FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JILL TRAXLER, 

No. 08-35641 Plaintiff-Appellant,

D.C. No.

v.  3:06-cv-01450-KI

MULTNOMAH COUNTY,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

September 2, 2009—Seattle, Washington

Filed February 26, 2010

Before: Michael Daly Hawkins, M. Margaret McKeown and

Jay S. Bybee, Circuit Judges.

Opinion by Judge McKeown

3153
COUNSEL

Daniel J. Snyder, Law Offices of Daniel Snyder, Portland

Oregon, for the plaintiff-appellant.

TRAXLER v. MULTNOMAH COUNTY 3155
Angela Sowle, County Attorney, and Jenny Morf, Assistant

County Attorney, for the defendant-appellee.

OPINION

McKEOWN, Circuit Judge: 

This case presents two issues concerning damages under

the Family Medical Leave Act of 1993 (“FMLA”). 29 U.S.C.

§§ 2601-2654 (2006). In an issue of first impression, we consider whether the court, rather than the jury, determines the

amount of the front pay award1 and whether the district

court’s calculation of that award was clearly erroneous. Second, we address whether the district court erred in denying

liquidated damages without making specific findings as to the

employer’s good faith conduct and reasonable belief that it

was not violating the statute. We conclude that under the

FMLA, front pay is an equitable remedy to be determined by

the court. We affirm the district court’s determination and calculation of the front pay award. We reverse and remand the

district court’s decision not to award liquidated damages.

Absent an articulated rationale to support this conclusion, we

cannot meaningfully review the challenge to liquidated damages.

BACKGROUND

Jill Traxler began working in the Multnomah County Sheriff’s Office (“the County”) in 1987 and was promoted to the

Human Resources unit in 1988. By 1998 she had become the

1Front pay is “money awarded for lost compensation during the period

between judgment and reinstatement or in lieu of reinstatement.” Pollard

v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001). “In cases

in which reinstatement is not viable because of continuing hostility

between the plaintiff and the employer or its workers . . . courts have

ordered front pay as a substitute for reinstatement.” Id.

3156 TRAXLER v. MULTNOMAH COUNTY
interim Personnel Unit Manager and later was promoted to

Human Resources Manager I. 

The FMLA entitles certain employees to “12 workweeks of

leave during any 12-month period” if the employee has a serious health condition, gives birth or adopts a son or daughter,

or needs to care for a “spouse, or a son, daughter, or parent

[who] has a serious health condition.” 29 U.S.C. § 2612(a)(1).

Beginning in 2002, Traxler took medical leave under the

FMLA, and again in 2005, she took leave due to a serious

physical health condition. During her employment, Traxler

never took more than the leave permitted under the FMLA. 

On June 13, 2005, the County notified Traxler that her

position would be eliminated effective July 1, 2005, and it had

a uniformed officer escort Traxler out of the office. She was

placed on paid administrative leave, and then transferred to a

lower paying position. Traxler continued to take leave under

the FMLA, and in September 2005, she received an unfavorable performance review in her new position. Traxler filed a

written response to the performance review, but to no avail.

The County terminated Traxler in late September 2005. 

Traxler filed suit under the FMLA and the Oregon counterpart. After a four-day trial, the jury found that the County had

taken adverse employment actions against Traxler in response

to her legitimate use of protected leave under the FMLA. The

jury awarded Traxler $250,000 in damages (back pay) up to

the time of trial and $1,551,000 in front pay. The court

declined to enter a judgment for liquidated damages.

The County filed a post-trial motion requesting judgment as

a matter of law or a new trial pursuant to Federal Rules of

Civil Procedure 50(b) and 59, arguing that the district court

erred in submitting the calculation of front pay to the jury and

requesting that the district court limit the amount of front pay

awarded to Traxler. The district court agreed it had erred in

allowing the jury to consider the amount of front pay because

TRAXLER v. MULTNOMAH COUNTY 3157
front pay is an equitable remedy that must be determined by

the court. The district court thus vacated the jury’s award of

front pay, made findings of fact as to the basis for front pay,

and awarded Traxler $267,000 in front pay. The district court

also ruled in the alternative that if it was proper for the jury

to calculate front pay, the jury’s award of $1,551,000 was

grossly excessive; the court denied the County’s motion for a

new trial, conditioned on Traxler’s acceptance of a remittitur

of $267,000. Traxler timely appealed the district court’s finding that front pay is an equitable remedy to be decided by the

court, the calculation of the front pay award, and the denial

of liquidated damages. 

ANALYSIS

I. FRONT PAY

A. FRONT PAY IS AN EQUITABLE REMEDY APPROPRIATELY

DETERMINED BY COURTS

The central question in this appeal is the characterization of

front pay under the FMLA—that is, whether it is a legal or an

equitable remedy. And, more precisely, even if it is an equitable remedy, should the amount be determined by the court or

a jury.2

On this issue of first impression in this circuit, we hold that

under the FMLA, front pay is an equitable remedy that must

be determined by the court, both as to the availability of the

remedy and the amount of any award. Our view accords with

the Fourth, Fifth and the Tenth Circuits, which have

2Traxler argues that the County waived the argument that front pay is

an equitable remedy by “fail[ing] to object to the determination of the

amount of front pay by the jury at the time of trial.” The County did not

waive this issue. The County raised the issue multiple times throughout

the proceedings, including in its motion for judgment as a matter of law

and request for new trial. This question was also the subject of explicit rulings by the district court. 

3158 TRAXLER v. MULTNOMAH COUNTY
addressed this issue under the FMLA. Downey v. Strain, 510

F.3d 534, 544 (5th Cir. 2007) (noting that “Front pay can only

be calculated through intelligent guesswork, and we recognize

its speculative character by according wide latitude in its

determination to the district courts.” (internal quotation marks

omitted)); Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298

F.3d 955, 964-66 (10th Cir. 2002) (holding that the court

decides propriety and amount of front pay award, but in making the award, the court must accept the jury’s factual findings); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 307 & n.3

(4th Cir. 1998) (holding that “the district court erred in submitting the issue of front pay to the jury . . . . On remand, the

district court should determine . . . whether front pay should

be awarded and, if so, in what amount.”). The approach in

these cases follows the general recognition that front pay is

best understood as a substitute for the equitable remedy of

reinstatement, and thus, is appropriately determined by the

court. Cline, 144 F.3d at 307 (“[F]ront pay, as an alternative

or complement to reinstatement, is an equitable remedy best

determined by the district court rather than the jury.”). Only

the Sixth Circuit differs, holding that the district court determines the propriety of awarding front pay, but that the jury

decides the actual amount of the award. Arban v. West Publ’g

Corp., 345 F.3d 390, 405-06 (6th Cir. 2003).

[1] Our analysis begins with the statute itself. The FMLA

does not explicitly grant plaintiffs the right to front pay; any

front pay awards must fall within the section on equitable

relief. See 29 U.S.C. § 2617. The FMLA provision governing

an employee’s remedy against an employer is divided into

two subsections. The first subsection allows “damages” for

past costs including, among other things, “wages, salary,

employment benefits, or other compensation denied or lost.”

Id. (a)(1)(A)(i)(I). That same subsection also covers non-wage

actual monetary losses, interest, and liquidated damages. The

second subsection addresses prospective relief, allowing “for

such equitable relief as may be appropriate, including

employment, reinstatement, and promotion.” Id. (a)(1)(B).

TRAXLER v. MULTNOMAH COUNTY 3159
Front pay is not included in the enumerated damages under

the first subsection. § 2617(a)(1)(A). Thus, the court’s power

under the FMLA to award front pay, as an alternative to reinstatement, is derived solely from the statutory provision permitting the court to award “such equitable relief as may be

appropriate.” § 2617(a)(1)(B). 

[2] The characterization of front pay as an equitable remedy is consistent with the general nature of front pay in the

context of other employment-related statutes. Although pure

money damages are “ ‘the traditional form of relief offered in

the courts of law,’ ” Smith v. Barton, 914 F.2d 1330, 1337

(9th Cir. 1990) (quoting Curtis v. Loether, 415 U.S. 189, 196

(1974)), an award of monetary damages may constitute equitable relief if it is “ ‘incidental to or intertwined with injunctive relief.’ ” Chauffeurs Local No. 391 v. Terry, 494 U.S.

558, 571 (1990) (quoting Tull v. United States, 481 U.S. 412,

424 (1987)). The leading employment case on this point is

Pollard v. E. I. du Pont de Nemours & Co., a Title VII case

in which the Supreme Court distinguished front pay from

compensatory damages. 532 U.S. 843 (2001). The Court held

that “[i]n cases in which reinstatement is not viable . . . courts

have ordered front pay as a substitute for reinstatement.” Id.

at 846. In other words, “ ‘[a] front pay . . . award is the monetary equivalent of the equitable remedy of reinstatement.’ ”

Id. at 853 n.3 (quoting Blum v. Witco Chem. Corp., 829 F.2d

367, 383 (3d Cir. 1987)). As a practical matter, front pay is

awarded at the court’s discretion only if the court determines

that reinstatement is inappropriate, such as where no position

is available or the employer-employee relationship has been

so damaged by animosity that reinstatement is impracticable.

Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d

Cir. 1984). 

[3] Recognizing that front pay is an equitable remedy, it

makes little sense to say that the availability of front pay is a

judicial determination and the amount a jury determination.

The statute does not support such a result. Splitting the rem3160 TRAXLER v. MULTNOMAH COUNTY
edy into an equitable and a legal component is a false dichotomy. This is a classic case where a monetary award is

inextricably linked with the equitable determination regarding

reinstatement. As a proxy for reinstatement, front pay is an

equitable award within the purview of the court, not the jury.

To begin, the determination whether reinstatement is feasible, either immediately or in the future, is a balance of equitable concerns. Although there is a strong preference in favor

of reinstatement, sometimes it simply isn’t practical. Downey,

510 F.3d at 544 (noting that under the FMLA, “reinstatement

is the preferred equitable remedy” but when not feasible, an

award of front pay may be considered). Deciding what

amount would compensate for the inability to get a job back

is not a form of linear fact-finding appropriately left to the

jury. Just as reinstatement invokes equitable factors, so does

front pay as a proxy. Judicial discretion is at the heart of the

decision. In a case under the Age Discrimination in Employment Act (“ADEA”), the Fourth Circuit observed the following: 

Because of the potential for windfall . . .[the use of

front pay] must be tempered. It can be awarded to

complement a deferred order of reinstatement or to

bridge a time when the court concludes the plaintiff

is reasonably likely to obtain other employment. If a

plaintiff is close to retirement, front pay may be the

only practical approach. The infinite variety of factual circumstances that can be anticipated do not render any remedy of front pay susceptible to legal

standards for awarding damages. 

Duke v. Uniroyal Inc., 928 F.2d 1413, 1424 (4th Cir. 1991).

Traxler stakes her position that the amount of front pay is

a legal remedy on a single line in our opinion in Cassino v.

Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir.

1987). In Cassino, an ADEA case, we considered whether a

TRAXLER v. MULTNOMAH COUNTY 3161
trial court is required to instruct the jury “that a finding of

hostility [between the employer and the employee is] a prerequisite to a front pay award.” Id. at 1347. We concluded that

the jury does not need to be instructed on hostility because it

is the district court’s duty to determine whether there is hostility between the parties. Id. The court then went on to remark

that “[i]f the court concludes that reinstatement is not feasible,

the jury then decides the amount of the front pay award.” Id.

This observation—plainly dicta—is not inconsistent with our

holding that front pay is an equitable remedy. A trial court,

sitting in equity, may nevertheless employ an advisory jury.

The ultimate decision, however, rests with the court. See Lutz

v. Glendale Union High Sch., 403 F.3d 1061, 1069 (9th Cir.

2005) (“there is no right to have a jury determine the appropriate amount of back pay . . . . Instead, back pay remains an

equitable remedy to be awarded by the district court in its discretion.”); see also Donlin v. Philips Lighting N. Am. Corp.,

581 F.3d 73, 78 n.1 (3d Cir. 2009) (“[t]he jury’s role was only

advisory on the issue of damages because back pay and front

pay are equitable remedies to be determined by the court.”).

Picking up on a discussion in Newhouse v. McCormick &

Co., 110 F.3d 635, 642-43 (8th Cir. 1997), the district court

here noted that there is a split in the circuits in ADEA cases

on whether the judge or the jury should determine the amount

of front pay award. Nearly all of the circuits that have considered front pay under the ADEA treat the remedy as wholly

equitable, leaving both the availability and amount of front

pay to the court. See e.g., id. at 643; Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1426-27 (10th Cir. 1991); Duke,

928 F.2d at 1424; Fortino v. Quasar Co., 950 F.2d 389, 398

(7th Cir. 1991); Deloach v. Delchamps, Inc., 897 F.2d 815,

823 & n.4, 824 (5th Cir. 1990); Ramsey v. Chrysler First,

Inc., 861 F.2d 1541, 1545 (11th Cir. 1988); and Dominic v.

Consol. Edison Co. of N.Y., Inc., 822 F.2d 1249, 1257-58 (2d

Cir. 1987). The Third Circuit can now be added to the list.

Donlin, 581 F.3d at 78 n.1. Not surprisingly, only one circuit

is squarely in opposition—the Sixth Circuit. Roush v. KFC

3162 TRAXLER v. MULTNOMAH COUNTY
Nat’l Mgmt. Co., 10 F.3d 392, 398 (6th Cir. 1993) (holding

that the initial “determination of the propriety of an award of

front pay is a matter for the court,” but the “amount of an

award of front pay is a jury question”). The situation in the

First Circuit is unclear.3

Cassino must also be distinguished based on the difference

in the language of the statutes providing the front pay remedy.

The ADEA, unlike the FMLA, is ambiguous as to whether

front pay is sanctioned as an equitable or a legal remedy. The

ADEA allows a court to grant “such legal or equitable relief

as will effectuate the purposes of this chapter.” See 29 U.S.C.

§ 626(c)(1) (emphasis added). The statute goes on to provide

that “a person shall be entitled to a trial by jury of any issue

of fact in any such action for recovery of amounts owing as

a result of a violation of this chapter, regardless of whether

equitable relief is sought by any party in such action.” Id.

§ 626(c)(2). In contrast, the remedies section in the FMLA

enumerates in detail the types of legal damages permitted, and

because front pay is not one of the types of legal damages

enumerated, any award of front pay must be grounded in the

court’s power to grant “such equitable relief as may be appropriate.” 29 U.S.C. § 2617(a)(1)(B). In addition to this significant statutory difference, notably, the FMLA does not include

any reference to “trial by jury of any issue of fact.” 29 U.S.C.

§ 626(c)(2) (ADEA).

In sum, under the FMLA the equitable award of front pay,

including the amount, rests solely with the court, not the jury.

The passing reference to the contrary in Cassino, which

3Compare Chambers v. City of Calais, 187 F.3d 621, *3 (1st Cir. 1998)

(per curiam) (the ADEA allows for an award of front pay, which is equitable relief to be calculated by the judge) with Kelley v. Airborne Freight

Corp., 140 F.3d 335, 354 (1st Cir. 1998) (noting that front pay is an equitable remedy awarded by the court, but because under Massachusetts state

law, the jury awards front pay, the court submitted the determination of

amount of the front pay award to the jury). 

TRAXLER v. MULTNOMAH COUNTY 3163
involved the ADEA rather than the FMLA, does not change

our conclusion.

B. THE DISTRICT COURT DID NOT ERR IN ITS CALCULATION

OF FRONT PAY

The district court’s determination of the amount of front

pay is supported by both the court’s reasoning and substantial

evidence in the record. Although reasonable minds might disagree regarding the amount, the district court did not abuse its

discretion when it determined that the front pay award should

be $267,000.4

The district court rejected as unreasonable Traxler’s premise that she would be unable to find a job with similar pay and

benefits for the rest of her life, noting that she “is young and

has good job skills,” but acknowledging that there may be

some disparity in her earning capacity for a period of time.

Her evidence lacked “specifics sufficient to satisfy the court.”

Traxler’s expert witness did not fare well in the district

court’s analysis: “Although there is no dispute about [the witness’s] calculations, his assumptions are questionable and

appear to be based on a theoretical worst case without any

evidentiary support.” Specifically, the district court did not

accept the expert’s conclusion that Traxler would work for an

additional 16.64 years instead of 12.75 years—the national

average for a woman her age. Although the expert assumed

that Traxler would receive merit based pay increases every

year, there was evidence that Traxler had reached the top of

her pay grade, and yearly budget reductions made further

4We review for an abuse of discretion the district court’s determination

of whether to award equitable relief. Park v. Anaheim Union High Sch.

Dist., 444 F.3d 1149, 1156 (9th Cir. 2006). The district court’s award of

damages also is reviewed for an abuse of discretion, McLean v. Runyon,

222 F.3d 1150, 1155 (9th Cir. 2000), but we review for clear error the factual findings related to the front pay award. Gotthardt v. National R.R.

Passenger Corp., 191 F.3d 1148, 1155 (9th Cir. 1999). 

3164 TRAXLER v. MULTNOMAH COUNTY
increases unlikely. Consequently, the district court found that

it was unreasonable to assume that Traxler would be unable

to find a comparable position “for the rest of Traxler’s working life.” 

The district court was mistaken when it stated that “Traxler

gave no testimony about her efforts to find a full-time job

more equivalent to her work at the County.”

5

 Traxler offered

testimony regarding her job search activities, although it was

general in nature. Nevertheless, there remains ample additional support for the district court’s calculation of the front

pay award. 

[4] The district court also noted that Traxler’s attorney

asked the jury for a sum between $670,746 and $1,163,514,

even less than the jury awarded. The court was mindful of the

jury’s verdict but emphasized that there was “little doubt” that

the County’s treatment of Traxler influenced the jury’s decision. In a thoughtful opinion and order, the district court considered all of the evidence and awarded front pay of

$267,000, which represents almost three years of salary and

benefits or nearly four years of salary. The district court’s

findings were not clearly erroneous and the court did not

abuse its discretion with respect to the front pay award.

II. LIQUIDATED DAMAGES

[5] The FMLA contains a “liquidated damages” provision,

subjecting an employer who violates the Act to double damages unless the employer can prove that its employment

action was taken in “good faith” and that it had “reasonable

grounds for believing that [its action] was not a violation.” 29

U.S.C. § 2617(a)(1)(A)(iii). 

5The district court may have been alluding to the fact that Traxler’s testimony pertained to her attempt to find “any kind of work”—not necessarily a “full-time job more equivalent to her work at the County.” 

TRAXLER v. MULTNOMAH COUNTY 3165
Traxler requested liquidated damages for the County’s violation of the FMLA. The district court denied the request.

Traxler appeals the district court’s decision, arguing that the

district court abused its discretion by declining to award liquidated damages without specific findings that the County’s

violation of the FMLA was in good faith and that the County

reasonably believed that its conduct was not in violation of

the FMLA.

[6] Here, the district court never made an explicit finding

of good faith or reasonable belief, nor did the district court

explain its reasoning. The transcript reflects the following

limited exchange regarding liquidated damages:

MR. SNYDER: Your Honor, excuse me. I think the

only other issue, then, would be . . . whether or not

the Court is going to make an award of liquidated

damages.

THE COURT: An award of what?

MR. SNYDER: Liquidated damages, Your Honor.

THE COURT: No, I’m not.

Unfortunately, neither party inquired as to the rationale or

basis for this decision. The County argues that because Traxler did not request specific findings related to liquidated damages, she did not preserve the issue for appeal. Without doubt,

Traxler could have saved the parties, the district court, and us

considerable resources had she asked the district court to set

out the factual and legal basis for denial of liquidated damages. Nonetheless, even if Traxler is deemed to have waived

a challenge as to the specificity of findings, she did not waive

her general challenge of the district court’s failure to award

liquidated damages. 

[7] As an appellate court, we review the decision to deny

liquidated damages under the abuse of discretion standard.

3166 TRAXLER v. MULTNOMAH COUNTY
Arban, 345 F.3d at 408. To do so, however, we must be able

to ascertain how the district court exercised its discretion. In

Blue Cross & Blue Shield of Alabama v. Unity Outpatient

Surgery Center, Inc., we explained the importance of having

a reasoned decision as the basis for appellate review: 

[W]e must examine the adequacy of the rationale

behind the district court’s decision rather than simply reach the conclusion that seems best to us. . . .

We cannot review the district court’s exercise of its

discretion in weighing [the employer’s proof of good

faith and reasonable belief that it was not violating

the statute] unless we know that it has done so and

why it reached its result. 

. . . [By failing to give] any indication of the basis

for its decision . . . the district court left us with no

reasoned decision to review, and no basis upon

which to evaluate its exercise of discretion, thereby

making it impossible for us to do our judicial duty.

Where, as here, a district court does not explain its

reasoning, we must remand to that court to reconsider its decision and to set forth its reasons for

whatever decision it reaches, so that we can properly

exercise our powers of review. 

490 F.3d 718, 724-25 (9th Cir. 2007) (citations omitted). Put

another way, “meaningful appellate review for abuse of discretion is foreclosed when the district court fails to articulate

its reasoning.” United Nat’l Ins. Co. v. R & D Latex Corp.,

141 F.3d 916, 919 (9th Cir. 1998).

It is particularly important for the district court to provide

a rationale for its decision when effectuating a congressional

mandate that the decision reflect certain enumerated factors.

In a case construing the Speedy Trial Act, the Supreme Court

stated:

TRAXLER v. MULTNOMAH COUNTY 3167
Where, as here, Congress has declared that a decision will be governed by consideration of particular

factors, a district court must carefully consider those

factors as applied to the particular case and, whatever its decision, clearly articulate their effect in

order to permit meaningful appellate review. Only

then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy,

thereby failing to act within the limits prescribed by

Congress. 

United States v. Taylor, 487 U.S. 326, 336-37 (1988) (emphasis added).

[8] The FMLA is unambiguous that once it is determined

that an employer violated the statute, liquidated damages will

be awarded unless the employer proves both “good faith” and

“reasonable grounds for believing that [its action] was not a

violation” of the FMLA. 29 U.S.C. § 2617(a)(1)(A)(iii). We

are unable to “ascertain whether [the] district court has

ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy,” i.e., the factors of “good faith”

and “reasonable belief.” The record does not permit us to

infer a rationale. We therefore remand to the district court for

an explanation, and findings if appropriate, supporting the

denial of the award. 

Finally, we reject Traxler’s additional arguments on the

issue of liquidated damages. Traxler posits that the district

court’s finding that front pay is appropriate is incompatible

with the district court’s refusal to award liquidated damages.

Front pay, however, is the appropriate substitute when, as

here, “reinstatement is not practical due to friction caused by

Traxler’s use of intermittent family leave.” It is possible for

the employment situation to create hostility even if the

employer violated the FMLA in good faith. These two principles are not incompatible. Traxler also argues that a finding

3168 TRAXLER v. MULTNOMAH COUNTY
of good faith is irreconcilable with the jury’s finding that the

County violated the FMLA. This argument simply ignores the

statute, which puts the burden on the employer to avoid liquidated damages but does not assume that liability under the

FMLA and denial of liquidated damages are mutually exclusive. Indeed, an employer may violate the FMLA through acts

that are taken in good faith. See 29 U.S.C. § 2617(a)(1)(A).

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED for supplemental findings and an explanation

on liquidated damages. Each party shall bear its own costs on

appeal. 

TRAXLER v. MULTNOMAH COUNTY 3169