti ffenbe

rg con sulted wit

h West’s inhouse counsel, who conc luded tha t “there were no issues in p rocee ding with the termination.” When asked at trial whether he thought

there was “any

problem with terminating Mr. Arba n during his leave,” Tiffenberg said no, and explained that “it ha

d no rela tio nship to the reasons for the termination, and the termination we had made that dec isio n prior back in mid-December before Mr. A rban even had applied for leave.” However, Tiffenb erg al so testified that he
was not “aware of any

records or e-mail that doc umen ts an actual decision being ordered by Mr. Colantino.”

Late inthe afternoon on January 6, Arban received another telephone call from Wolfe. At trial, Arban described the conversation: Q. All r ight. G o ahead. Will you describe that phone call?

A. Bob called me again and aske d me to come out and

m eet with him, asked me to pick a spot wher e I thought I could dr

iv e ou t an d m eet hi m. And I, again, reiterated this to Bob, y ou know
, I’m not going to be able to do this. I can’t come to meet with you . He sug gested

coming t o my ho use and meeting with me. I told

him at this p oint, any work th at I did I thought was a violation, and he becam e more and more

insistent a

nd said tha

t it was not

in violation, that I needed to dothi s, this was something I had to do.

*** Q. Okay. How did the phone conversation conclude?

A. He said if I wanted – he asked m e w hy I wa s unwilling to do that so I said I spoke with Hartford. 10 Arban v. West Publishing Corp. Nos. 01-2278/2370

Hartford said Iwas 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 th a t was to take pla ce – whe ther I could do that or not.
Acc ording to Arban , Wolfe ca lled him again later

that d ay. Q. Ok ay, and wh at – go ahea d. What wa s said to you by Mr . Wo lfe

at tha t ti me ?

A. Whole different tone at this point. He was very upset, told me that I – he had called, sp oke to Hartford. They told him, y ou kno w, su

pposedly fr om what he s aid that I

had to do th

is and tha t I , you know, my – if not, th en I was goi ng ag ainst what was called insubordination.

*** Q. Ok ay, well, go ahead. I f you could jus t describ e to the jury what wa s said in that phone conversation?

A. Iasked Bob what was so important and why I had to
come and meet with him on this particul ar day at th is particular – y

ou know, why I

had to co me an d do this . They said, Da

n, what I want y

ou to do i s gather all y our ma t erials. I want y

ou to bring your
com pu ter, your laptop, and I

want you to come out and meet m e. We’ll pick a spot and we’ll meet. I said this seems kind

of unusual. You don’t need to have all this ma

terial to go over hot lists that you’re goingto manag e while

I’m gone. And he said, Dan, Ineed y ou to get all y

our – he w ouldn’t te ll me basical ly 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 materia

ls or the computer that y

ou had at your house ?Nos. 01-2278/2370 Arban v. West Publishing Corp. 11

A. Oh ye ah. He sa

id he wanted m et you [sic] gather my computer, any hot list, any com pany 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 a

head. Can you just describe the end of the convers ation? Did y

ou agr ee to do that?

A. No. I told

him that I was certain t hat being o n medical leave, I was no t sup pos ed t o do th at. It would constitute work. And I as k ed 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 a

nd then I’d be back to work a nd we could address whatever the reasons we re then. Q. Wha t di d he sa y ?

A. He said no. He said, I want y ou to go and meet

with me. . . . An

d he said, well, you

know, Da

n if I have to, I will come to y

our house. We’ll do this at your house. I’m going

to have to terminate you in fron t of your own fa

mily. And I

was concerned about that. I have small kids.

When asked at t rial whether it “would be a violation of the policy

. . . that West had, that you couldn’t ask an e mployee to do work-related services during the ir leave,” Wolfe responded, “If the

leave were grante d, yes.”

At trial, Arban described the final conversat i on that occurred between h imself

and Wolfe on the evening of January 6: Q. Did the subject of resignation come up?

A. No, not at this p oint. What he sa id 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 s aid, no 12 Arban v. West Publishing Corp. Nos. 01-2278/2370

problem. I’ll

come to you. Where wo

uld y ou like to be? And I said I have no idea. He said, well, we’ve met before at the Web er. Wh y don’t we use the Weber. . . . I said Fine. I said, I’ll meet y

ou there and he said, D an, y

ou’ve g ot grea

t reputa tion; you know
, employee file. H e said, I were y ou, I’d be worried about prote cting t hat, b eing ter mi nat ed. If you wan ted to come in and offer to me a letter of resignation, I wou

ld probab ly a

ccept it a t that point

. OnJ anu ary 6, Nicolini forwarded an e-mail from Wolfe regarding Arban to Colantino. In the e-mail, Nicolini stated, “Below ar e the main issues we have regar ding Dan Arban.” Wolfe’s e-mail, which had been created earlier that

sa me da y, began by s tating, “You wa

nted an ou

tl ine of events to consider interminating Dan Arban.” The e- mail went onto describe the allegations agains t Arban, includ in g “misrepresentation

concerning a new

firm being started,” the addition of “products to a signed contract,” double billing of
a customer’s accoun

t, the unso licited se

nding of materia ls to customers, and the “misr

epresentation of when the trial period would start” with respect to another client. At trial, Colantino testified that he had no idea why Nic olini hadsent him this email. Colantino a

lso stated that the d

ecisi on to terminat

e Arban had been mad e be fore he received the e-ma il. On January 8, Arban prepared a

letter of resignation, met Nicolini and Wolfe, an

d handed his letter to Wolfe, w

ho read i t an d accept ed it.

OnJuly 1 4, 1999, A

rban file d this laws

uit aga in st We st . In October and November 2000, the case wastried before a ju ry. West timely moved for

judgment as a matter of law at the closeof all the evidence, which the district court denied after the jury returne d a verdict in favor of plaintiff inthe amount of $119,000. On March 2, 2001, the distri ct cour t entered jud gment in favor of Arban in the amount of $119,00 0 plu s $11,448.88 i n inte rest, $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 districtNos. 01-2278/2370 Arban v. West Publishing Corp. 13

court denied West’s renewed motion for judgment as a matter of law or ne

w trial. On Se ptember

17, 2001, We st filed its notice of appea

l. On Septe

mber 27, 2 001, Arba

n filed his notice of appeal.

II.

This court re

views de novo a di strict court’s denial of a motion for judgment

as a matter of law. Monday v. Oullet te , 11 8 F.3d 1099, 1101 (6th Cir. 1997). This court does no t weigh the evid ence, evaluate the credibility of witnesses, or substitute its judgment for that of the jury

. Inste ad, this court views the evidence in the light most favorable to the party agains twhom the motion is made and gives tha t party the benefit of all reasonable inferences. The motion should be granted, an d the district c ourt’s de cision re versed, only

if
reasona ble minds could not c ome to a conclusion other than
o ne in favor of the movant. Wehr v. Ryan’s Family Ste ak Houses, Inc. , 49 F.3d 1150, 1152 (6th Cir. 1995).

The FMLA

entitles a

n eligib le emp loy ee to as many as twelve weeks of leave during any twelve-month period if the employee has a “se

rious hea lth conditi on that ma

kes th e employee unable to perfor m th e functions of the position of suchemployee.”

29 U.S.C. § 2612( a)(1 )(D). A “serious health condition” is defined as “an illness, injury , impairmen t , or physical or mental c ondition tha t inv olves (A) inpatient
care in a h os pi ta l, ho sp ic e, or re si de nt ia l m ed ic al ca re fa ci li ty;
or (B) co nt in ui ng tr ea tm en t b y a health care provider.” Id. at § 2611(11). An employee ne ed not specifically mention the FMLA when takingleave. A ll the empl oye e must

do is notify the employer that F MLA-qualify ing leave is needed. 2 9 C.F.R. § 825.303(b).

Two distincttheories for recovery on FMLA

claims exis t. The “entitle

ment ” or “interference” the ory arises f rom § 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 th at “any eligible employee who takes leave . . . shall be entitled, on return from suchleave (A) to be restored by the employer to the position of employment held by

the employee w

hen the leave commenced; or (B) t

o be restored to an

equivalent position.” The “retaliation” or “discrimination” theory arises from § 26 15(a)(2), which provides that “[i]t shall be unlawful fo r any employer to dischar

ge or in any

othe r manner discriminate against any

individual for opposing any practice made unlawful by this subcha pter.”

The “entitlement” or “interference” theory is derived from the FMLA’s crea

tion of substantive righ ts. If an employ er interferes with the F MLA- create d right t o medical l eave or

to reinstatement

following

the leav e, a vio l ation has occurred. King v. Preferred Technical Group , 166 F.3d 887, 891 ( 7th Cir. 1999).

The iss ue is simply

whether the emplo ye

r provide d its emplo yeeth e entitlements set forth in the FMLA– for example, a twelve-week leav e or reinstatement after taking a medica

l leave. Becau se the is sue is t he righ t to
anentitlement, the employee is due the benefit if the statutory requirements are satisfi e d, regardless of the intent of the employer. Hodgens v. General Dynamics Corp. , 144 F.3d 151, 159 ( 1st Cir. 1998).

The substantiv e right

to reinsta

tement pr

ovided in § 2614(a)(1), however , “shall [not] be constr ued to ent itle any restored employee to . . . any

right, benefit, or position of employment

other than any

right, benefit or position

to which the employee would ha

ve 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 a lso is not absolute. “[A]n

employee who r

equests FMLA leave

would have no gre ater pr

otection agains t h is or her employment being terminated

for reasons not rel ate d t o hi s or her FMLANos. 01-2278/2370 Arban v. West Publishing Corp. 15

request than he or she did before sub mitting that request.” Gunnell v. Utah Valley

State Coll. , 152 F.3d 1253, 1262 (10th Cir. 1998). An employee lawfully may

be d ismis sed, preventinghim from exercising his statutory

rightsto FMLA l eave or reinstatement, but only if the dismissal would have occurred regardless of the

employee’s r

equest for or taking of FMLA leave. Id.

At trial, Ar ban arg ued that We st denied

him his substantive right to reinstatement and

interfered with his substantive right to take FMLA leave. Fi rst , with respect to Arban’s reinstatement

claim, Arb an “m us t e st ab li sh , b y a preponderanceof the evi dence , that he is entitled to the benefit he claims.” Rice v. S

unrise Express , 209 F.3d

1008, 1018 (7th Cir. 2000). [I] f th e employer c laims that the employee would have been discharged . . . the empl oye e, in orde r to estab lish the entitleme

nt protecte d b y § 2614(a)( 1), must, in the
course of establishing the right, convince the trier of fact that t he contrar

y e vidence submitted by th e employ er is insuf fi cient and that the employee

would not have been discharged . . . if he had not taken FML A leave.

Id. Here, West presented con siderable evidence that the decisionto terminate Arban had been made befor e Arban went on medical leave, but that his actua l termination had been deferr ed until after the holiday s. While an employer has the discreti on to fire

an at-wi ll e mploy ee for poor performance, at trial Arban cast doubt upon bo th the timing of and the reasons for the decision to terminate him. For example, the December 17 e

- mail from Wolfe to Colantino sugge sts that no final de cisi on had been reached. In that email, Wolfe states: “I welcome any and all feedback

frommy fellow Manag ers to se e if I have miss e d any

major ele

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

open minded to an alter

native th at 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 sa tisfied.” 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. I n addition, the jury considered

an e-mail from Wolfe that Nicolini had forwarded to Colantino on January

6, which s t at ed, “You wanted an outline of event s to consider in terminating Dan Arba n.” (emphas is added). While this e-mail is open to several interpre tations, the ju

ry wa s entitled

to conclu

de that We st
was continuing to study the matter and had not

come to a final decisionby January

6. As the Seventh Circuit has observed, “the timing of this decision cou ld 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 withan employee did not decide to fire the employee until she to ok leave , and the s upervisor based the fir ing 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 inference s, sufficient evidence
was present

ed at tria l for the j ury

to conclu

de that We st denied A rban his s ubstantiv e right

to reinsta tement. Next, with rega r d to his interference claim, the jury was entitled to f ind in Arban’s favor if he presented sufficie nt evidence to establish

that he wa s denied h

is substantiv e right s under th e FM LA “for

a re aso n co nne cte d wi th hi s FM LA leave.” Smith v. Diffee Ford-Lincoln-Mercury, Inc. , 298 F.3d 955, 961 (10th C ir. 2002) . “Su ch a reason need not be retaliation.” Id. ; see also Miller v. Def iance Metal Prods., Inc. , 989 F.Supp. 945, 946 (N.D. Ohio 1997) (noting th a t plaintiff’s termination due to absent eei sm ca us ed by a medical condition constituted “an interference u nd er FMLA”). Twenty-nine C.F .R. § 825.220(b) also ex plains that “inte rferin g with ” the ex ercis e of an e mplo yee’s righ t s under the F MLA includes “discouraging an employ ee from using [FMLA] leave.”

West argue s that “it i s undispute d that West promptly granted Arban’s re q uest for leave without any further questions ” and that Arban’s “allegations are
, the refore,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 . Ke nt 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 we re “interfered

with” when a p lant ma nager called him twice during his medical leave a nd r equested that he take a demotion was not cognizable under the FMLA . West’s reliance o n Dodg ens is misplac ed. Unlik e the pla intiff in Dodgens
, who was not asked t o work while on

medical leave butrather to accept a demotion upon returning to work, Arban presented evidence that he was asked to continue to perform work-related

tasks whil e ostensibly on medical leave . Arban testified that afte r notify in g Wolfe of his medical leave on December

28, Wolfe called him on several occas ions and requested that he provide customer l ists and pe nding sa les. Moreover, Arban stated

that during a January 6 conve rsation with Wolfe, he explained that he could not meet with Wolfe because he was on medical leave, to which Wolfe responded t hat “he’s going to call [West’s disability insurance carri er ]
a nd veri fy

or check whethe

r or not” Arban c ould meet

with him. Shortly thereafte

r, Wolfe called Arban and told him that he had spoken

with West’s disability insurance car rier, which had “told him, you

know, supp osedly , from wha t he said that I hadto do this [me et with Wolf e].” Arba n then ask

ed him whether he was beingfired, a

nd Wolfe r

esponde d that he w as. Inlight of this evidence, the jury was entitled to conc lude that Arban was terminated

for reasons related to his FML A leave.

As previous ly me

nti oned , in addition to the substantive g uara ntees provided by the ac t, the FMLA also affor ds employees

protect ion in the e

vent th ey suffer retaliation or discrimination for exercising their rights un der th e FMLA. Sp ec if ic al ly, “[a]n employer is proh ibited from discrimi nating agains temployees . . . who ha ve used FMLA leave,”

nor can they “use the taking o f FML

A leave as a neg ative fa

ctor in
em ployment

actions.” 29 C.F.R. § 825.220(c). Th i s prohibition includes retaliatory discharge for taking lea ve. Skrjanc v. Great Lakes Power Serv. Co. , 2 72 F. 3d 309, 314 (6thCi r. 2001). These protections have been descr ibed a s 18 Arban v. West Publishing Corp. Nos. 01-2278/2370

pros criptive in nature. Hodgens , 144 F.3d at 160. If th e employer is found to ha

ve reta liated against

the employee f

or using FMLA leav e, the e mployer is subject to a claim for compensatory

damages and, unless the court finds the violation occurred in good fa ith, additional liquidated damages. 29 U.S.C. § 2617(a)(1)(A).

Withregard to Arban’s ret aliato ry discharge claim, there was sufficient evidenceto support the jury’s conc lusion 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 w as “ver y sa tisfied” with Arban’ s pe rformance. The “Field Ride Reca p” prepared by Wolfe also stated that Arban “meets expectat io ns in all areas.” West

does not dispute that after the field ride, Arban engaged inprotected activity by

taking leave pursuant to the FMLA, nor does We st dis pute tha t its termination of Arban qualifies as an adverse employ ment action. T he evide nce also supportsthe jury’s find

in g of a causal link between Arba n’s parti ci pation in the protected activity ( FMLA leave) a

nd the adverse employment action (his termination). Alt hough “temporal proximity

is insuffi cient in a

nd of itse lf to esta

blish that the employer’ s nondiscriminatory rea son for discharging
anemployee wa s in fact pretextual,” Skrjanc
, 272 F.3d at 317, the jury weig

hed additional evidence, including evidence of Arban’s perfor

mance a ppraisa ls andthe demeanor of

w itnesses on the sta

nd. Moreover, as previousl y di s cussed
, Arban testified that after notify i ng Wolfe that he had taken medical leave, Wo lfe rep eatedly called A rban at home “to get different a cc ounts 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 wa nted to make sure that every body got as mu

ch as the y c ould.” Ar

ban also explained that whenhe told Wolfe that he “wasn’t supposed to be doing any

work,” Wolfe responded with anger. Arban adde d that Wolfe described Arban’s failure to assist him as “insubordination.” Althoug h West argues that “Arban changed his story so that it appears that Wolfe was upset thatNos. 01-2278/2370 Arban v. West Publishing Corp. 19

he would not work or meet with him duringhis leave ,” as previously explained, the jury is in a better position to judge witness credibi lity

than the a

ppellate court. The record thus contains evidence that supports the jury’s finding that West’s exp lanationfor Arba

n’s termi nation wa s disinge

nuous an d that the real reason was the taking of F MLA leave.

III. A district court’s disposition of a motion for

a new tri al is reviewed for

an abuse of discretion. Workman v. Frito-Lay, Inc ., 165 F.3d 460, 467 n. 7 (6th Cir. 1999). Thi s co urt has defined an abuse of discretion a s a “de finite and firm convictionthat

th e 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

instructi ons a

nd the v erdict form.” Sp ec if ic al ly, West argues that

“ the jury was not given any guidan ce whatsoever regarding wha t constitutes ‘interference ’
un der t he FML A.” West c ontends that the jur y imp roperly could have fou nd it guilty of “inte rfere nce” wh ile at the sa

me time “rejecting Plai

ntiff’s a rgumen ts that h e 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 applica ble law to the jury. Jones v. Feder ated Fin . Reserve Corp

. , 144 F.3d 961, 966 (6th Cir. 1998). A party is not entitled to a new trial based upon alleged defic ien c ies in the jury instructi ons unless

the instru ctions, taken as a whole, are mi sleading or give an inadequate understanding of the law

. Id. Here, the distric t court’s instructi ons to the j ury

state, in releva nt part:
Under the Fami ly a

nd Medica

l L e ave Act it is unlawful for any emplo yer to interfe

re with, restrain or deny

the exercise of or the attempt to exercise any r ight 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 M edi cal L eave Act for an e mploy er to disch arge or in any other ma nner discri minat e aga

inst any other indi vidual for opposing any practice made lawful by the Fami ly a

nd Medica

l Lea ve Act.

***

Inorder for Plaintiff

to prove that West discriminated or retaliated against him because he took leave, Plai nt iff must estab lish the following evidence b y a preponderance of the evidence

. (1) he eng aged in

an activity p

rotecte d by

the Act; (2) that this exerc ise of

his protected rights was known to the def endant; (3) that defendant thereafter took an employment

action adverse to the plaintiff; and (4) t h at there was a causal connection betwe en the protected activity and the adve

rse employment action.

To show such a

causal connection [between the protected activity and the a

dverse e mploy ment acti on] , Plaintiff must show that the reasons given for his termination
were not the true reasons, and that the tr ue reas on for his termination was that he took a medical leave.

Inthis case , West clai

ms that Plaintiff was not terminated because of his leave, but

because of misconduct. In order to prevail on his ret

aliation c laim, Plain

tiff must a

lso prove, by a preponde

rance of the evidence, that West’s stated reason f or discha rging Plaintiff is no t the true reason, but mere ly

a pre text for retaliation, which means that th e 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 pre ponderance of the evidence that he would not have been discharg ed had he not taken Family

and Medical Leave

Act leave. Uponexamination of the ju ry instructi ons, Wes t’s argume nts lack merit. Th e trial in

this matter was bifurcated, and following the liability

phase the

jury answer ed “y es” to the following question: “ Did defendant West Publishing Corporationviolate p laintiff Daniel A rban’s r ights under

the Family and Medical Leave Act?” This cour t must pres

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

v. Angelone , 528 U.S. 225, 234 (2000). As previous ly discussed, Arban presented evidence sufficient for the jury to find in his favor under

an interference theory

premised upon the denial of his s ubstantive rights under the FML A “for a
reason connec ted 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 damag es unless it found that West discharged A rban for takin g medic al leave

– a findin

g that a ls o woul d support Arban’s interference cla im. Since the ins tructions
, taken as a whol e, indica

te that t he ju ry was required to find that t he “tru e reason for [Arban’s] termination was that he took a medical leave,” no error has be en demonstrated.

IV.
Under the FMLA, a preva

iling plaintiff

is entitled to receive damag es in the amo

unt of “a ny wages, salary

, employ me n t benefit s, or ot her compensation denied or lost to such employee”

as a result of the adverse employ ment action. 29 U.S.C. § 2617(a)(1)(A)(i )(I). The FMLA also provides that “the e mploy

er . . . sha ll be liabl e . . . for

equitabl e reli ef a s may be appro priate. ” 29 U.S.C. § 2617(a )(1)(B ). In

this case, the distri ct court

declin e d to submit the issue of front pay to the jury, concluding

that the FMLA “does not provide for a remed y of front pa y” and addin

g that “ there is i n this
caseinsufficient evidence for the question of fro nt p ay.” 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 c laim, t his court prev iously has held that “ [t]he appropriateness of rei nstatement and front pay, as eq uitable reme dies, ar e within the dis cret ion of the d istrict cou rt.” Taylor v. Invacar e Corp. , 64 Fed. Appx. 516, 523, 2003 WL 21212674, at *6 (6th Cir. May 21 , 2003). the FMLA canno t allo w a recovery of front pay, a

nd by not properl y conside ring an award of front pay to Mr. Arban, at least as an alternative to reinstatement.”

The issue of whether front pay is ava il abl e un der th e FM LA is a question of law that thi s court r eviews de novo

. See Gottfried v. Med. Planning

Serv. , 280 F.3d 684, 690 (6th Cir. 2002). Al

though th is circui t has not di

rectly consider ed this question, 1 ot her circ uits have found that front pay is an equitabl e remedy

available under the FML A, as have at l east two district courts in thi s circ uit. See , e.g. , Diffee FordLincoln-M

erc ury, I nc. , 298 F.3d

at 965; see also Nichols v. Ashland Hosp. Corp. , 251 F.3d 496, 503-504 ( 4th Cir. 2001); Churchill v. Star En ters. ,183 F.3d 18 4, 193 (3d Cir. 1999); Rogers v. AC Humko Corp. , 56 F.Supp.2 d 972, 978 (W.D. Tenn. 1999); Bryant v. Delbar Products, Inc. , 1 8 F .Supp.2d 799, 810 (M.D. Tenn. 199 8). Neither the di strict c ourt nor West cites any ca ses to the contrary . Instead, West argue s that “the pla in langu age of the statut

e does no t contemp late any future damages as an ava ilable remedy

under the FMLA, because the lang uage c learly

identifie s damag es in the p ast tense.” Howeve

r, West focuses solely upon the la nguage of 29 U.S.C. § 2617(a)(1)(A)(i)(I ) and ignores the languag e of 29 U.S.C. § 26 17(a)( 1)(B), which pr ovides for equita

ble remedie s. Although West add s th at the legislative history does not contain “any discussion of, or even reference to, the availab ility

of front pay or future damages under the F MLA,” West has not identified any explicit prohibition against front pa y. In light

of theseauthorities and the FMLA’s provision for equitab le rem edies, we find that the FMLA provides for fr on t p ay.Nos. 01-2278/2370 Arban v. West Publishing Corp. 23

While the determinationof the precise “amount of an award of front pa

y is a jury question, ” the initi al “dete rminati on o f the propriety of a

n award o f fro nt 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 c ourt reviews the district court’s conclusions regarding the propr i ety of an award of front pay for a n abuse of discretion. See Simpson v. Ernst & Young , 100 F.3d

436, 444 (6th Cir. 1996) (ERISA claim) (“A decision t o submit the

issue of f

ront pay to the jury

is
co mmitted to the soun

d discre tion of the

trial cou rt and is reviewed on appeal for abuse of disc retion.”).

Alth ough “[r]einsta

tement is t

he presu mpti v ely favor

ed equitabl e remedy,” it is not appropriate “where the plaintiff has found other work.” Roush , 10 F.3d at 398. In this case, Arban testifie d that he a

ccepte d an offe

r to serv e as a fi eld sales repres entative

for Matthew Bender, a le gal pu blishing
co mp an y, in July or Aug ust of 1999. The fact that reinstatement

i s in appropriate, however, does not mean that
anaward o f front p ay

is required. “No per se rule g overns the appropr iatenes s of

front pay damages in a particular case

. . . . Ul ti ma te ly, the question to be answer ed is whether front pay damages are needed

in a particular case to make the plaintiff whol e.” Wilso n v. Int’

l Bro. of Tea msters , 83 F.3d 747 , 756-57 (6th Cir. 1996). Severa l factors must be considered when determining the propriety of an a wa rd of

fr on t p ay, including “an employe e’s duty to mitigate, the availability of employment

op p ortunities, the period within which one by
reasona ble efforts

may be re-employ

ed, the employee ’s work and life expectancy, the

discou nt tabl es to determine the pr ese ntvalue of future damages and othe r factors that are pertinent on prospective damage awar ds.” Roush , 10 F.3d at 399 (quoting Shore v. Federal E xpress Corp. , 777 F.2d 1155, 1160 (6th Cir. 1985)).

Inthis case, the district court refused to submit the issue of front pay to the jury, st ating: 24 Arban v. West Publishing Corp. Nos. 01-2278/2370

Number two is the Court believes that there is in this ca se insufficient

evidence for the question of front pa y e ven if it were allowed

to go to the jury f

or the following
reasons : Number one, is there has been really – the proofs here a

re tha t in terms o f loss wag es, loss op po rt un it y, and so forth, that there’s just not eno ug h evidence to go – e sp ec ia ll y o n what he has made, and I understand

that part of it had to do with the law sch ool and so f orth, but still based upon his mitigation of dama ge s which he

has none , there i s no reas on that a

r eas onable

jury could believe tha

t there’s going to be front pay, number

one.
A review of the evidence presente d at trial indicates that

the districtcourt’s decision was not an abuse of discretion. Arban testified that after accepting e mployment with Matthew Bender in July or Au gust

of 1999, his compensation was $45,000

. Arb an 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 fi rst el even months of 2000, Arb an had earned $185,000, $100,000 of which was attributa ble to the opening of a new law school in his area. A rban’s earnings as an employ ee of West in 199 8, b y contras t, were $169,412. Consequently, Arban ha s shown no damages warranting a

n award of front pay

. Arban argue s that “[a] c ompariso n of the e arned w ages in 1998 to the earned wages in 2000 cl early is not proper or relevant in the determination of Mr. Arban’s front pay” a nd that “a le gitimate

comparison for calculating front pay is the amount Mr. Arban would have earned and the a mount Mr. Arban was earning.” Arban, howe ve r, did not provide evidence by

which the

jury could mak

e what he claims would be a more accurate estimate of his ear nings. “A plaintiff who seeks a n aw ard of front pay must provide the district court with the essential data necessary to calculate a reaso nably certain front pay a

ward.” Bruso v. United Airlines, Inc. , 239 F.3d 848, 862 ( 7th Cir. 200 1); 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 “pure ly speculative”). At trial, Wi lliam King , Arban’ s economi c expert, te stified a s follows: Q. Did you come up w it h a number for front pay , taking the October 30 date and g oing forward?

A. Ce rt ai nl y. Q. And what n

umber did

you come up with for tha

t?

A. One Million, Eight Hun dred and Eighty-Seven Thousand , Three

Hundred Eighty -Four D ollars. Q. Now–

THE COURT: Hangon. Front pay is what M r. Ar b antold you? You didn’t do any research oranything e lse? It’s what he s aid

that he thinks he could make or not make?

THE WI TNESS: Well, it’s based on thatand the Social Security Wage

Index.

THE COURT: But

it’s all based on what he hold you?

THE WITNE SS: Yes. The two yea rs at the twenty percen t, and then th e Social Secu rity Wage In dex.

THE COURT: But a ll yo u did was t ake th e

Social Security

formula a nd add it to what he told you–

THE WI TNESS: Correct

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

THE COURT:

–

he thinks he co uld have ma de somewhere else?

THE WITNE SS: Well, he had said he was going to go up thirty perce

nt a y ear, and I would do so–

THE COURT: But it’s a ll based on

what he to ld you?

THE WI TNESS: Yes.

Arban’s evidence regarding front pay was pur

ely speculative. Onthe evidence before it, the district court thus did not abuse its discreti on in decl ining tosubmit the issue of front pay to th e j ur y.
V.

A rban contends that the district court erred in fai ling t o award liquidated damages u nde r th e FM LA. T he F MLA provides that a

court shall award

liquidate d damag es equal to the damage s due to lo st compe nsation plus interest. 29 U.S.C. § 2617(a)(iii). However, if an employ er proves that it acted “in good faith and that the empl oy er had r easonab le grounds for belie

ving tha t the act oromission wa s not a violation” o f the FMLA , the cour t may reduce the dama ges. Id.

The FMLA does not explicitly define the term “good faith.” However, this court previously has turn ed to the Fair Labor Standards Act (FLSA), which c ontains similar rem e dial provision s, for gui dance in interpreting the FML

A. Both the FMLA and the FLSA provide that an e mpl oyer “sh all” be liablefor damages and liquidated damag es and that th e districtco ur t “ ma y” reduce the amount of liquidated damages if good faith is establ ished. See 29 U.S.C. § 216(b) (providing damage s under F LSA) ; id. at § 260 (providing good faith defense to liquidated damages under F LSA); id. atNos. 01-2278/2370 Arban v. West Publishing Corp. 27

§ 2617(a) (FMLA) . “ [T]he le gis lat iv e hi st ory o f th e FM LA reveal s that Congress intended the remedial provisions of the FM LA to mirror those in the FLSA.” Frizzell , 154 F .3d a t 644 (citing

S. Rep. No. 103-3, at 35 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 37 (“[The FML A’s] enforc ement scheme is modeled on the enforcement scheme of the F LSA. . . . The relief pro vi ded in FMLA also parallels the provisions of the FLSA.”)).

Under the FL SA, a distr

ict cour t may not exerc is e i ts discretionary

authority to reduce

o r eliminate a liquidated damages award un less the employer f irst sustains its burden of proving that it s “failure to obey the statut

e was both in good faith and predicated upon such reasonable groundsthat it would be u

nfair to i

mpose upon it

more than a compensatory

verdict.” Elwell v. U

niv. Hosp s. Home Ca re Servs. , 276 F.3d 832, 840 (6th Cir. 2002) (quotation omitted) (FL SA context). This cour t thus must c onsider w

hether We st sustaine d its b urden. “Although in the final analy sis, we revie w a district court’s decision on liquidated damages for abuseof discretion, that discretion mus t be e xercised consiste ntly with the strong presumpt ion under the statut e in favor of dou blin g. ” Elwe ll , 276 F.3d at 840 (quotation omitted).

The district court found that West acted in good fait h bec ause “they made

their decision even before the medical leave was – the Family Me dical Leave Act requ est was even putin. They wanted to de lay it because of the holidays.” However, as previ ously

noted, the district court’s instructions to the jury specifica

lly state:

To show such a causal connection [between the protected activity and the a dve rse employment ac tion], Plaintiff must show that the reasons given for his termination
were not the true reasons , and that the true reason f or his termination was that he took a medical leave. 28 Arban v. West Publishing Corp. Nos. 01-2278/2370

Inthis case, West claims that Plaintiff was not terminated because of his leave, but because of misconduct. In order to prevail on his ret

aliation c laim, Plain

tiff must a

lso pr ove, by a pre ponde ranc e of t he eviden ce, t

hat We st’ s stated re ason for discharging Plaintiff is not the true reason, but mere ly

a pretext for retaliation, which means that the true reasons for his termi nation were not the
reasons stated by West, but that Plaintiff took a medical leave.

As previ ou sly noted, this court presumes that the jury followed the district court’s instructions. Weeks , 528 U.S. at 234. In f in di ng in fa vo r o f A rb an , t he ju ry thus necessa rily found that West made its decision because Ar ban “took a medical leave,” not because of Arban’ s misconduct. “[W]hen legal and equit

able issues to be de cided in t he same c ase depend on commondeterminations of fact, such questions of fact are submitted to the jury, and the cour t in resolving the equi table issues is then bound by the jury ’s finding s o n them.” Diffee Ford-Lincoln-Mercury, Inc. , 298 F.3d at 965. Inthis case, the district court disregarded the jury’s fi ndin g – that West’s decision to fire Arban was a re sult of hismedical leave and not his misconduct – in considering the liquidated dam ages issue. I

nstead, t he distric t court ma

de its ow n contrary finding, which served as the basis for its denial of liquidated damag e s. This was error. The district court thus abused its discre

tion when

it deniedArban 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-tria l motions an

d, 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. Ci

v. P. 62(d) . This court re

views a districtcourt’s denial of a supersedeas bond fo r an abu se ofNos. 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).

R ule 6 2(d) entitles a party who files a satisfactory supersedeas bond to a stay of money judg

ment as a matter of right. Federal Prescription Serv., Inc. v. Am. Pharm. Ass’n
, 636 F.2d 755, 759 (D.C. Cir. 1980) (citi ng Am. Mfr. Mut. I ns. Co. v. Am . Broa d. Paramount Theatres, Inc ., 385 U.S. 931 (1966)). However, “the Rule in no way nec ess arily implies that fi li ng a b on d i s t he on ly w ay t o obt ain a stay. I t speaks only to stays gra

nted as a matter

of righ t, it does not speak t

o stays gr anted by the c ourt

in accordance with its discretion.” Id. Arban c laims that

W est must make “at least a showing that it has ade quate re sources to satisfy the bond. ” West

has done so here. A

t the heari

ng on We st’ s motion for stay withoutbond

on April 25 , 2001, co

unsel for West stated that “the revenues of t he gro up of whic

h West is a pa

rt is approxima

tely 2.5 billi on. ” The Seventh Circuit has noted that “an inflexible requ irement of a bond would be inapp ropriate . . . where the defendant’s ability to pay the judgment is so plain t

hat the c ost

of the b ond would be a wasteof money.”

Olympia E

qui p. Leasing

Co. v. W estern Union Tel. Co. , 786 F.2d 794, 796 (7th Cir. 1986). In light of the vast disparity betwee

n the amount of the judgment inthis case and the annual revenue of the group of which

West is a part, the distri ct court ’s decis ion to gr ant a sta y without a bond was not an abuse of discretion.

VII.

For all of the foreg oing reasons, we affirm the district court’s d enial of West’s motion for judgment as a matter of law or for a new trial, reverse and r emand th e trial court’s denial of an aw ard of liq

uidated d amage s, affirm the district court’s denial of Arban’s claim for front pa y, and affirm the district court’s grant of a stay without bond.