### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 20674

DARLENE ALEXANDER , Plaintiff

− Appellee ,

versus SERVISAIR, LLC , Defendant

− Appellant

.

Appeal from the United States District Court for the Southern District of Texas No. 4:12

- CV

- 817

Before REAVLEY , SMITH , and SOUTHWICK , Circuit Judges

. PER CURIAM : *

Darlene Alexander, a former employee of Servisair, LLC (“Servisair”),
sued it for violations of the Family and Medical Leave Act (“FMLA”) and the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the lim ited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 10, 2014 Lyle W. Cayce Clerk Case: 13-20674 Document: 00512864257 Page: 1 Date Filed: 12/10/2014No. 13

- 20674 Fair Labor Standards Act (“FLSA”). The jury found that Servisair had violated Alexander’s FMLA rights and awa rded her one dollar , which t he district court increased to $74,008 and awarded attorney’s fees. Servisair appeals the increase, the fees, and the jury instructions. Because the judgment included improper additur , we affirm in part and vacat e and remand in part for rein

state ment of the jury award and recalculation of the fees.

I. On May 9, 2011, Alexander felt sick and went home from work. She called her manager and left a message stating that she was ill and would not
be returning that day. She stayed home the next two days, leaving a voicemail for her manager each day. On May 12, Alexander’s supervisor Sandra Rayo called Alexander while
Alexander was waiting to see a doctor. The content of the conversation is con

tested : Alexander present ed evidence that she gave notice to her employer that she would be taking medical leave ; Servisair pre senting evidence that no such notice was given

. Alexander’s doctor diagnosed her with an anxiety disorder and recom

mended that she take time off f rom work. On May 13, Alexander request ed FMLA leave from the Reed Group, which was responsible for administering
Servis air’s FMLA policy. The parties dispute whether Alexander’s supervisors were aware that she had requested FMLA leave. On that same day, Alexander stopp ed calling in daily to notify Servisair that she was sick and would be
absent. On May 18, Alexander’s supervisors terminated her for the stated reason that she had violated a company policy requiring employees to call in before missing work. The parties d isputed the policy and its applica bil ity to employ

ees waiting to be approved for FMLA leave. Servisair presented evidence that 2 Case: 13-20674 Document: 00512864257 Page: 2 Date Filed: 12/10/2014No. 13

- 20674 the punishment for two consecutive no

- call/no

- show d ays was termination. On June 6, the Reed Group notified Alexander that i t had approved her for FMLA
leave retroactive to May 10.

II. Alexander sued Servisair, claiming it had retaliated against her for exercising her rights under the FMLA, 1 interfered with her rights under the FMLA, 2 and violated the FLSA. The jury found Servisair not liable on the
FLSA claims and the FMLA retaliation claim but found it liable for inter fering with Alexander’s rights under the FMLA and awarded one dollar in damages. On a motion by Alexander, the district court inc reased the award to $37,00 4, the undisputed amount of wages lost by Servisair during her period of unemployment. Because the jury found that Servisair had acted in bad faith, the court doubled the damages to $74,008 under the liquidated

- damages provision , 29 U.S.C. § 2617(a)(1)(A)(iii)

. The court also awarded Alex ander $91,728.75 in attorney’s fees.
Servisair contends that the district court engaged in unconstitutional
addi tur when it increas ed the jury award. Servisair also claims that Alexander
was not entit led to attorney’s fees because she was not the prevailing party. Finally, Servisair faults the exclusion of its proposed jury instructions. We agree that the re was unconstitutional additur but disagree that Alexander was not the prevailing party and that the jury instructions were insufficient.

1 “ It shall be unlawful for any employer to discharge or in any other manner dis cr imin

ate against any individual for opposing any practice made unlawful by this subchapter. ” 29 U.S.C. § 2615(a)(2).

2 “ It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. ” 29 U.S.C. § 2615(a)(1). 3 Case: 13-20674 Document: 00512864257 Page: 3 Date Filed: 12/10/2014No. 13

- 20674
III. Although t he rule against additur prohibits a court from increasing the amount of damages awarded by a jury , Dimick v. Schiedt , 293 U.S. 474, 482 (1935) , t here is an exception : If the jury has determined liability and “there is no valid dispute as to the amount of damages[,]” the court can increase the
award to th e undisputed amount without violating the prohibition on additur. 3 The district court concluded that the statute entitled Alexander to her lost sal

ary between her termination by Servisair and he r being hi red in a new job and that such damages were not discretionary. Because Servisair had not disputed Alex an der’s evidence showing that she had lost $37,004 in salary from her ter

min a tion, the court concluded that the amount of damages was not in dis pute and increased the base damages to $37,004. 4 Servisair contends that the amount of damages was in dispute because the jury could have found that Servisair’ s interference did not cause Alexan

de r’ s damages. We agree. The statutory text and caselaw plainly require a causal link between the interfering activity and the claimed damages , and Servisair presented evidence on causation as part of its defense

. The FMLA’s damages provision makes Servi s air liable only for those “wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.” 29 U.S.C. § 2617(a) (1)(A)(iii)

. The remedy for an interference claim “is tailored to the harm suffered,” and the remedial statute “provides no relief unless the employee has been prejudiced

3 Moreau v. Oppenheim , 663 F.2d 1300, 1311 (5th Cir. Dec. 1981) (quoting Decato v. Trav elers Ins. Co. , 379 F.2d 796, 798 (1st Cir. 1967) ) ; see also Roman v. W. Mfg., Inc. , 691 F.3d 686, 702 (5th Cir. 2012) (applying Moreau to allow an increase of a jury’s award of past medical expenses to the uncontested amount).

4 The district court doubled these damages to $74,008 because the jury found that Ser visair had acted in bad faith. The FMLA provides for liquidated damages equal to the dam ages and interest unless the employer acted in good faith. 29 U.S.C. § 2617(a)(1)(A)(iii). That finding and doubling are not at issue in this appeal. 4 Case: 13-20674 Document: 00512864257 Page: 4 Date Filed: 12/10/2014No. 13

- 20674 by the violation.” Ragsdale v. Wolverine World Wide, Inc. , 535 U.S. 81, 89 (2002). This was included in the jury instructions: “If you find that Defendant violated the FMLA, then you must determine whether Defendant has caused Plaintiff damages and, if so, you must deter mine the amount, if any, of those damages.” And Question 3, telling the jury to enter the amount of damages if
it found a viola tion, instructed it to skip the next question about bad faith if i t answered “$0.” Because the jury was presented with evidence that could lead
it reason a bly to conclude that Alexander’s lost wages were the result of her vio

l ating a no

- ca ll/no

- show policy and not the resul t of any inter ference, the amount of damages was subject to a valid dispute and was not eligible to be increased by the identified additur exception. The law requires a causal link between the employer’s interference and the claimed damages. Not presented here is whether a jury would err if it were to find liability for i nterference without any damages. 5 Likewise, we need not
decide whether nominal damages are available under the FMLA. 6 Causation
is an issue entrusted to the jury , and we have no challenge to t he sufficiency of
the evidence

.

5 The Supreme Court in Ragsdale , though not ruling on this question, distinguished between the requirements of an FMLA claim (located at § 2615) an d the necessity of prejudice before damages can be available under § 2617. See Ragsdale , 535 U.S. at 89. P rejudice is a
nec essary element of an FMLA interference claim

. See Cuellar v. Keppel Amfels, L.L.C. , 731 F.3d 342, 347 (5th Cir. 2013) (“To succeed on [an interference] claim, [the plaintiff] must at least show that [the defendant] interfered with, restrained, or d enied her exercise or attemp t to exercise FMLA rights, and that the violation prejudiced her.”). Regardless, the jury did not awar d zero dollars.

6 Several courts have held that nominal damages are unavailable under the FMLA. See Walker v. United Parcel Serv

. , Inc. , 240 F.3d 1268, 1278 (10th Cir. 2001 ); Montgom ery v. Maryland , 72 F. App’x 17, 19 (4th Cir. 2003); see also Franzen v. Ellis Corp. , 543 F.3d 420, 426 n.6 (7th Cir. 2008) (“ [W] e need not determin e whether nominal damages other wise are available under the FMLA.”)

. Though Alexander’s re ply brief contends that nominal dam

ages are not available under the FMLA, the i ssue is no t properly before us, and e ven if nom

inal damages are unavailable, that does not mean that the uncontested amount of damages was $37,004. 5 Case: 13-20674 Document: 00512864257 Page: 5 Date Filed: 12/10/2014No. 13

- 20674
IV. The statute allows attorney’s fees “in addition to any judgment awarded to the plaintiff.” 29 U.S.C. § 2617(a)(3)

. Servi sair contends that damages of
one dollar are insufficien t to make Alexander the prevailing party. That notion
is groundless : E ven an award of nominal damages is sufficient to render the plaintiff the prevailing party. Farrar v. Hobby , 506 U.S. 103, 112 (1992).
Like the statute in Farrar , however, the FMLA at torney’s

- fees provision allows only “a reasonable attorney’s fee.” 29 U.S.C. § 2617(a)(3)

. The reason

able ness of a fee is determined in part by the degree of the plaintiff’s success. 7 “When a plaintiff recovers only nominal damages because of his fail ure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Farrar , 506 U.S. at 115. The district court made its fee
cal cul ation only after increasing the amount of damages from one dollar ; on remand, i t should recalculate fees in light of the reinstated award and fees
incurred in defending that award on appeal

.

V. Servisair contends that the district court’s decision not to submit its pro

posed jury instructions p rovides grounds for a new tria l. 8 To succeed in its challenge to the exclusion of a proposed instruction, Servisair must show four things

. First, it must have preserved its objection. Taita Chem. Co. v. Westlake Styrene, LP , 351 F.3d 663, 667 (5th Cir. 2003). Second, it must show t hat “viewing the charge as a whole, the charge creates ‘substantial and

7 See Farrar , 506 U.S. at 115

– 16; Hensley v. Eckerhart , 461 U.S. 424, 436

– 37 (1983).

8 Servisair asks for reinstatement of the original jury award to remedy the claimed error in jury instruction. W e review this issue to see whether a new trial is warranted. See Aero Int ’l , Inc. v. U.S. Fire Ins. Co. , 713 F.3d 1106, 1113 (5th Cir. 1983) (“ A new trial is the

a ppropriate remedy for prejudicial errors in jury instructions. ”). 6 Case: 13-20674 Document: 00512864257 Page: 6 Date Filed: 12/10/2014No. 13

- 20674 ineradicable doubts whether the jury has been properly guided in its
deliberations.’” Id. (quoting FDIC v. Mijalis , 15 F.3d 1314, 1318 (5th Cir. 1994)). Third, even if the charge was erroneous, we will not reverse “if the error ‘could not have affected the outcome of the case.’” Id. (quoting Mijalis , 15 F.3d at 1318)). Fourth, Servisair must show “that the proposed instruction offered to the dis trict court correctly stated the law.” Id. Servisair has not shown that the charge, viewed as a whole, created seri

ous doubts whether the jury was properly guided. Servisair does not iden tify an erroneous statement of the law in the instructions. At most, it contends
that the omissio n of its causation argument led the jury to confusion. As dis

cussed above, the instructions and the verdict sheet told the jury that i t needed

to consider causation. Servisair cannot demon strate error merely by showing
that the instructions could have given more emphasis to a party’s stronger

argu ments. A court “has discretion as to the substance and form of jury charges as long as the jury is not misled and under stands the issues.” Frei

manis v. Sea

- Land Serv. , Inc. , 654 F.2d 1155, 1163 (5th Cir. U nit A Sept. 1981). As evidence of insufficient instruction, Servisair points to the jury’s note asking about firing FMLA applicants before they are approved for leave

. The
note does not support Servisair’s contention

. The question was unrelated to causation, asking only the technical question whether an employee has an
inter ference claim for a termination that occurs before FMLA leave is approved. Servi sair has not shown that the instructions failed to answer that question. Even if Servisair coul d show that the question gave insufficient guidance regarding when an FMLA entitlement accrues , its proposed instruc

tions are unrelated to that question, instead bearing on the requirement that

em ployees follow workplace policy. Because the jury was presented with a dispute as to the damages caused by Servisair’s interfering behavior, the decision to increase the award does not 7 Case: 13-20674 Document: 00512864257 Page: 7 Date Filed: 12/10/2014No. 13

- 20674 qualify for the identified additur exception. The damages award is VACATED
and REMANDED with direc tion to reinstate the jury award

. Even with an award of one dollar, 9 however, Alexander was the prevailing party, and the
dis trict court should calculate the appropriate amount of attor ney’ s fees on
remand. Servisair establishes no error in the jury instructions , so the finding of liability is AFFIRMED

.

9 This appeal presents no challenge to the propriety of doubling the verdict to account for Servisair’s bad faith, so the district court remains free to double th at award in accordance with 29 U.S.C. § 2617(a)(1)( A)(iii) if appropriate. 8 Case: 13-20674 Document: 00512864257 Page: 8 Date Filed: 12/10/2014