In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 07-2009, 07-3358

RICHARD FRANZEN,

Plaintiff-Appellant,

v.

ELLIS CORPORATION,

Defendant-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 641—Martin C. Ashman, Magistrate Judge.

____________

ARGUED FEBRUARY 21, 2008—DECIDED SEPTEMBER 10, 2008

____________

Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. On January 29, 2003, Richard

Franzen filed a complaint against Ellis Corporation

(“Ellis”), his former employer. He alleged, inter alia, that

Ellis had interfered unlawfully with his right to take

medical leave under the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2615(a)(1), and had discriminated

against him for taking leave, in violation of 29 U.S.C.

§ 2615(a)(2). Upon motion of Ellis, the trial was bifurcated
2 Nos. 07-2009, 07-3358

into liability and damages phases. A jury heard evidence

on the issue of liability and rendered a verdict in favor

of Mr. Franzen. The district court then held a bench trial on

the issue of damages. It found that Mr. Franzen was not

entitled to any damages; therefore, it also refused to grant

Mr. Franzen’s request for attorneys’ fees. For the reasons

set forth in this opinion, we affirm the judgment of the

district court.

I

BACKGROUND

A.

Ellis Corporation employed Mr. Franzen as a mechanical

engineer from 1999 until mid-2002. At the end of April

2002, Mr. Franzen was seriously injured in an automobile

accident. On May 2, 2002, he called Jennifer Ruffolo, Ellis’

Human Resources Manager, and informed her that he

had been injured and was unsure when he would be able

to return to work. During this conversation, Ms. Ruffolo

requested that he provide her with a doctor’s note in

order to establish his eligibility to receive FMLA leave

and short-term disability benefits.

On May 11, 2002, Mr. Franzen received in the mail a

packet that contained a number of forms, including a

medical certification form. Ellis employees were required

to complete this paperwork in order to receive shortterm disability and FMLA benefits. The forms stated that

Mr. Franzen had fifteen days from the date of receipt to

return the paperwork or his absences would be con-
Nos. 07-2009, 07-3358 3

This date is fifteen days from the date of receipt, plus two 1

additional days because May 26 was a Sunday and May 27

was a holiday.

sidered unexcused and he would not be entitled to these

benefits. His paperwork, including his medical certification

form, therefore was due to the company no later than

May 28, 2002.1

After Mr. Franzen’s conversation with Ms. Ruffolo, Ellis

began paying Mr. Franzen short-term disability benefits

in anticipation of receiving proper medical documentation.

Nevertheless, Ellis claimed that, despite numerous calls

informing him of the necessity of the documentation and

the consequences of not sending it in a timely fashion, it

did not receive the proper medical certification from

Mr. Franzen by May 28, 2002. Accordingly, on May 28,

2002, Ellis denied Mr. Franzen’s request for FMLA leave.

Because Mr. Franzen’s request for FMLA leave had been

denied, his absences from April 23 through May 28 were

considered unexcused. Ellis therefore terminated

Mr. Franzen’s employment on May 28, 2002, under the

terms of its Attendance and Punctuality policy. That day,

Ellis sent Mr. Franzen a letter notifying him that both

his short-term disability benefits and his employment

had been terminated because of his unexcused absences.

B.

Complaining of severe back pain, Mr. Franzen made

numerous visits to physicians in the weeks after his
4 Nos. 07-2009, 07-3358

accident. When conservative treatment failed, he visited

Dr. Avi Bernstein, an orthopedic surgeon. On June 13, 2002,

Dr. Bernstein issued Mr. Franzen a doctor’s note stating

that he was temporarily disabled and unable to work

until further notice.

In July 2002, Dr. Bernstein performed surgery to repair

Mr. Franzen’s spine. Although the surgery was successful

from a medical standpoint, Mr. Franzen still complained

of severe pain in the months that followed. On December 9, 2002, in connection with Mr. Franzen’s application

for Social Security benefits, Dr. Bernstein offered his

medical opinion that Mr. Franzen was permanently and

totally disabled and that he therefore could not return to

any of his prior work activity or any other work. At no

time since his discharge from Ellis did Mr. Franzen seek

alternate employment.

C.

In January 2003, Mr. Franzen filed a complaint in the

United States District Court for the Northern District of

Illinois, alleging that Ellis had interfered unlawfully with

the exercise of his FMLA rights under 29 U.S.C.

§ 2615(a)(1). He also alleged that Ellis had discriminated

against him in violation of 29 U.S.C. § 2615(a)(2), breached

his employment contract by failing to provide shortterm disability benefits, and violated a state law that

prohibits retaliatory discharge.

Ellis moved for summary judgment on all claims. The

district court dismissed both the contract claim and the
Nos. 07-2009, 07-3358 5

As a sanction for his failure to comply with a number of the 2

court’s prior discovery orders, Mr. Franzen was barred from

testifying himself at trial.

retaliatory discharge claim on summary judgment, and

Mr. Franzen did not challenge this decision. The district

court denied Ellis’ summary judgment motion on the

FMLA claims. It held that a question of fact existed as to

whether Mr. Franzen had supplied Ellis with the

requisite documentation necessary for his receipt of

FMLA leave.

Ellis then moved to bifurcate the trial on the FMLA

claims into separate liability and damages phases. Before

the district court could rule on this motion, however,

both parties consented to the exercise of jurisdiction by a

United States magistrate judge. Upon reassignment to

that judicial officer, the motion to bifurcate was granted.

In April 2006, a jury trial was held on the issue of liability. The sole issue of fact litigated before the jury was

whether Ellis had received the requisite medical documentation from Mr. Franzen prior to May 28, 2002. If it

had not received the requisite documentation, Mr. Franzen

was not entitled to FMLA protection. If it had, however,

then its termination of Mr. Franzen’s employment was

in violation of the FMLA.

In support of his contention that Ellis in fact had received his physician’s note prior to the deadline, Mr.

Franzen presented the testimony of Tamara Herman, a

secretary at his doctor’s office. Ms. Herman testified 2

that, at least three times prior to May 28, she had faxed
6 Nos. 07-2009, 07-3358

Outside the presence of the jury, in an attempt to procure 3

the admission of the doctor’s note itself into evidence, Mr.

Franzen proffered the testimony of Dr. Konowitz regarding

the authenticity of the note. During this examination, Dr.

Konowitz stated that, based upon the information available to

him at the time, he believed that Mr. Franzen could have

returned to work full time as of May 31, 2002. Tr. Vol. 14 at 64.

This testimony was not refuted by the company at this time,

however, because it went to the question of damages rather

than liability.

to Ellis’ Human Resources Department a note from

Mr. Franzen’s physician, Dr. Konowitz, stating that he

was temporarily unable to return to work. In its defense, 3

Ellis introduced testimony from Ms. Ruffolo, its Human

Resources Manager. Ms. Ruffolo testified that she had

not received the necessary documentation from Mr.

Franzen before May 28, 2002, despite numerous phone

calls informing him that she needed to receive it by

that date. Specifically, she denied having received any

fax from Dr. Konowitz’s office prior to May 28.

At the conclusion of the trial, the jury was given the

following interrogatory:

Did Plaintiff prove by a preponderance of the evidence that Defendant received the requested medical

documentation by May 28, 2002? If you answer yes,

then you are finding in favor of the Plaintiff. If your

answer is no, then you are finding in favor of the

defendant.

Tr. at 72. After deliberation, the jury answered “yes,”

finding in favor of the plaintiff. Id. On April 20, 2006, the
Nos. 07-2009, 07-3358 7

Mr. Franzen filed a number of “emergency motions” request- 4

ing that he not be required to submit to depositions because

he was too ill to attend. Ellis filed a motion for discovery

sanctions. The district court ultimately barred Mr. Franzen

from testifying at trial as a sanction for his failure to comply

with discovery.

court entered the following docket entry: “Jury returns

its verdict in favor of plaintiff Richard Franzen and

against Ellis Corporation as to liability only.” R.188.

The district court then held a bench trial to determine

the appropriate amount of damages. Mr. Franzen sought

nearly $1 million in back pay and front pay, contending

that he would have been able to work and earn wages

from May 28, 2002 (the date of his discharge) through

the time of his planned retirement at age 65.

In response, Ellis presented evidence that Mr. Franzen

was either unwilling or unable to return to work at any

time after his accident. It pointed to Mr. Franzen’s prior

deposition statements in which he admitted that he was

totally incapacitated and unable to work at all times

after his accident. Ellis also presented testimony from

Dr. Bernstein, the surgeon who had performed spinal

surgery on Mr. Franzen in July 2002. He stated that Mr.

Franzen was permanently disabled and unable to return

to work as of at least June 2002. Ellis noted that Mr.

Franzen had refused to appear for depositions during

discovery because he had claimed to have been too ill

to attend. Finally, Ellis contended that, if the court found 4

Mr. Franzen’s argument that he was able to return to
8 Nos. 07-2009, 07-3358

work immediately after his discharge to be credible, then

he was barred from recovery because he had failed to

mitigate his damages by seeking alternate employment.

On April 3, 2007, the district court concluded that Mr.

Franzen had not proven that he was entitled to any damages. It stated in open court that “it is extremely clear

that the plaintiff was unable to work from the time of his

accident,” R.279 at 28, and that, even if Mr. Franzen had

been physically able to work, “there is no evidence that

he mitigated his damages . . . he never tried to work,”

R.279 at 30. The court therefore entered the following

minute order:

The court finds that there are no damages that have

been proven to this court, and therefore, the amount of

damages is zero. There being no damages this case is

dismissed with prejudice. . . . There are no attorneys’

fees available where the defendant has prevailed for

the reasons stated in open court. Civil case terminated.

R.253.

Mr. Franzen then filed a motion to alter or amend the

judgment. He first contended that he was entitled to an

award of attorneys’ fees under 29 U.S.C. § 2617(a)(3)

because, even if he had failed to prove damages, the

jury had found that Ellis violated the FMLA. He also

submitted that Ellis should have been estopped at the

damages trial from introducing evidence of Mr. Franzen’s

inability to return to work because the issue already

had been decided implicitly by the jury. Finally, Mr.

Franzen argued that the district court improperly denied

him his right to a jury trial on the issue of back pay.
Nos. 07-2009, 07-3358 9

The district court concluded that the jury verdict was not

a “judgment” on the issue of liability. Therefore, the jury

verdict was insufficient to satisfy the “judgment” requirement of the FMLA’s fee-shifting provision. It also decided

that estoppel was inappropriate here because the jury

had not been asked to determine whether Mr. Franzen

could have returned to work at the end of his twelveweek leave period. Finally, he concluded that back pay

was an equitable remedy, and therefore a jury trial on

the issue of damages was not required. Accordingly, the

court denied the motion to alter or amend the judgment.

Mr. Franzen timely appealed.

II.

DISCUSSION

A.

Mr. Franzen first submits that the district court improperly denied him a jury trial on the question of damages,

in violation of his rights under both the FMLA and the

Seventh Amendment. The district court concluded that

a jury trial was not required in this case because the only

forms of relief that Mr. Franzen sought—“back pay” and

“front pay”—were both equitable in nature. In making

this determination, it relied upon language from a number of our cases in which we remarked that back pay, like

front pay, is an “equitable remedy.” See, e.g., Doe v.

Oberweis Dairy, 456 F.3d 704, 714 (7th Cir. 2006) (holding

that the common law doctrine of comparative fault is not

a defense to Title VII because back pay is equitable in
10 Nos. 07-2009, 07-3358

At least three district courts have agreed with the Sixth 5

Circuit’s interpretation of the FMLA. See Bryant v. Delbar Prods.,

18 F. Supp. 2d 799 (M.D. Tenn. 1998); Helmly v. Stone Container

Corp., 957 F. Supp. 1274, 1275 (S.D. Ga. 1997); Sounders v. Fleming

Co., 960 F. Supp. 218, 219 (D. Neb. 1997). Ellis cites only one

case—an unreported, one paragraph case out of the Eastern

District of Tennessee—that concluded otherwise. See Hicks v.

Maytag Corp., 1995 WL 908171 (E.D. Tenn. July 13, 1995). The

Tenth Circuit, in Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298

F.3d 955, 965 (10th Cir. 2002), also noted with approval a

district court’s decision to hold a jury trial on issues of back pay,

which it described as “legal” relief, and a bench trial on issues

of front pay, which it saw as “equitable” relief.

nature); David v. Caterpillar, Inc., 324 F.3d 851, 865-66 (7th

Cir. 2003) (stating that “the district court has broad equitable discretion to fashion back pay awards to make the

Title VII victim whole” (citation omitted)); Pals v. Schepel

Buick & GMAC Truck, Inc., 220 F.3d 495, 500-01 (7th

Cir. 2000) (asserting that back pay, like front pay, is an

equitable remedy).

As Mr. Franzen notes, however, each of the cases

relied upon by the district court involved back pay under

Title VII, not the FMLA, and none directly addressed the

right to a jury trial under either statute. Furthermore, he

submits, the only circuit to have addressed the issue

squarely concluded otherwise and held that a plaintiff

who requests back pay as a remedy does have a right to

a jury trial under the FMLA. See Frizzell v. S.W. Motor

Freight, 154 F.3d 641, 643-44 (6th Cir. 1998). In Frizzell, the 5

Sixth Circuit considered the structure and the legislative
Nos. 07-2009, 07-3358 11

history of the FMLA, particularly its close ties to the

Fair Labor Standards Act (“FLSA”). Because courts have

“uniformly interpreted” the remedial provisions of the

FLSA to provide a right to a jury trial, see Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 347 (1998), and

both the structure and the legislative history of the

FMLA suggest that Congress intended the remedial

provisions of the FMLA to mirror those of the FLSA, the

court inferred that Congress had intended to provide a

right to a jury trial under the FMLA as well. Frizzell, 154

F.3d at 644. It also remarked that reliance on Title VII and

ERISA case law for the proposition that back pay is an

“equitable” remedy is inappropriate “[b]ecause the

FMLA’s link to the remedial provisions of the FLSA is

stronger than it is to Title VII or ERISA.” Id. Mr. Franzen

submits that we should adopt the Sixth Circuit’s

holding that the FMLA provides a right to a jury trial for

plaintiffs claiming back pay as a remedy for violations

of the statute.

Whether a plaintiff seeking back pay under the FMLA

is entitled to a jury trial appears to be an issue of first

impression in this circuit. It is also, however, an issue that

we need not decide at this time. As we shall explain below,

the evidence in this case established, as a matter of law,

that Mr. Franzen was not entitled to damages because

(1) he was unable to return to work at the end of the 12-

week FMLA period, and (2) he failed to mitigate his

damages. On the evidence in this record, no reasonable

jury could have found otherwise. Therefore, if the district court had held a jury trial on the issue of damages, it

would have been required to direct a verdict in favor of
12 Nos. 07-2009, 07-3358

Mr. Franzen did not request nominal damages either before 6

the district court or on appeal; accordingly, we need not

determine whether nominal damages otherwise are available

under the FMLA. Cf. Walker v. United Parcel Service, Inc., 240

F.3d 1268, 1277-78 (10th Cir. 2001) (holding that nominal

damages are not available to plaintiffs under the FMLA).

Ellis. See Fed. R. Civ. P. 50(a). Consequently, we need not

decide today whether Mr. Franzen otherwise would

have had a right to a jury trial when requesting back pay

under the FMLA.

B.

Mr. Franzen contends that, because the jury determined

that Ellis had received the doctor’s note prior to the

deadline and therefore discharged him in violation of the

FMLA, he was entitled to damages. Specifically, he requested damages in an amount equivalent to his lost

wages from the date of his discharge to the date of trial

(“back pay”), his potential earnings from the date of trial

to his planned retirement date of 2011 (“front pay”) and

liquidated damages and attorneys’ fees as provided

under the statute. See 29 U.S.C. § 2617. 6

An employee may be entitled to both back pay and front

pay as a remedy for losses flowing from an employer’s

interference with his substantive rights under the

FMLA; however, section 2617 provides no relief unless the

plaintiff can prove that he was prejudiced by the violation.

See Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81, 89

(2002). We have held that a plaintiff may not collect
Nos. 07-2009, 07-3358 13

damages for periods of time in which he otherwise

would have been unable to work for the company. Flowers

v. Komatsu Mining Sys., Inc., 165 F.3d 554, 557-58 (7th Cir.

1999). An employee also has no right to reinstatement—and, therefore, damages—if, at the end of his

twelve-week period of leave, he is either unable or unwilling to perform the essential functions of his job. See 29

C.F.R. § 825.214(b); Colburn v. Park Hanifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir. 2005). Accordingly, if

Mr. Franzen was either unwilling or unable to return

to work at the expiration of his FMLA leave, Ellis lawfully

could have terminated his employment, and he would

not be entitled to damages resulting from this termination.

At the bench trial on damages, Ellis introduced the

following excerpt from Mr. Franzen’s pre-trial deposition,

in which he admitted that he was unable to return to

work after his accident:

Q. Mr. Franzen, have you been employed since you

were terminated from Ellis Corporation?

A. No, I have not.

Q. Is there a reason why you have not been employed?

A. Yes.

Q. And what is that reason?

A. I am unable to return to work.

Q. Are you unable to work anywhere?

A. That is correct.

Q. Have you been unable to work since your termination from Ellis Corporation?
14 Nos. 07-2009, 07-3358

A. Since before.

. . . .

Q. At what point did you become unable to work?

. . . .

A. On the date of my auto accident, April 30th.

Q. And when you say you’re unable to work, I believe

you said in any position. Does that mean you could

not have worked in any job in the universe since

your auto accident?

A. That’s correct.

Q. Including your job at Ellis Corporation?

A. That is correct.

Q. And can I assume that you haven’t looked for work

since your termination?

A. Correct.

Q. And I’m assuming you haven’t looked for work

because you are unable to work?

A. Correct.

Q. Did your doctor tell you you were unable to work,

or is that your own conclusion?

A. No. My doctor told me.

Q. Which doctor told you that?

A. Dr. Bernstein.

R.216, Ex. 1 at 484-86.
Nos. 07-2009, 07-3358 15

In addition to these admissions, Ellis presented testimony from Dr. Bernstein, Mr. Franzen’s spinal surgeon,

who confirmed his previous opinion that Mr. Franzen

had been disabled and unable to work as of at least

June 2002. Ellis also introduced letters written by

Dr. Bernstein in connection with Mr. Franzen’s application for social security benefits, in which he offered his

medical opinion that Mr. Franzen was permanently and

totally disabled. Additionally, Ellis pointed to Mr.

Franzen’s refusal on numerous occasions to appear for

depositions in these proceedings—asserting that he

was too disabled to participate—as proof that he was

unable and/or unwilling to return to Ellis at the end of

his FMLA leave period.

As the district court noted, Mr. Franzen presented no

credible evidence to rebut Ellis’ submission that he was

unable and/or unwilling to return to work after his accident. In support of his claim, Mr. Franzen offered only

the testimony of two physicians who had treated him

after his accident: Dr. Konowitz and Dr. McCune. Dr.

Konowitz testified that, based on the information in his

file, he knew of no reason that Mr. Franzen would have

been unable to return to work as of May 31, 2002. Importantly, however, he also stated that his file contained

information on Mr. Franzen only until June 2002, and he

was not aware that Mr. Franzen subsequently had undergone surgery to repair his spine. Dr. McCune confirmed

that he had given Mr. Franzen a doctor’s note clearing

him for full-time work as of May 20, 2002; however, he

similarly testified that he was unaware of Mr. Franzen’s

surgery. Furthermore, Dr. McCune’s clearance note is of
16 Nos. 07-2009, 07-3358

limited usefulness to Mr. Franzen, considering the fact

that Mr. Franzen made no attempt to return to work on

May 20—more than a week before he was discharged from

Ellis. Finally, Mr. Franzen presented the testimony of

Tamara Herman, an administrative assistant to Dr.

Konowitz. She testified that she had seen Mr. Franzen

come to the doctor’s office on one occasion, and she had

not noticed him having any problems walking. To the

extent that this testimony is at all relevant, it certainly is

not indicative of Mr. Franzen’s ability to return to work.

Indeed, in his brief on appeal, Mr. Franzen does not

contend that any evidence in the record showed that he

was, in fact, able and willing to work; he contends only

that Ellis should have been estopped from presenting

evidence otherwise.

Specifically, Mr. Franzen contends that Ellis should

have been barred from presenting evidence regarding

his ability to return to work at the damages phase of the

trial because either (1) it had conceded the issue at the

jury trial on liability, or (2) the jury implicitly had decided

the issue when it found Ellis liable under the FMLA, and

the district court was therefore barred from reaching

a contrary conclusion. These arguments are without merit.

As the district court noted, Ellis had no reason to

present evidence of Mr. Franzen’s inability to return to

work at the jury phase of the trial. The sole question

before the jury was: “Did Plaintiff prove by a preponderance of the evidence that Defendant received the required medical documentation by May 28, 2002?” Tr. at 72.

Mr. Franzen’s ability to return to work at the end of his
Nos. 07-2009, 07-3358 17

leave period is not relevant to this question; it is relevant

solely to the question of damages. Accordingly, Ellis did

not waive its right to contest Mr. Franzen’s ability to

return to work by waiting to present evidence at the

damages phase of the trial.

Under the doctrine of issue preclusion or direct estoppel,

a district court may not re-decide factual issues already

necessarily determined by a jury. See United States v. Bailin,

977 F.2d 270, 276 (7th Cir. 1992); Lindsey v. Am. Cast Iron

Pipe Co., 810 F.2d 1094, 1098 (7th Cir. 1987). Mr. Franzen

submits that the jury’s finding of liability necessarily

included a finding that he would have been able to

return to work at least by the end of the twelve-week

period, and, therefore, the court may not find otherwise

at the damages stage of the proceedings.

Each of the cases cited by Mr. Franzen, however, involved a jury trial in which the jury had determined

both liability and damages issues, and the judge then

considered only whether the plaintiff was entitled to

equitable remedies. A jury award of back pay necessarily

includes a determination that the plaintiff was able to

return to work; therefore, under direct estoppel principles,

a district court could not refuse to grant equitable relief on

the ground that the plaintiff was unable to return to work.

See, e.g., Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d

955, 965-66 (10th Cir. 2002). In this case, however, the jury

did not consider Mr. Franzen’s entitlement to damages;

it merely determined that Ellis had received a doctor’s

note and therefore terminated Mr. Franzen in violation

of the FMLA. This conclusion does not necessarily
18 Nos. 07-2009, 07-3358

include a finding that he was entitled to reinstatement or

damages. Accordingly, the judge was not precluded

from finding otherwise at the damages portion of the trial.

Mr. Franzen’s only plausible argument with respect to

damages involves the twelve-week period in which Mr.

Franzen’s employment was protected under the FMLA.

Although the FMLA itself does not require that the leave

provided to employees be paid, see 29 U.S.C. § 2612(c), Ellis

voluntarily maintained a company policy of awarding

short-term disability pay concurrently with FMLA leave.

In fact, Ellis paid Mr. Franzen $1500 biweekly, or 60

percent of his salary, from the date of his injury to the

date of his termination. This short-term disability payment, he contends, would have continued for at least

twelve weeks had he not been discharged prematurely in

violation of the FMLA. Relying on Strickland v. Water Works

& Sewer Board, 239 F.3d 1199, 1205 (11th Cir. 2001), Mr.

Franzen submits that, at a minimum, the district

court should have awarded him damages equivalent to

the short-term disability pay that he would have received over this twelve-week period.

The district court declined to award Mr. Franzen these

damages for three reasons: (1) the court already had

dismissed on summary judgment his contract claim for

short-term and long-term disability pay, a judgment that

Mr. Franzen declined to appeal; (2) Mr. Franzen had

waived any right to assert disability pay as a component

of his damages because, throughout the proceedings, he

had requested only back pay, front pay, liquidated damages and attorneys’ fees under the FMLA; and (3) Mr.

Franzen made no attempt to mitigate his damages.
Nos. 07-2009, 07-3358 19

We agree with the court’s conclusion. We first note that,

until his motion to alter or amend the judgment, Mr.

Franzen’s only mention of an entitlement to disability

benefits was in connection with his contract claim. In his

initial complaint, Mr. Franzen contended that he was

entitled to both short-term and long-term disability

benefits under his employment contract with Ellis. The

district court concluded otherwise, however, noting that

he was an at-will employee and that Ellis’ employee

handbook, which was cited by Mr. Franzen as the basis for

his entitlement to disability benefits, also contained

language that specifically disclaimed the creation of a

contract. Accordingly, the court determined that Mr.

Franzen had no entitlement to either short-term or longterm disability pay, and it dismissed his claim. R.112 at 10.

Mr. Franzen declined to appeal this judgment. He cannot

now subvert this conclusion by contending that he was

entitled to disability benefits during the twelve weeks

that he was protected under the FMLA.

Moreover, Mr. Franzen failed to include disability pay as

a component of his asserted damages under his FMLA

claim until after a bench trial on damages was held and a

final judgment was entered. In his pre-trial submissions

to the court, Mr. Franzen set forth an itemized statement

of the damages that he requested. This itemization was

limited to back pay, front pay, interest, liquidated damages

and attorneys’ fees. Nowhere did he mention any entitle-
20 Nos. 07-2009, 07-3358

Indeed, even in his motion to alter or amend the judgment

7

and his brief on appeal, Mr. Franzen failed to quantify the

amount of disability pay to which he believes he is entitled.

ment to short-term disability benefits. The Final Pretrial 7

Order similarly contains no reference to disability benefits. Mr. Franzen did not proffer lost disability pay

as a form of damages under the FMLA until he filed his

Rule 59(e) motion to alter or amend the judgment. At this

point, it was too late. See Sigsworth v. City of Aurora, 487

F.3d 506, 512 (7th Cir. 2007) (“[I]t is well-settled that a

Rule 59(e) motion is not properly utilized to advance

arguments or theories that could and should have been

made before the district court rendered a judgment.”

(internal quotation marks omitted)).

Indeed, with respect to disability payments as well as

any other form of damages, it is important to note that,

under his own theory of the case, Mr. Franzen claims

that he was able and willing to return to work as of

May 28, 2002. Nevertheless, he admitted in his deposition that he made no effort to obtain another position

elsewhere after his termination from Ellis. We have

cautioned that a person discharged—even illegally—

cannot simply refuse to seek other employment and

expect his former employer to pay his salary until he

reaches retirement age. Mattenson v. Baxter Healthcare

Corp., 438 F.3d 763, 771 (7th Cir. 2006). “The familiar

common law duty of mitigating damages is imposed: the

employee must make a diligent search for comparable

employment.” Id. If Mr. Franzen’s theory of the case is
Nos. 07-2009, 07-3358 21

true, and he in fact was able to return to work as soon as

May 28, 2002, then his failure to mitigate his damages by

seeking substitute employment was unreasonable and

bars his recovery of disability benefits, as well as any

other form of damages requested by Mr. Franzen.

In sum, we conclude that Mr. Franzen failed to prove

that he was prejudiced by Ellis’ violation of the FMLA.

Overwhelming evidence in the record shows that he was,

at all times after his accident, unable and/or unwilling

to return to work. Mr. Franzen made no effort to rebut

Ellis’ overwhelming evidence that he had failed to

mitigate his damages. Accordingly, he cannot succeed on

his FMLA claim.

C.

Finally, Mr. Franzen contends that, regardless of whether

he is entitled to damages, he is entitled to an award of

attorneys’ fees because he proved that Ellis had interfered

unlawfully with his rights under the FMLA. See 29 U.S.C.

§ 2617(a)(3) (“The court in such an action shall, in addition

to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee . . . .” (emphasis added)).

Unlike most other statutory fee-shifting provisions,

section 2617 requires an award of attorneys’ fees to the

plaintiff when applicable. The award is not left to the

discretion of the district court. Id.; see also Sherry v. Protection, Inc., 14 F. Supp. 2d 1055, 1057 (N.D. Ill. 1998);

McDonnell v. Miller Oil Co., Inc., 968 F. Supp. 288, 292 (E.D.

Va. 1997). In this way, it is more favorable toward prevail-
22 Nos. 07-2009, 07-3358

ing plaintiffs than many other statutory fee-shifting

provisions. See McDonnell, 968 F. Supp. at 293. Furthermore, other courts have noted that the fee-shifting provision of the FMLA, which awards attorneys’ fees in addition to “any judgment” for the plaintiff, may apply more

broadly than similar provisions in other statutes that

refer instead to “prevailing parties.” See Sherry, 14 F. Supp.

2d at 1055, 1057; McDonnell, 968 F. Supp. at 293 (noting

that “ ‘any judgment’ likely includes such limited and

even Pyrrhic victories for a plaintiff that might fail to meet

the Supreme Court’s test of a ‘prevailing party’ ”). Nevertheless, the plain wording of the statute provides some

limit on this preference for awarding attorneys’ fees to

plaintiffs who prove that the defendant violated the

FMLA. According to 29 U.S.C. § 2617(a)(3), an actual

“judgment” in favor of the plaintiff is a necessary triggering event for an award of attorneys’ fees under the FMLA.

Id.; see also Stomper v. Amalgamated Transit Union, 27 F.3d

316, 318 (7th Cir. 1994) (holding that “the plaintiff must

prevail by judgment in order to receive an award of attorneys’ fees”).

In this case, however, the district court did not enter

judgment in favor of the plaintiff. Although the jury

found that Ellis’ termination of Mr. Franzen’s employment

had been in violation of the FMLA, the district court also

found that Mr. Franzen had failed to prove that he was

entitled to any damages. Accordingly, the court dismissed

the case and entered judgment in favor of Ellis. Under

the plain wording of section 2617, then, Mr. Franzen is not

entitled to an award of attorneys’ fees because no “judgment” was “awarded to the plaintiff.” 29 U.S.C.

§ 2617(a)(3); see also Stomper, 27 F.3d at 318.
Nos. 07-2009, 07-3358 23

In support, Mr. Franzen pieces together the language of some 8

unrelated sources to suggest that the jury verdict here was a

type of “interlocutory judgment” sufficient to satisfy Federal

Rule of Civil Procedure 54(a)’s definition of “judgment,” and,

therefore, that this verdict is sufficient to satisfy the “any

judgment” requirement of section 2617(a)(3). See Appellant’s Br.

at 10-11 (citing, inter alia, Fed. R. Civ. P. 56(c) & 58; Syvock v.

Milwaukee Boiler, 665 F.2d 149, 165 (7th Cir. 1981); Harris v.

Goldblatt, 659 F.2d 784, 786 (7th Cir. 1981)). These cases, however, involve only the appealability of interlocutory judgments—they do not discuss the meaning of “judgment” for the

purpose of applying a fee-shifting provision in a statute.

Mr. Franzen also invites our attention to a paragraph from

a prominent treatise on the subject; however, contrary to Mr.

Franzen’s inaccurate quotation, the cited source in fact

suggests that attorneys’ fees are available only when a plaintiff

is awarded damages in an amount greater than zero. Compare

Wright & Miller, Federal Practice & Procedure, § 2667 (3d ed.

2008) (noting that “when the jury finds for plaintiff as to

liability, it has been held that plaintiff is the prevailing party

and entitled to costs even though the jury determines that

plaintiff has suffered no more than nominal damages” (emphasis

added)), with Appellant’s Br. at 11 (misquoting Wright &

Miller to state that “when the jury finds for plaintiff as to

(continued...)

Despite the fact that the district court entered final

judgment in favor of Ellis, Mr. Franzen contends that he

nevertheless is entitled to attorneys’ fees. In his view, the

jury’s verdict in his favor on the issue of liability is a

sufficient “judgment” to warrant an award under

section 2617(a)(3). An interlocutory jury verdict on the 8
24 Nos. 07-2009, 07-3358

(...continued) 8

liability, it has been held that plaintiff is the prevailing party

and entitled to costs even though the jury determines that

plaintiff has suffered no damages.” (emphasis added)).

issue of liability alone, however, is insufficient to constitute a judgment awarded to the plaintiff. See

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &

Human Res., 532 U.S. 598, 604-05 (2001) (noting that an

“interlocutory ruling” is insufficient to establish a judgment on which an award of attorneys’ fees may be based

because it does not create a “material alteration of the

legal relationship of the parties”). As we noted in Stomper:

“[I]n addition to any judgment awarded to the plaintiff” implies a favorable judgment. Every case ends with

a judgment of some kind; in this case the terminating

order reads: “Judgment is entered dismissing this

case with prejudice in light of the parties’

settlement . . . .” So far as the merits go, plaintiffs not

only did not prevail but also suffered dismissal of their

complaint with prejudice. That is not a judgment

“awarded to” the plaintiffs; it is a judgment suffered by

the plaintiffs. If this were the sort of “judgment” to

which fees may be added, even a judgment in defendants’ favor after full deliberation would produce an

award of fees to plaintiffs—for a judgment reading

“Plaintiffs shall take nothing by their complaint” is

still a judgment.

27 F.3d at 318-19 (emphasis in original). We continued:
Nos. 07-2009, 07-3358 25

Delta Air Lines[, Inc. v. August, 450 U.S. 346 (1981)] held

that a complete lack of success did not require the

offeree to pay the other side’s costs. Only a positive

award to the offeree permits cost shifting under Rule

68, the Court concluded, because only a decision

favorable in some respect is a judgment “obtained by”

the plaintiff. By a similar approach, only concrete

relief is a “judgment awarded to the plaintiff” that

permits fee shifting under § 201(c).

Id. at 319 (emphasis added); see also Tunison v. Cont’l

Airlines Corp., 162 F.3d 1187, 1190 (D.C. Cir. 1998) (“Unlike

the award of nominal damages at issue in Farrar, a judgment with no damages at all is not an ‘enforceable judgment’—there is simply nothing to enforce.”); PH Group

Ltd. v. Birch, 985 F.2d 649, 652 (1st Cir. 1993) (“[A]n award

of zero damages, supported by a rational basis in the

record, is generally considered a judgment for defendant.”).

Mr. Franzen also invites our attention to some district

court cases, see Stomper, 27 F.3d at 318; Rice v. Sunrise

Express, 237 F. Supp. 2d 962, 969 (N.D. Ind. 2002); Sherry, 14

F. Supp. 2d at 1057; McDonnell, 968 F. Supp. at 292, in

which the court awarded attorneys’ fees to the plaintiff

under section 2617, even though the plaintiff received

either minimal or nominal damages and therefore

would not have been considered a “prevailing party”

under most fee-shifting provisions. Each of these cases

is readily distinguishable, however, as each involved an

award of at least a nominal amount of damages to

the plaintiff. Here, on the other hand, the court concluded
26 Nos. 07-2009, 07-3358

that Mr. Franzen had failed to prove that he was entitled

to any damages, and it therefore entered judgment in

favor of the defendant. As the district court remarked,

“[t]he difference between this case and [those cases cited

by the plaintiff] hinges on the difference between a judgment and a verdict . . . .” R.269 at 6. This type of interlocutory jury verdict, alone, is insufficient to establish a

“judgment awarded to the plaintiff” on which an award

of attorneys’ fees under section 2617 may be based.

Conclusion

For the reasons set forth above, we affirm the judgment of the district court.

AFFIRMED

9-10-08