* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set

forth in 5 TH C IR . R. 47.5.4.

1 29 U.S.C. § 2601 et seq

.

2 42 U.S.C. § 2000e et seq

.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50059

Summary Calendar

DOLLY E. GATES VARGAS,

Plaintiff-Appellee/Cross-Appellant,

versus

HORIZON/CMS HEALTHCARE CORPORATION,

Defendant-Appellant/Cross-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(EP-97-CV-67-DB)

December 23, 1998

Before POLITZ, Chief Judge, EMILIO M. GARZA and DeMOSS, Circuit Judges.

POLITZ, Chief Judge: *

A jury awarded Dolly Gates Vargas $24,500 in compensatory damages

against Horizon/CMS Healthcare Corporat ion for its retaliation against her for

taking leave under the Family & Medical Leave Act (FMLA), 1 an d $125,500 in

damages under Title VII 2 because she was fired because of her pregnancy. The2

district court granted Horizon a judgment as a matter of law as relates to the FMLA

claim and denied same as relates to the Title VII claim. Both parties appeal.

BACKGROUND

In October 1993, Horizon retained Vargas as Director of Nurses for its

nursing home facility. Several months later, Vargas became pregnant. After she

suffered fainting spells and dizziness, a doctor recommended that she not return to

work because of the high-risk nature of her pregnancy. Vargas took paid time off

before requesting and receiving leave that commenced in November 1994.

At the end of he r leave, Horizon restored Vargas to substantially the same

position. Four months after returning to work, Vargas became pregnant again, and

the following month, Richard Boswell, her supervisor, learned of this second

pregnancy. When Vargas suffered from the flu and missed a few days of work in

January 1996, Boswell checked the costs Horizon had incurred because of Vargas’

earlier pregnancy and was taken aback by the substantial expense. There was no

evidence that Boswell’s investigation of the disability expenses resulting from

Vargas’ FMLA leave was part of an overall inquiry into such expenses. Shortly

thereafter, in February 1996, Joe Turmes suspended Vargas, purportedly for

directing nurses to backdate m edical records. Turmes consulted with Boswell

before the pair jointly decided to suspend, and eventually terminate, Vargas.

Vargas initiated this action, alleging that Horizon’s decision was in

retaliation for her earlier leave taken under the FMLA, and that the decision was

motivated by her pregnancy. The jury returned a verdict for Vargas on both claims3 Rhodes v. Guiberson Oil Tools

, 75 F.3d 989 (5 th Cir. 1996) (en banc) (ADEA

context).

4 Id.

5 The district court concluded that a prima facie case for a FMLA retaliation

claim includes the following elements: (1) plaintiff took FMLA leave; (2) plaintiff

suffered an adverse employment action; and (3) there was a causal connection

between the adverse action and plaintiff’s taking FMLA leave. The district court’s

interpretation of the FMLA is consistent with the views of other courts of appeal.

Hodgens v. General Dynamics Corp.

, 144 F.3d 151 (1 st Cir. 1998); Cline v. WalMart Stores, Inc. , 144 F.3d 294 (4 th Cir. 1998) (stating its belief, but not actually

3 as above noted. Horizon moved for judgment as a matter of law with respect to

both claims. The district court granted Horizon judgment as a matter of law with

respect to the award of damages on the FMLA claim , denying the remainder of

Horizon’s motion. The court also denied Horizon’s motion for a new trial.

Horizon timely appealed these denials, and Vargas timely cross-appealed the grant

of judgment as a matter of law for Horizon with respect to her FMLA claim.

ANALYSIS

In reviewing a motion for judgment as a matter of law in an action tried by

jury, we may overturn the jury’s verdict only if it is not supported by legally

sufficient evidence, that is, evidence of such quality and weight that reasonable and

fa ir-minded individuals exercising impartial judgment might reach different

conclusions. 3 In making this determination, we view all the evidence in the light

most favorable to the verdict, and reverse only if no reasonable jury could have

reached such a verdict. 4

We find no error in the district c ourt’s determination that the evidence

presented a jury question concerning Horizon’s alleged FMLA retaliation. 5reaching the issue); Richmond v. Oneok, Inc. , 120 F.3d 205 (10 th Cir. 1997).

6 Fowler v. Carrollton Pub. Library

, 799 F.2d 976, 984 (5 th Cir. 1986)

(“Motivation presents a classic jury issue.”(ADEA context)).

7 29 U.S.C. § 2617(a)(1)(A)(i)(I) (“any wages, salary, employment benefits, or other compensation”).

8 Rhodes v. Guiberson Oil Tools

, 82 F.3d 615 (5 th Cir. 1996) (ADEA context).

4 Without objection, the district court instructed the jury that it should find for

Vargas i f retaliation, more likely than not, motivated Horizon’s employment

decision. Horizon maintained that its employment decision was motivated solely

by Vargas’ role in the backdating of medical records. Vargas postulated that

Horizon’s decision was improperly motivated, as evidenced by the close temporal

proximity between Boswell’s review of expenditures ste mming from her FMLA

leave and his participation in the decision to suspend her. In arguing that Horizon’s

stated rationale was mere pre text, Vargas noted that, unlike herself, those

individuals who purportedly ma de the backdated entries in the medical records

were neither suspended nor terminated. Consequently, Vargas asserts, there was

a fact issue as to the motivation behind Horizon’s employment decision. 6 Thus,

this and other evidence was sufficient to allow the jury to determine that Horizon

retaliated against Vargas for her exercise of FMLA leave, b ringing the issue of

damages to the fore.

The FMLA allows wronge d plaintiffs to recover damages for salary and

employment ben efits lost as a result of improper employment actions. 7 The

evidence must support any award of damages. 8 The trial court granted Horizon’s9 Presumably the jury could have inferred that Vargas would have remained

employed at Horizon until October 1997, the month of its verdict; but this inference

need only reach the month of April 1997 for today’s disposition.

5 motion for judgment as a m atter of law because Horizon did not reduce Vargas’

salary or benefits after her return fr om her FMLA leave. Thus, according to the

district court, Vargas suffered no damages as a result of he r FMLA leave.

Although this observation is a ccurate, it does not address Vargas’ claim nor the

jury’s finding.

The district court det ermined that there was sufficient evidence of retaliation.

The retaliation was the employment actions that followed Boswell’s investigation

into the costs incurred as a res ult of Vargas’ FMLA leave. The loss alleged by

Vargas, and obviously as found by the jury, is the loss resulting from Horizon’s

improper suspe nsion and termination, not a loss from any reduction in either

compensation or benefits immediately following Vargas’ FMLA leave and her

return to work.

We n eed look no further than Vargas’ salary to conclude that there was

sufficient evidence to support the jury’s award of damages. Without objection, the

district court instructed the jury that it could compensate Vargas for any damages

that she had suffered “to date” (Octobe r 1997). Unchallenged testimony

established that Vargas received $47,675 in annual salary at the t ime of her

suspension in February 1996 and that she was not employed again until April 1997.

The jury could have inferred that Vargas would have remained emplo yed at

Horizon until April 1997. 9 Even assuming that Vargas received twelve weeks of10 Horizon’s FMLA policy allows for twelve weeks of leave for “the birth of a

son or daughter of [an] employee and in order to care for such son or daughter . .

. .” We assume that Vargas’ earlier leave was premised upon a “serious medical

condition” for the following reasons. First, her earlier leave extended for six

months (November 1994-May 1995) and Horizon’s FMLA policy allows for such

extended leave only under a “serious health condition” provision that mirrors 29

U.S.C. § 2612(a)(1)(D). Second, at the time her leave commenced, Vargas was

only midway through her pregnancy, so neither the “birth” provision nor any

remaining provision seems applicable. Third, Horizon presented no arguments to

the contrary.

We distinguish the basis for each leave because of certain limitations within

Horizon’s FMLA policy. Horizon’s FMLA policy limits leave taken under the

“birth” provision to twelve weeks during any twelve-month period . Similarly, the

policy limits leave taken under the “serious health condit ion” provision to six

mo n ths during any twelve-month period

. The policy, however, does not bar an

employee from taking leave under both provisions during a twelve-month period.

6 leave for her pregnancy, 10 the jury could have inferred that Vargas would have been

compensated for the remainin g weeks between February 1996 and April 1997.

Based upon her annual salary of $47,675, such compensation would have exceeded

$24,500. We perforce must therefore conclude that there was sufficient evidence

upon which the jury could base its award of $24,500.

Accordingly, we vacate that part of the district court’s order that granted

Horizon’s motion for judgment as a matter of law with respect to the jury’s award

of FMLA damages, and we reinstate the jury’s award of $24,500. We otherwise

affirm the district court’s denial of Horizon’s motion for judgment as a matter of

law and also its denial of Horizon’s motion for a new trial.

AS MODIFIED, the judgment is AFFIRMED.