FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIANE L. SANDERS, 

Plaintiff-Appellant, No. 08-35996

v.  D.C. No.

CITY OF NEWPORT, 6:07-CV-00776-TC

Defendant-Appellee. 

DIANE L. SANDERS, 

Plaintiff-Appellee, No. 09-35119

v.  D.C. No.

CITY OF NEWPORT, 6:07-cv-00776-TC

Defendant-Appellant. 

DIANE L. SANDERS, 

No. 09-35196 Plaintiff-Appellee,

D.C. No.

v.  6:07-cv-00776-TC

CITY OF NEWPORT,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Thomas M. Coffin, Magistrate Judge, Presiding

Argued and Submitted

March 1, 2010—Portland, Oregon

Filed March 17, 2011

3659
Before: Richard A. Paez, Richard C. Tallman and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez

3660 SANDERS v. CITY OF NEWPORT
COUNSEL

Thomas Doyle, Bennett Hartman Morris & Kaplan, LLP,

Portland, Oregon, for the plaintiff-appellant.

3662 SANDERS v. CITY OF NEWPORT
Karen O’Kasey, Sean Bannon, Matthew Kalmanson, Marjorie

Speirs, Hoffman, Hart & Wagner, LLP, Portland, Oregon, for

the defendant-appellee.

OPINION

PAEZ, Circuit Judge:

Diane Sanders, a former employee of the City of Newport

(“the City”), sued the City when it refused to reinstate her

after she took an approved medical leave. In her complaint,

Sanders alleged that the City violated the Family and Medical

Leave Act of 1993 (“FMLA”), the Oregon Family Leave Act

(“OFLA”), and other state and federal laws when it failed to

reinstate her after she took FMLA/OFLA leave, and ultimately fired her.1

 At trial, the City argued that it could not

provide a safe workplace for Sanders because she suffered

from multiple chemical sensitivity. In a bifurcated trial, a jury

decided Sanders’s FMLA and other damages claims, while

the court decided Sanders’s claims for equitable relief under

OFLA. The jury returned its verdict in favor of the City, finding that the City did not violate Sanders’s FMLA rights. On

the basis of the same evidence presented to the jury, the court

concluded that the City violated Sanders’s OFLA rights and

awarded monetary relief. Both Sanders and the City timely

appealed. In her appeal, Sanders argues that the court improperly instructed the jury on the elements of her FMLA interference claim. Sanders further argues that the instructional error

was not harmless and therefore she is entitled to a new trial.

In its appeal, the City argues that the court was bound by the

jury’s implicit factual findings that it made in rendering a verdict for the City on Sanders’s FMLA claim. The City thus

1Sanders was granted medical leave under both the FMLA and the

OFLA, but for clarity, we refer to it throughout the opinion as FMLA

leave. 

SANDERS v. CITY OF NEWPORT 3663
argues that it is entitled to judgment on Sanders’s OFLA

claim.

For the reasons explained below, we agree with Sanders

that the trial court improperly instructed the jury on the elements of her FMLA interference claim and that the error was

not harmless. We therefore reverse the judgment as to this

claim and remand for a new trial. Because the jury was

improperly instructed, we vacate the judgment on Sanders’s

OFLA claim and remand it for further consideration after the

retrial of her FMLA claim. 

I. Factual and Procedural Background

The City employed Diane Sanders as a utility billing clerk

for approximately ten years. Sanders compiled water and utility bills, issued monthly bills, and provided customer service.

After the City moved Sanders’s office to a new location and

started to use lower-grade billing paper, Sanders began suffering health problems. Sanders consulted with a specialist, Dr.

Morgan, who diagnosed her as suffering from multiple chemical sensitivity. In Dr. Morgan’s opinion, the condition was

triggered by handling low-grade paper at work and poor air

quality in Sanders’s work area. The City, in response to Sanders’s complaints, retained an expert to test the air quality in

Sanders’s work area. The expert determined that the air quality met governing health and safety standards. The Oregon

Occupational Safety and Health Division of the Department

of Consumer and Business Services rendered a similar report

after testing air samples in the copy room. 

On the basis of Dr. Morgan’s advice, Sanders requested

and received one month of FMLA leave, starting on January

19, 2006, to see if her health would improve if she were not

exposed to the chemicals in her office. Sanders’s leave was

later extended because she had an unrelated medical condition. After the City sent a letter to Sanders, stating that she

needed “to present a fitness-for-duty certificate from [her]

3664 SANDERS v. CITY OF NEWPORT
physician prior to being restored to employment,” Dr. Morgan

faxed a letter to the City stating that Sanders had recovered

from her other medical condition and that he believed she

could return to work, so long as she avoided use of the

problem-causing low-grade paper. The City had stopped using

the low-grade paper while Sanders was on FMLA leave.

Sanders also submitted a fitness-for-work certificate from the

surgeon who treated her unrelated medical condition. On May

5, 2006, the City informed Sanders that she would not be permitted to return to work because the City could not guarantee

that her workplace would be safe for her due to her chemical

sensitivity. The City and Sanders continued to correspond

throughout May and June, during which time Sanders consistently requested reinstatement and assured the City that she

was ready to return to work.

On January 8, 2007, the City sent Sanders a letter advising

her that her employment would be terminated that same day

“due to the restrictions placed on [her] by [her] physician, Dr.

Morgan, which the City is unable to accommodate.” Sanders

filed an administrative appeal of the decision to terminate her

employment. In response to her appeal, the City informed her:

“The decision to terminate your employment was made for

the reason that the City could not provide a safe workplace for

you, given your sensitivity to chemicals and the lack of

knowledge as to the chemicals or concentrations that may

cause a reaction.” 

Sanders filed her district court complaint in July 2007,

alleging violations of the Americans with Disabilities Act

(“ADA”), FMLA, OFLA, and other federal and state laws.

Following discovery, the City moved for summary judgment

on all claims. The district court granted the City’s motion on

Sanders’s workers’ compensation claim, but denied summary

judgment on all other claims. At trial, the court impaneled a

jury to hear Sanders’s FMLA and other damages claims.

Because the remedial relief that Sanders sought under OFLA

and a state law retaliation claim was equitable in nature, these

SANDERS v. CITY OF NEWPORT 3665
claims were severed and deferred by the court until the conclusion of the jury trial.

Although the parties discussed the nature of Sanders’s

FMLA claim with the court at a pretrial conference, it was not

entirely clear at the outset of the trial whether Sanders was

pursuing a retaliation or interference claim. As the trial progressed, the court, with clarification from counsel, determined

that Sanders was pursuing an interference claim. With this

clarification, the judge stated that he would modify the proposed jury instructions and verdict form to instruct the jury to

consider whether “plaintiff prove[d] by a preponderance of

the evidence that defendant failed to reinstate her . . . . [a]fter

she took family medical leave[.]” 

The next day, after discussion with counsel, the court determined that the FMLA instruction needed further revision. The

City argued that the court’s proposed instruction did not

require Sanders to prove that the City’s decision to terminate

her was unlawful. In the City’s view, an employer should only

be liable if it acted wrongfully in terminating its employee,

and the employee should bear the burden of proving as much.

In response, the court proposed to modify the instruction and

verdict form to instruct the jury to consider whether “plaintiff

prove[d] by a preponderance of the evidence that the defendant, without reasonable cause, failed to reinstate her after

she took leave[.]” (Emphasis added). Sanders objected, arguing that the proposed revision was a misstatement of the law.

The following colloquy between the court and counsel

ensued: 

The Court: I suppose it boils down to the issue of

whether [the City’s] perception of [Sanders] as being

unable to return to the workplace without getting

sick, whether that’s reasonable cause or not.

[Sanders]: I think that . . . where the employer says

we can’t . . . we’re not bringing you back because of

3666 SANDERS v. CITY OF NEWPORT
this doctor’s note that restricts you in some way that

we can’t do, that’s an affirmative defense that they

can raise, certainly. They haven’t at this point. They

have to show that they’re excused from the obligations created by the statute. And that excuse —

The Court: What do you mean they haven’t raised

that as a defense? I thought they had.

[Sanders]: I have not seen that in the pleadings.

. . .

The Court: Well, haven’t they, in their testimony,

stated that the reason they didn’t reinstate her and

the reason they terminated her was because they

thought that she would get sick if she returned to that

work environment?

[Sanders]: That has been the testimony, because it’s

been overlapping with a number of other different

issues, absolutely, there is no question about that.

But, once again, in terms of the instructions, I don’t

think that — and in terms of what’s properly before

the jury . . . that hasn’t been properly brought as an

affirmative defense in this case.

[The City]: First of all, Your Honor, there are no

affirmative defenses — as a matter of statute to date,

there are no affirmative defenses required of the

employer to plead in a Family Medical Leave Act

claim, like there are in the Americans with Disabilities Act claim. . . . [T]here are only two cases in the

Ninth Circuit interpreting FMLA, Bachelder and

Amway. Neither of them say[s] that there is some

affirmative defense that the employer can raise. Both

of them say that there has to be some, you know, discriminatory or bad motive on the part of the

employer. They both confuse retaliation with interSANDERS v. CITY OF NEWPORT 3667
ference. And in the Amway case, the Ninth Circuit

acknowledges that this confusion occurred. And so

— and as far as the facts of this case, yes, there has

been testimony [that Sanders] took leave. She was

qualified to take leave. The reason I didn’t bring her

back is because I couldn’t guarantee a safe workplace. And I think the reasonable cause language that

the court is proposing is adequate and appropriate.

The Court: Okay. I think that’s what I’ll do. That

the defendant, without reasonable cause, failed to

reinstate her after she took leave.2

All but two state claims (including the OFLA claim) were

submitted to the jury, which returned a verdict for the City on

all claims. Sanders timely appeals the judgment entered on the

jury’s verdict, arguing that the district court’s jury instructions

misstated the law. 

On the basis of the jury’s implicit factual findings, the court

found for the City on Sanders’s state law retaliation claim, but

found that Sanders proved by a preponderance of the evidence

that the City refused, without reasonable cause, to reinstate

Sanders after she took family medical leave pursuant to

OFLA. As to that claim, the court awarded Sanders $64,040

in back pay, front pay, and other related losses, and

2The court’s final jury instruction read: 

Plaintiff also claims that she was not reinstated to her job after

she took family medical leave. In order to prove that claim,

plaintiff must prove both of the following: (1) that she requested

family medical leave; and (2) that she was denied reinstatement

or discharged from employment without reasonable cause after

she took family medical leave. 

The related question on the jury verdict form asked: 

3. Did plaintiff prove by a preponderance of the evidence that the

defendant, without reasonable cause, failed to reinstate her after

she took family medical leave? 

3668 SANDERS v. CITY OF NEWPORT
$60,488.65 in attorney fees and costs and entered judgment

accordingly. The City timely appealed, arguing that the trial

court was required to reach the same determination on Sanders’s OFLA claim as the jury reached on the FMLA claim. 

II. Discussion

A. The FMLA

Enacted in 1993, the FMLA “was the culmination of several years of negotiations in Congress to achieve a balance

that reflected the needs of both employees and their employers.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119

(9th Cir. 2001). The declared purpose of the FMLA is:

(1) to balance the demands of the workplace with the

needs of families, to promote the stability and economic security of families, and to promote national

interests in preserving family integrity;

(2) to entitle employees to take reasonable leave for

medical reasons, for the birth or adoption of a child,

and for the care of a child, spouse, or parent who has

a serious health condition;

(3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates

the legitimate interests of employers.

29 U.S.C. § 2601(b). To that end, “[t]he FMLA creates two

interrelated, substantive employee rights: first, the employee

has a right to use a certain amount of leave for protected reasons, and second, the employee has a right to return to his or

her job or an equivalent job after using protected leave.”

Bachelder, 259 F.3d at 1122 (citing 29 U.S.C. §§ 2612(a),

2614(a)). As described in greater detail in Bachelder, 29

U.S.C. § 2615(a) sets forth two very different ways to protect

these substantive rights. Id. at 1124; see also Xin Liu v.

SANDERS v. CITY OF NEWPORT 3669
Amway Corp., 347 F.3d 1125, 1133 & n.7 (9th Cir. 2003);

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955,

960 (10th Cir. 2002) (“Courts have recognized two theories

for recovery on FMLA claims under § 2615, the retaliation or

discrimination theory and the entitlement or interference theory.”); Strickland v. Water Works & Sewer Bd. of Birmingham,

239 F.3d 1199, 1206 n.9 (11th Cir. 2001) (“While the FMLA

does not clearly delineate these two claims with the labels

‘interference’ and ‘retaliation,’ those are the labels courts

have used in describing an employee’s claims under the

Act.”). 

[1] Under § 2615(a)(2), it is “unlawful for any employer to

discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful by this

subchapter.” 29 U.S.C. § 2615(a)(2). An allegation of a violation of this section is known as a “discrimination” or “retaliation” claim. See Bachelder, 259 F.3d at 1124; see also, e.g.,

Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006);

Smith, 298 F.3d at 960; Strickland, 239 F.3d at 1207.

Although undecided in this circuit, see Bachelder, 259 F.3d

at 1125 n.11, other circuits that have considered how a plaintiff can establish liability in an FMLA discrimination or retaliation claim have adopted some version of the McDonnell

Douglas v. Green burden shifting framework.3 411 U.S. 792

3Under the McDonnell Douglas burden shifting framework, the plaintiff

first must establish a “prima facie case of discrimination or retaliation.”

Metoyer v. Chassman, 504 F.3d 919, 931 n.6 (9th Cir. 2007). If the plaintiff establishes a prima facie case, the burden then shifts to the defendant

to articulate “a legitimate, nondiscriminatory reason for the adverse

employment action.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d

840, 849 (9th Cir. 2004). If the employer articulates a legitimate reason

for its action, the plaintiff must then show that the reason given is pretextual. See Pottenger v. Potlatch Corp., 329 F.3d 740, 746 (9th Cir. 2003).

“[A] plaintiff can prove pretext either (1) indirectly, by showing that the

employer’s proffered explanation is unworthy of credence because it is

internally inconsistent or otherwise not believable, or (2) directly, by

showing that unlawful discrimination more likely motivated the employer.” Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002) (internal quotation marks omitted). 

3670 SANDERS v. CITY OF NEWPORT
(1973); see, e.g. Edgar, 443 F.3d at 508; Doebele v.

Sprint/United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir.

2003); Strickland, 239 F.3d at 1207; Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998). As noted earlier,

at trial Sanders did not pursue a discrimination or retaliation

claim under the FMLA, but we note this burden shifting

scheme as a point of reference for the approach we have

adopted for evaluating an interference claim.

[2] Under § 2615(a)(1), it is “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt

to exercise” the substantive rights guaranteed by FMLA. 29

U.S.C. § 2615(a)(1). When a party alleges a violation of

§ 2615(a)(1), it is known as an “interference” or “entitlement”

claim. Bachelder, 259 F.3d at 1124; see also, e.g., Edgar, 443

F.3d at 507; Smith, 298 F.3d at 960; Strickland, 239 F.3d at

1207. In this circuit, we have declined to apply the type of

burden shifting framework recognized in McDonnell Douglas

to FMLA “interference” claims; rather, “[an employee] can

prove this claim, as one might any ordinary statutory claim,

by using either direct or circumstantial evidence, or both.”

Bachelder, 259 F.3d at 1125; see Xin Liu, 347 F.3d at 1136

(“While other circuits have applied the McDonnell Douglas

framework to FMLA termination [interference] cases, this

Circuit . . . explicitly declined to apply this framework [to

interference claims].”).

“The right to reinstatement guaranteed by 29 U.S.C.

§ 2614(a)(1) is the linchpin of the entitlement theory because

‘the FMLA does not provide leave for leave’s sake, but

instead provides leave with an expectation that an employee

will return to work after the leave ends.’ ” Edgar, 443 F.3d at

507 (alteration omitted) (quoting Throneberry v. McGehee

Desha Cnty. Hosp., 403 F.3d 972, 978 (8th Cir. 2005)). Thus,

evidence that an employer failed to reinstate an employee

who was out on FMLA leave to her original (or an equivalent)

position establishes a prima facie denial of the employee’s

SANDERS v. CITY OF NEWPORT 3671
FMLA rights. See 29 C.F.R. § 825.220(b) (2008)4

 (explaining

that any violation of the FMLA constitutes interference with

rights under the FMLA); cf. Xin Liu, 347 F.3d at 1135 (“A

violation of the FMLA simply requires that the employer

deny the employee’s entitlement to FMLA leave.” (citing 29

C.F.R. § 825.220(a)(1), (b)). The Sixth and Seventh Circuits

have ably summarized the elements of an employee’s prima

facie case where the employer fails to reinstate the employee:

“the employee must establish that: (1) he was eligible for the

FMLA’s protections, (2) his employer was covered by the

FMLA, (3) he was entitled to leave under the FMLA, (4) he

provided sufficient notice of his intent to take leave, and (5)

his employer denied him FMLA benefits to which he was

entitled.” Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir.

2006) (citing Hoge v. Honda Am. Mfg., Inc., 384 F.3d 238,

244 (6th Cir. 2004)). We agree with this approach. In interference claims, the employer’s intent is irrelevant to a determination of liability. See Xin Liu, 347 F.3d at 1135; Bachelder,

259 F.3d at 1130; Edgar, 443 F.3d at 507 (“The employer’s

intent is not a relevant part of the entitlement inquiry under

§ 2615.”); see also Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir. 2005) (“[E]mployer

motive plays no role in a claim for substantive denial of benefits.”); Smith, 298 F.3d at 960 (“If an employer interferes with

the FMLA-created right to medical leave or to reinstatement

following the leave, a deprivation of this right is a violation

regardless of the employer’s intent.”); see also Strickland, 239

F.3d at 1208; Hodgens, 144 F.3d at 159.

Although the FMLA created a statutory right to reinstatement after taking FMLA leave, this right is not without limits.

4The Department of Labor amended the FMLA implementing regulations, effective January 16, 2009. Although the regulations in effect at the

time of the events in this case have since been amended, the regulations

discussed in this opinion are virtually unchanged in substance. Compare

29 C.F.R. §§ 825.214, 825.216, 825.312 (2008) with 29 C.F.R. § 825.216

(2009). Because the events in this case took place prior to the effective

date of the amendments, all citations are to the 2008 FMLA regulations.

3672 SANDERS v. CITY OF NEWPORT
The FMLA is clear on this point: “Nothing in this section

shall be construed to entitle any restored employee to . . . any

right, benefit, or position of employment other than any right,

benefit or position to which the employee would have been

entitled had the employee not taken the leave.” 29 U.S.C.

§ 2614(a)(3)(B). The Department of Labor (“DOL”) has interpreted this part of the statute in various regulations that set

forth the limitations on an employee’s right to reinstatement.5

See, e.g., 29 C.F.R. §§ 825.214(b), 825.216(c), (d), 825.312.

All the circuits that have considered the issue have relied on

DOL regulations to hold that the FMLA provides an

employee with only a limited right to reinstatement. See, e.g.,

Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 547 (4th

Cir. 2006); Edgar, 443 F.3d at 507-08; Throneberry, 403 F.3d

at 977; Smith, 298 F.3d at 960-61; Strickland, 239 F.3d at

1208; Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1018 (7th

Cir. 2000). The circuits disagree, however, about which party

must carry the burden of proof when an employer defends

against a denial of reinstatement by asserting one of the limitations set forth in DOL regulations.

Here, Sanders argues that the court’s FMLA jury instruction improperly placed the burden on her to prove that she

was denied reinstatement without cause and that by adopting

a reasonable cause requirement, the court incorrectly stated

the elements of her FMLA claim. We address these issues

below and conclude that under Bachelder and Xin Liu, the

FMLA and DOL implementing regulations, the court’s

instruction was erroneous. We further conclude that the error

was not harmless. 

5Congress authorized DOL to issue implementing regulations for the

FMLA. See 29 U.S.C. § 2654. “These regulations are entitled to deference

under Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843-44 [ ] (1984).” Xin Liu, 347 F.3d at 1133 (citing Bachelder,

259 F.3d at 1123 n.9). 

SANDERS v. CITY OF NEWPORT 3673
B. The District Court’s Instructions were Erroneous 

[3] The district court’s jury instruction placed the burden

of proof on Sanders to establish that the City had no reasonable cause for failing to reinstate her. On appeal, Sanders

argues that, contrary to the district court’s instruction, the burden of proof should have been placed on the City.6

 This is an

issue of first impression in this court. Although the issue was

raised in Gambini v. Total Renal Care, Inc., 486 F.3d 1087

(9th Cir. 2007), we have not directly addressed which party

bears the ultimate burden of proof when an employer alleges

that he had a legitimate reason not to reinstate an employee.

In Gambini, the plaintiff appealed the denial of her FMLA

interference claim alleging that the jury instructions misstated

the law regarding which party had the burden of proving

whether the employer would have terminated the employee

had the employee not taken FMLA leave. Id. at 1097. We

found that we did not need to decide the issue because the

defendant offered “uncontradicted evidence that [the

employer] terminated Gambini for conduct unrelated to her

FMLA leave.” Id. As the issue remains unresolved, we must

determine which party carries the burden of proof when an

employer defends against an interference claim.

[4] The key regulation at issue in this case is 29 C.F.R.

§ 825.214. That regulation addresses an employee’s right to

return to work following FMLA leave. Subsection (a) provides that “[o]n return from FMLA leave, an employee is

entitled to be returned to the same position the employee held

when leave commenced, or to an equivalent position . . . .” Id.

Subsection (b) further provides that “[i]f the employee is

6The City argues that Sanders failed to preserve any objection to the

court’s FMLA instruction, but the extensive discussion quoted above in

Part I clearly shows that Sanders complied with Federal Rule of Civil Procedure 51 by objecting at the time of trial “on grounds that were sufficiently precise to alert the district court to the specific nature of the

defect.” Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1015 (9th

Cir. 2007) (internal quotation marks omitted); see Fed. R. Civ. P. 51(c).

3674 SANDERS v. CITY OF NEWPORT
unable to perform an essential function of the position

because of a physical or mental condition, including the continuation of a serious health condition, the employee has no

right to restoration to another position under the FMLA.” Id.

Although the text of § 825.214(b) is ambiguous with respect

to the parties’ respective burdens, it is clear from other regulations that the burden rests with the employer to establish

whether the employee can perform the essential functions of

the job. Section 825.312(d) provides: “An employer must be

able to show, when an employee requests restoration, that the

employee would not otherwise have been employed if leave

had not been taken in order to deny restoration to employment.” 29 C.F.R. § 825.312(d) (emphasis added) (titled

“Under what circumstances may a covered employer refuse to

provide FMLA leave or reinstatement to eligible employees?”). Section 825.216(a) is to the same effect, and provides

that “[a]n employer must be able to show that an employee

would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” Thus, the plain language of the pertinent DOL

regulations provides that the burden is on the employer to

show that he had a legitimate reason to deny an employee

reinstatement.

The majority of the circuits that have considered this issue

agree with this textual reading.7 The Eighth, Tenth and Eleventh Circuits, relying on the plain text of 29 C.F.R.

§ 825.216(a), have all held “that the regulation validly shifts

to the employer the burden of proving that an employee . . .

would have been dismissed regardless of the employee’s

request for, or taking of, FMLA leave.” Smith, 298 F.3d at

963; see Throneberry, 403 F.3d at 979; Strickland, 239 F.3d

at 1208. That approach is also consistent with the Supreme

7The Seventh Circuit, over a dissent, relying on its previous case law

interpreting the statute rather than the plain text of the regulations, has

held that the burden of proof remains with the employee. Rice, 209 F.3d

at 1018. 

SANDERS v. CITY OF NEWPORT 3675
Court’s admonition that the burden of proof should “conform

with a party’s superior access to the proof.” See Int’l Bhd. of

Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977). 

[5] We agree with the Tenth Circuit that this is the “more

natural” reading of the text of 29 C.F.R. § 825.214(b); Smith,

298 F.3d at 963. Moreover, this interpretation follows the

analysis set forth in Bachelder and Xin Liu, both of which

rejected the McDonnell Douglas burden-shifting framework

in analyzing FMLA interference claims. Xin Liu, 347 F.3d at

1136; Bachelder, 259 F.3d at 1125. In light of the text of the

pertinent DOL regulations, we conclude that when an

employer seeks to establish that he has a legitimate reason to

deny an employee reinstatement, the burden of proof on that

issue rests with the employer. Thus, for example, if an

employer denies an employee reinstatement on the ground

that the employee cannot perform the essential functions of

the employee’s position, the burden of proof rests with the

employer, not the employee. The district court’s contrary

instruction to the jury was therefore erroneous.

[6] Further, as noted above, the FMLA requires that an

employer reinstate an employee after taking such leave, so

long as the employee would still be employed in the position

had she not taken FMLA leave. 29 U.S.C. § 2614(a)(1)(A),

(a)(3)(B). The text of § 2614(a)(3) does not allow an

employer to interfere with an employee’s right to reinstatement for “reasonable cause.” Moreover, the DOL regulations

interpreting the “limitations on an employer’s obligation to

reinstate an employee” include no reference to a “reasonable

cause” standard. See, e.g., 29 C.F.R. § 825.216. Here, the

court’s instruction required Sanders to prove that the City did

not have “reasonable cause” to deny her reinstatement. This

was error. The five elements of a prima facie right-toreinstatement claim, discussed above, only require an

employee to prove that she was entitled to FMLA benefits and

that “h[er] employer denied h[er] FMLA benefits to which

[s]he was entitled.” Burnett, 472 F.3d at 477. By adding a rea3676 SANDERS v. CITY OF NEWPORT
sonable cause requirement as an element of Sanders’s reinstatement claim, the court’s instruction permitted the jury to

assess the City’s overall response to Sanders’s complaints

rather than directing the jury to consider the specific reasons

under DOL regulations why the City refused to reinstate

Sanders to her former position after taking FMLA leave. This

approach is contrary to the FMLA and DOL regulatory

scheme discussed above. Thus, the court’s FMLA instruction

was erroneous because it required Sanders to disprove that the

City had reasonable cause not to reinstate her after taking

FMLA leave.

C. The District Court’s Erroneous Jury Instruction

was not Harmless

[7] “ ‘An error in instructing the jury in a civil case

requires reversal unless the error is more probably than not

harmless.’ ” Dang v. Cross, 422 F.3d 800, 811 (9th Cir. 2005)

(quoting Caballero v. City of Concord, 956 F.2d 204, 206

(9th Cir. 1992)). “We presume prejudice where civil trial

error is concerned and the burden shifts to the defendant to

demonstrate that it is more probable than not that the jury

would have reached the same verdict had it been properly

instructed.” Id. (internal citations and alterations omitted).

Because the City has not met its burden, we conclude that the

error was not harmless. 

[8] “[W]hen ‘the trial court erroneously add[s] an extra

element to [the plaintiff’s] burden of proof,’ it is ‘unlikely that

the error w[ill] be harmless.’ ” Clem v. Lomeli, 566 F.3d

1177, 1182 (9th Cir. 2009) (quoting Caballero, 956 F.2d at

207). Here, the district court not only read “reasonable cause”

into the FMLA and the statutory regulations, but also put the

burden on Sanders to disprove the existence of “reasonable

cause.” The district court’s misstatement of the law thus

added an extra element to Sanders’s burden of proof.

“Prejudice is also generally more likely than not if ‘nothing

about th[e jury’s] verdict indicates that the result would have

SANDERS v. CITY OF NEWPORT 3677
been the same without the error.’ ” Clem, 566 F.3d at 1182

(quoting Caballero, 956 F.2d at 207); see also Gambini, 486

F.3d at 1093 (“In reviewing a civil jury instruction for harmless error, the prevailing party is not entitled to have disputed

factual questions resolved in his favor because the jury’s verdict may have resulted from a misapprehension of law rather

than from factual determinations in favor of the prevailing

party.” (quoting Swinton v. Potomac Corp., 270 F.3d 794,

805-06 (9th Cir. 2001))). In Clem, the jury instructions failed

to properly explain the term “deliberately indifferent” when

setting out the elements of an Eighth Amendment violation

under 42 U.S.C. § 1983. Clem, 566 F.3d at 1183. Specifically,

the jury was erroneously instructed that the defendant needed

to “act” in order to find that he was deliberately indifferent,

even though defendant’s “failure to act” would also suffice.

Id. at 1181. We held that it was impossible to determine

whether the error was harmless because the jury was only

asked to answer the question—was the defendant deliberately

indifferent—to which the jury answered “No.” Id. at 1183. 

Similarly, as noted above, the verdict form here contained

the following question regarding Sanders’s FMLA claim:

“Did the plaintiff prove by a preponderance of the evidence

that the defendant, without reasonable cause, failed to reinstate her after she took family medical leave?” (Emphasis

added.) The jury’s answer to this question was “No.” The

judge did not give any instructions regarding the meaning of

“reasonable cause.” In light of the question the jury was asked

to answer, it is not clear whether the jury would have found

for or against Sanders if the jurors had not been instructed to

consider whether the City acted without “reasonable cause.”

The City additionally argues that any error in the FMLA

jury instruction was harmless because it had met its burden of

proof to demonstrate that Sanders was unable to perform the

essential functions of her job. The City contends that its evidence at trial showed that it refused to reinstate Sanders following her FMLA leave, “because it could not provide a safe

3678 SANDERS v. CITY OF NEWPORT
workplace for her in light of her physician’s requirements and

statements about plaintiff’s multiple chemical sensitivity.”

Although the City failed to assert any regulatory exception in

the district court, we construe its argument as implicitly

invoking this defense. The City thus argues that any error in

the jury instruction was harmless, because it satisfied its burden of proof for the exception to reinstatement set forth in 29

C.F.R. § 825.214(b). 

“Determining what functions are ‘essential’ to a particular

position is a question of fact.” Brumbalough v. Camelot Care

Ctrs., Inc., 427 F.3d 996, 1005 (6th Cir. 2005). Because an

employee’s inability to complete the essential functions of her

job is a legitimate reason to deny reinstatement, the DOL regulations list (and limit) the details that an employer may

require in a medical certification prior to reinstatement,

assuming the employer regularly requires such certification of

its employees after FMLA leave. 29 C.F.R. § 825.306; see

also 29 C.F.R. §§ 825.307, 825.310, 825.311. Therefore, we

consider the court’s jury instruction, the question posed in the

verdict form, and the evidence presented to the jury, to determine if the jury found that Sanders could not perform the

essential functions of her position. 

As discussed earlier, because the court improperly

instructed the jury on the issue of reasonable cause, the jury

instruction and verdict form are unhelpful in determining

whether the jury found that Sanders could perform the essential functions of her position. The evidentiary record is also

unhelpful because the City did not explicitly raise the regulatory exception, thus neither party had an opportunity to put

forth evidence as to whether Sanders could perform the essential functions of her position. Indeed, the City never even submitted any evidence describing the “essential functions” of

Sanders’s job. Thus, neither the jury’s verdict nor the evidentiary record permits us to determine whether the City carried

its burden to prove that it had a legitimate reason for failing

to reinstate Sanders. As we cannot determine if the City met

SANDERS v. CITY OF NEWPORT 3679
its burden of proof under 29 C.F.R. § 825.214(b), we cannot

hold that the erroneous jury instruction regarding “reasonable

cause” was harmless.

[9] In sum, the district court’s error in instructing the jury

was not harmless, because it added an unnecessary element to

Sanders’s burden of proving her FMLA reinstatement claim,

and it is impossible to determine from the jury’s verdict and

evidentiary record that the jury would have reached the same

result had it been properly instructed. 

D. The Erroneous FMLA Jury Instruction Undermines Any Determination of the Oregon State Law

Claim

The Oregon Family Leave Act, Or. Rev. Stat.

§§ 659A.150-186, is to “be construed to the extent possible in

a manner that is consistent with any similar provisions of the

federal Family and Medical Leave Act of 1993.” Or. Rev.

Stat. § 659A.186(2) (2009). Consistent with this legislative

declared intent, the Oregon courts have looked to federal law

when interpreting OFLA. See Yeager v. Providence Health

Sys. Or., 96 P.3d 862, 866 (Or. Ct. App. 2004); Centennial

Sch. Dist. No. 28J v. Or. Bureau of Labor & Indus., 10 P.3d

945, 951-52 (Or. Ct. App. 2000). Similar to the reinstatement

rights under FMLA, 29 U.S.C. § 2614(a)(1), OFLA also provides for reinstatement of an employee who has taken OFLA

leave. See Or. Rev. Stat. § 659A.171, see also Or. Admin. R.

§ 839-009-0270(1). In light of these similar statutory and regulatory provisions, the district court properly applied the same

legal standards under FMLA to Sanders’s OFLA claim.8 As

8The City argues that Sanders may not maintain a “failure to reinstate”

claim under OFLA. The district court, relying on Or. Rev. Stat. section

659A.171(1), Yeager, 196 P.3d 862, and Or. Admin. R. section 839-009-

0270, rejected that argument. Because we conclude that the district court’s

judgment on this claim must be reversed for the reasons explained in the

text, we need not address this issue. 

3680 SANDERS v. CITY OF NEWPORT
explained above, however, the district court misinterpreted

the FMLA when it required Sanders to prove that the City’s

failure to reinstate her was without reasonable cause.9

[10] In a case like this one, where legal claims tried by the

jury and equitable claims tried by the court are “based on the

same set of facts, the Seventh Amendment requires the trial

judge to follow the jury’s implicit or explicit factual determinations.” Miller v. Fairchild Indus., Inc., 885 F.2d 498, 507

(9th Cir. 1989). Because of the error in the court’s FMLA jury

instruction and verdict form, we cannot determine what factual findings the jury might have made with regard to Sanders’s FMLA claim. Because the jury was not properly

instructed, it is impossible to determine the factual basis for

the jury’s verdict and whether the district court violated the

Seventh Amendment in granting Sanders relief under OFLA.

Indeed, in explaining why it reached a different result on

Sanders’s OFLA claim, the district court relied on the erroneous “reasonable cause” standard that forms the basis for the

reversible error in the FMLA claim. Therefore, the district

court’s judgment for Sanders on her OFLA claim must be

vacated and reconsidered after retrial of Sanders’s FMLA

claim.

III. Conclusion

For all of the above reasons, we conclude that the district

court erred in its formulation of the FMLA jury instruction

and that this error was prejudicial. We thus vacate the judgment on the jury’s verdict and remand the case for a new trial.

Because the district court also used an incorrect legal standard

in evaluating Sanders’s OFLA claim, and the claim is dependent on facts found by the jury, we also vacate the district

court’s judgment in favor of Sanders, with instructions that

9Notably, the relevant OFLA provisions do not contain a “reasonable

cause” element. See Or. Rev. Stat. §§ 659A.171, 659A.183(2),

659A.186(2). 

SANDERS v. CITY OF NEWPORT 3681
the district court reconsider Sanders’s OFLA claim after the

retrial of the FMLA claim. Because Sanders is no longer the

prevailing party on her OFLA claim, an award of attorney’s

fees and costs is premature. We therefore vacate the order

granting attorney’s fees and costs to Sanders. 

VACATED and REMANDED. 

The parties shall bear their own costs on appeal.

3682 SANDERS v. CITY OF NEWPORT