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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 98-1002     <br> <br>                          DAVID WATKINS, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                      J&S OIL COMPANY, INC., <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>No. 98-1003     <br> <br>                          DAVID WATKINS, <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                      J&S OIL COMPANY, INC., <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>           [Hon. Morton A. Brody, U.S. District Judge] <br>         [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>Wellford, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>     Joseph J. Hahn, with whom Kate S. Debevoise, Glenn Israel and <br>Bernstein, Shur, Sawyer & Nelson were on brief, for J&S Oil <br>Company, Inc. <br>     Cynthia L. Amara and New England Legal Foundation on brief for <br>the Maine Chamber and Business Alliance and the New England Legal <br>Foundation, amici curiae. <br>     Francis M. Jackson, with whom Jackson & MacNichol was on <br>brief, for David Watkins. <br> <br> <br>                       ____________________ <br>                       December 30, 1998 <br> <br>                       ____________________

          WELLFORD, Senior Circuit Judge.  Plaintiff David Watkins <br>was employed as a gas station manager for defendant J&S Oil Co., <br>Inc. ("J&S").  In August of 1994, he suffered a heart attack and <br>subsequently had open heart surgery.  After he had been home on <br>leave for about two weeks recuperating from surgery, J&S called <br>Watkins, asked him whether he intended to return to work, and <br>informed him that he had been replaced in his position as station <br>manager.  After Watkins had completed the leave, claimed under the <br>Family and Medical Leave Act ("FMLA"), 29 U.S.C.  2601, et seq., <br>he did not return to work for J&S in any capacity.  Watkins sued <br>J&S pursuant to the FMLA and also the Americans with Disabilities <br>Act ("ADA"), 42 U.S.C.  12101, et seq., as well as under state <br>law for infliction of emotional distress.  The district court <br>granted J&S's motion for summary judgment on both the ADA and the <br>state law claims, but denied the motion with respect to Watkins's <br>FMLA claim.  The FMLA claim was tried to a jury, which found in <br>favor of Watkins.  J&S now appeals the district court's denial of <br>its motion for summary judgment and its motion to vacate that <br>judgment.  Watkins appeals the district court's granting of J&S's <br>motion for summary judgment on the ADA and state law claims. <br>          At all pertinent times, J&S operated three gas stations <br>in Maine.  J&S hired Watkins in 1992 as a gas attendant at its <br>Farmingdale station, although Watkins had informed J&S that he had <br>previously experienced a heart attack.  In August of 1993, J&S <br>promoted Watkins to station manager.  During July of 1994, however, <br>Watkins had another heart attack which caused him to be out of work <br>for about five weeks.  Despite the second heart attack, he returned <br>to work with no restrictions.  On September 17, 1994, Watkins <br>suffered still another heart attack and subsequently underwent <br>surgery for his condition. <br>     On October 3, 1994, while Watkins was on leave <br>recuperating from surgery, the Human Resources Officer for J&S, <br>Wade Look, called Watkins regarding whether and when Watkins <br>intended to return to work.  Watkins testified as follows about <br>that conversation (in part): <br>          Q.  Okay.  So he asked you, are you <br>          planning to return to J&S Oil.  What did <br>          you say to him? <br> <br>          WATKINS:  Do I still have a position as <br>          store manager. <br> <br>          Q.  Okay.  And what was his response? <br> <br>          WATKINS:  No, you don't. <br> <br>          Q.  Okay.  Then what. <br> <br>          WATKINS:  He said, you have been replaced. <br> <br>          Q.  Okay.  As store manager? <br> <br>          WATKINS:  Yes, sir. <br> <br>          Q.  All right.  So still you have the <br>          question hanging, do you plan to return to <br>          J&S.  What was your answer to that? <br> <br>          WATKINS:  I asked him again if my job as <br>          store manager was available. <br> <br>          Q.  Okay.  And he said? <br> <br>          WATKINS:  No. <br> <br>          Q.  So what did you say? <br> <br>          WATKINS:  I asked him what he expected me <br>          to do at this point in time as far as -- <br>          as work, and he said that in order to <br>          return that he was not going to accept a <br>          doctor's note, that they would only speak <br>          to the doctor personally, and that would <br>          be the only way they would let me return. <br> <br>At the time of that conversation, Watkins did not, in fact, know <br>when he would physically be able to return to work. <br>     Later in October, Watkins was examined by his doctor, but <br>he could not recall what the doctor had told him regarding his <br>ability to return to work.  About a month after the third attack, <br>Look again called Watkins to ask how he was feeling and whether he <br>intended to return to J&S.  Watkins asked again whether his <br>position as store manager was available, and Look indicated that it <br>was not, and Watkins testified as to the following conversation: <br>          Q.  Did you ask him what jobs there were <br>          available for you at J&S? <br> <br>          WATKINS:  No. <br> <br>          Q.  All right.  Did he tell you what jobs <br>          were available to you at J&S? <br> <br>          WATKINS:  He mentioned that there would be <br>          an office job that I could bid on but was <br>          not a guarantee that I would get the job. <br> <br>          Q.  And what was that job? <br> <br>          WATKINS:  I have no idea. <br> <br>          Q.  Did that interest you at all? <br> <br>          WATKINS:  Yes. <br> <br>          Q.  So did you ask him what the job was? <br> <br>          WATKINS:  No. <br> <br>          Q.  Why not? <br> <br>          WATKINS:  Because he wasn't sure what the <br>          position exactly was.  There was no job <br>          description, according to him, at that <br>          particular point in time. <br> <br>          Q.  So tell me what you asked him and what <br>          he told you about that job. . . .  <br>  <br>          WATKINS:  That they were expanding and <br>          that there would be a job available in the <br>          office and I would be able to bid on it. <br> <br>          Q.  Did you ever bid on it? <br> <br>          WATKINS:  No, sir. <br> <br>          Q.  Is there a reason why you didn't bid <br>          on it? <br> <br>          WATKINS:  It never came available between <br>          that conversation and November 7th. <br> <br>          Q.  Did you explore that job with him at <br>          any time? <br> <br>          WATKINS:  No. <br> <br>          Q.  Did you ever discuss it again other <br>          than that two or three little sentences <br>          you just described? <br> <br>          WATKINS:  No, sir. <br> <br>          Q.  Did he discuss any other jobs with <br>          you? <br> <br>          WATKINS:  Yes. <br> <br>          Q.  What other jobs . . . on this <br>          telephone call? . . .  <br> <br>          WATKINS:  He said that there was a <br>          possibility but no guarantees that he <br>          might be able to put me as a gas attendant <br>          on third shift in Winslow. <br> <br>          Q.  Okay.  Did he say anything to you <br>          about your salary? <br> <br>          WATKINS:  I asked him was it going to be <br>          at the same rate of pay and he said no. <br> <br>          Q.  Okay.  This was what, the Winslow job <br>          or the office job? <br> <br>          WATKINS:  The Winslow job. <br> <br>          Q.  What about the office job? <br> <br>          WATKINS:  Nothing ever was discussed <br>          again. <br> <br>     On November 7, 1994, Look called Watkins a third and <br>final time to notify Watkins that the company would no longer pay <br>for his insurance because his leave had then expired, and also to <br>find out whether Watkins was planning to go back to work.  Watkins <br>again asked if his store manager job was available, and Look <br>informed him that it was not.  At that point, Watkins said, "I <br>think we're going to part company."  Watkins's position at that <br>point was that he wanted the store manager position or nothing; <br>Watkins stated that he had decided not to accept any job other than <br>that of store manager.

              I.  FAMILY AND MEDICAL LEAVE ACT CLAIM <br>     As indicated above, the district court denied J&S's <br>motion for summary judgment on the FMLA claim.  Also, the court <br>denied J&S's motion for a judgment as a matter of law pursuant to <br>Fed. R. Civ. P. 50(a) which was made during the trial.  The jury <br>then returned a verdict in Watkins's favor for $43,000, the <br>stipulated amount of damages.  J&S filed a timely motion to vacate <br>the judgment on this verdict pursuant to Fed. R. Civ. P. 59(e), <br>which was also denied.  On appeal, J&S claims that the district <br>court erred in failing to grant summary judgment on the FMLA claim <br>and in failing to grant its motion to vacate the final judgment. <br>     As stated above, the district court defeated all of J&S's <br>attempts for a favorable decision on the FMLA claim.  J&S failed to <br>renew its motion for a judgment as a matter of law at the close of <br>proof, so the denial of that motion is not properly before the <br>court.  Simon v. Navon, 71 F.3d 9, 13 (1st Cir. 1995).  Since the <br>case proceeded to trial, denial of the defendant's motion for <br>summary judgment will not be separately addressed.  Lama v. Borras, <br>16 F.3d 473, 476 n.5 (1st Cir. 1994).  We shall review the district <br>court's denial of the motion to vacate the judgment, following the <br>jury verdict, for an abuse of discretion.  Simon, 71 F.3d at 13 <br>(citing Snchez v. Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir. <br>1994)). <br>     Pursuant to the FMLA, "an eligible employee shall be <br>entitled to a total of 12 workweeks of leave during any 12-month <br>period . . . [b]ecause of a serious health condition that makes the <br>employee unable to perform the functions of the position of such <br>employee."  29 U.S.C.  2612(a)(1)(D).  Any employee who takes such <br>a leave "shall be entitled, on return from such leave -- (A) to be <br>restored by the employer to the [previous] position . . . or (B) to <br>be restored to an equivalent position with equivalent employment <br>benefits, pay, and other terms and conditions of employment."  29 <br>U.S.C.  2614(a)(1)(A), (B); see also Patterson v. Alltel <br>Information Services, Inc., 919 F. Supp. 500, 504 (D. Me. 1996).  <br>     In order to establish a prima facie case for a FMLA <br>violation, a plaintiff must show that (1) he is protected under the <br>Act; (2) he suffered an adverse employment decision; and (3) either <br>he was treated less favorably than an employee who had not <br>requested FMLA leave or the adverse decision was made because of <br>his request for leave.  Oswalt v. Sara Lee Corp., 889 F. Supp. 253, <br>259 (N.D. Miss. 1995), aff'd, 74 F.3d 91 (5th Cir. 1996); see alsoDaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997) <br>(discussing the appropriate burden-shifting in claims brought <br>pursuant to the FMLA).  It is undisputed that Watkins was an <br>eligible employee. <br>     The district court held that hiring someone to replace <br>Watkins in his former position as station manager did not, in and <br>of itself, "constitute an adverse employment decision" under FMLA.  <br>We agree that J&S was not required under the FMLA to return Watkins <br>to his former management position, which Watkins conceded was a <br>strenuous job that required at least a fifty-two hour week.  SeeBrown v. J.C. Penny Corp., 924 F. Supp. 1158 (S.D. Fla. 1996); 29 <br>C.F.R.  825.214.  J&S was required, however, to afford him <br>equivalent work and compensation under the Act.  We construe the <br>"equivalent" requirement to mean that which is substantially equal <br>or similar, not necessarily identical or exactly the same.  The <br>employer may take into account the employee's physical capabilities <br>in determining the equivalent work and compensation involved. <br>     Watkins, at the outset, based on his own testimony, <br>wanted and reiterated his desire to return to his job as store <br>manager, but he was told that J&S planned to replace him due to the <br>pressures and needs of J&S's small business operation.  There were <br>non-specific discussions about other positions and when and if <br>Watkins was able to return to work.  Watkins asked what J&S <br>expected him to do in light of the fact that his old position was <br>no longer available.  J&S raised the possibilities of a potential <br>office job (that apparently never became available) or a lesser <br>paying gas attendant job.  Neither job, however, was actually <br>offered to Watkins, and it is questionable whether either job was <br>an "equivalent" position for purposes of satisfying the FMLA.  As <br>indicated above, the district court found that the question of <br>whether Watkins was offered an equivalent position, giving Watkins <br>the benefit of the most favorable view of conflicting evidence, <br>required a jury determination.   <br>     The district court properly instructed the jury that <br>Watkins had the burden of proving his case.  See Kaylor v. Fannin <br>Regional Hospital, 946 F. Supp. 988, 1000 (N.D. Ga. 1996).  The <br>court then required Watkins to prove by a preponderance of the <br>evidence each of the following conditions: <br>     1.   That J&S failed to provide an <br>          equivalent position with equivalent <br>          pay and benefits at the end of the <br>          twelve-week period, using a <br>          "substantially equivalent" <br>          definition. <br> <br>     2.   "[T]hat Watkins was physically able <br>          to perform essential functions of <br>          . . . an equivalent position . . . <br>          at the end of the twelve-week <br>          period." <br> <br>     3.   That Watkins "did not voluntarily <br>          resign." <br> <br>     4.   That Watkins did not prevent J&S <br>          from carrying out its FMLA <br>          obligations by his own "actions or <br>          inactions." <br> <br>     J&S moved to vacate the verdict under Rule 59(e) on two <br>grounds.  It argued that it could not, as a matter of law, be <br>required to reinstate Watkins because (1) he failed to "return from <br>[FMLA] leave," as required under 29 U.S.C.  2614(a)(1), and (2) he <br>"unequivocally advise[d] [J&S] . . . that [he] [did] not intend to <br>work" and thus was no longer eligible for reinstatement under 29 <br>C.F.R.  825.312(e). <br>     We address the latter argument first.  Although J&S <br>styled its motion as one based on "a manifest error of law," it is <br>clear that the jury's verdict was not based on the erroneous <br>proposition that an employer is obligated under the FMLA to offer <br>reinstatement to an employee who has resigned.  Whether Watkins <br>voluntarily resigned was a question of fact that the jury was <br>expressly asked to resolve.  The jury apparently found that, under <br>the circumstances, Watkins's statement, "I think we're going to <br>part company," was not equivalent to a voluntary resignation but <br>rather his recognition that J&S refused to offer him reinstatement <br>to an equivalent position.  Although reasonable minds could <br>certainly differ, that finding was supported by sufficient <br>evidence.  We conclude that the district court did not abuse its <br>discretion in refusing to vacate the verdict on this ground.  SeeLama, 16 F.3d at 477. <br>     J&S's other argument is equally unavailing.  In essence, <br>it asks the court to impose a per se rule that an employee is not <br>eligible for reinstatement unless he or she reports in person to <br>the employer's place of business at the end of the leave period.  <br>Nothing in the FMLA supports such a rule.  Section 2614(a)(1) <br>merely provides that an employee is entitled to reinstatement to <br>the same or an equivalent position "on return from [FMLA] leave," <br>without defining this phrase further.  See 29 U.S.C.  2614(a)(1). <br>     A Department of Labor regulation addressing the question <br>"What notice may an employer require regarding an employee's return <br>to work?" does provide some guidance.  See 29 C.F.R.  825.309.  <br>Section 825.309 explains that "an employer may require an employee <br>on FMLA leave to report periodically on the employee's status and <br>intent to return to work" and that "[FMLA] obligations continue if <br>an employee indicates that he or she may be unable to work but <br>expresses a continuing desire to do so."  Id.  A per se rule <br>requiring employees to show up on the employer's doorstep in order <br>to be eligible for reinstatement would be contrary to the spirit, <br>if not the letter, of this regulation. <br>     The two cases cited by J&S do not constitute authority to <br>the contrary.  In Lacoparra v. Pergament Home Centers, 982 F.Supp. <br>213 (S.D.N.Y 1997), the court held that an employee who "never <br>contacted her employer about reinstatement" was not entitled to <br>reinstatement.  Id. at 221.  Similarly, the court in Nunes v. Wal- <br>Mart Stores, 980 F.Supp. 1335 (N.D. Cal. 1997), found that an <br>employer had no obligation to reinstate an employee who failed to <br>submit a required leave form and did not stay in contact with her <br>employer (or even permit her employer to stay in contact with her, <br>since she changed her address and phone number without informing <br>the employer).  Neither Lacoparra nor Nunes imposed a per se rule <br>that an employee can only "return from leave" by physically <br>presenting himself or herself at the employer's place of business, <br>and we decline to impose one here. <br>     J&S's suggestion does direct our attention to an <br>uncertain area of FMLA law, namely, who bears the burden of <br>initiating contact:  does the employer have an affirmative <br>obligation to contact the employee in order to ascertain the <br>employee's intentions and to offer the employee reinstatement, or <br>does the employee (even in the absence of specific directives from <br>the employer pursuant to 29 C.F.R.  825.309) have a duty to <br>contact the employer to seek reinstatement?  This is a different <br>question than whether the employee must physically return to the <br>workplace, and one we need not decide here, because it was <br>undisputed that Watkins and J&S were in contact at the end of <br>Watkins's leave period, by virtue of the November 7th phone call. <br>     The fact question left for the jury was whether Watkins <br>had "returned from leave" at the time of this phone call and was <br>therefore eligible for reinstatement.  The district court broke <br>down this question into three component questions:  (1) whether <br>Watkins "was physically able to perform essential functions of <br>. . . an equivalent position . . . at the end of the twelve-week <br>period," (2) whether he "did not voluntarily resign," and (3) <br>whether he did not prevent J&S from carrying out its FMLA <br>obligations by his own "actions or inactions."  The jury answered <br>each of these questions in the affirmative, and there was <br>sufficient evidence to support its conclusions.  Thus, we find that <br>the district court did not abuse its discretion in refusing to <br>vacate the verdict based on the argument that Watkins had failed to <br>"return from leave" under 29 U.S.C.  2614(a)(1). <br> <br>            II.  WATKINS'S MOTION FOR SUMMARY JUDGMENT <br>A.  ADA Claim <br>     The district court made the following findings with <br>respect to the ADA claim: <br>     1.   Plaintiff did not provide J&S with <br>          adequate medical certification <br>          regarding his condition and ability <br>          to return to work within the meaning <br>          of ADA requirements. <br> <br>     2.   J&S made offers of other positions <br>          and was not required, for business <br>          reasons, to hold the vacant position <br>          open for Watkins.  The employer was <br>          not required to wait indefinitely <br>          for plaintiff to show his ability to <br>          work in his old job or in any <br>          comparable positions. <br> <br>     3.   Reasonable accommodation does not <br>          require leaving a position open or <br>          filling it temporarily when an <br>          employer offers uncontradicted <br>          evidence of the importance of such a <br>          position to its business, especially <br>          when the employer has no way of <br>          knowing when, or even if, the <br>          employee will return to work.  <br>          Monette v. Electronic Data Systems <br>          Corp., 90 F.3d 1173, 1187-88 (6th <br>          Cir. 1996). <br> <br>     4.   Plaintiff, in failing to provide his <br>          employer with any information <br>          regarding his ability to return, <br>          demands what certainly amounts to <br>          "indefinite leave."  Such an <br>          accommodation is not required by the <br>          ADA. <br> <br>               . . . <br> <br>          Defendant has presented a legitimate <br>          nondiscriminatory reason for replacing <br>          Plaintiff.  Plaintiff has presented no <br>          evidence that Defendant's reason was <br>          merely a pretext for illegal <br>          discrimination.  Accordingly, Defendant's <br>          Motion for Summary Judgment as to the ADA <br>          claim is granted. <br>     Watkins argues that J&S failed to reasonably accommodate <br>him by refusing to hold open his position as station manager until <br>his return from leave.  The district court found that there was "no <br>direct evidence of discrimination" under the Act, and that J&S was <br>not required to hold the managerial position open for an indefinite <br>amount of time.  The district court determined that Watkins failed <br>adequately to show that on the date of his replacement that he was <br>able "to return to work" or "to perform the essential functions of <br>his job without reasonable accommodation."  The court recognized <br>that under some circumstances an employer may be required to hold <br>a position open for some duration as a "reasonable accommodation," <br>but when the employee's absence poses an undue hardship on the <br>employer, then leaving the position open would not be considered to <br>be "reasonable."  Finally, the district judge determined that <br>Watkins "never informed [J&S] as to when he might be able to return <br>or what accommodations he might require"; in effect, he concluded <br>that Watkins never made a specific reasonable accommodation request <br>for purposes of the ADA.  The court concluded, furthermore, that <br>the J&S was not advised with sufficient specificity that in the <br>"immediate future," Watkins would be able to resume his job or an <br>equivalent position, citing Myers v. Hose, 50 F.3d 278, 282 (4th <br>Cir. 1995).  In sum, J&S was not required, for ADA purposes, to <br>provide accommodation to Watkins for what amounted to an <br>"indefinite leave."  See Monette v. Electronic Data Systems, 90 <br>F.3d 1173, 1187-88 (6th Cir. 1996); Rogers v. International Marine <br>Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996); Hudson v. MCI <br>Telecommunications, 87 F.3d 1167, 1169 (10th Cir. 1996).  <br>     Watkins argues in his brief that job termination alone <br>involves such psychological stress that he has presented a case for <br>jury determination.  He cites no case in support of that <br>proposition.  Watkins complains that other than his FMLA damages he <br>is left without a remedy.  We impose no further requirement on the <br>employer, under the circumstances of this case, to afford <br>additional accommodation to Watkins whose ability to return to <br>service when he was replaced was, at best, indefinite. <br>     The difficulty in this case is allowing the recovery of <br>substantial damages under the FMLA based on the jury verdict, while <br>at the same time affirming the summary judgment in favor of J&S on <br>Watkins's ADA claim.  We agree with the district court that while <br>these causes of action may interrelate, they involve separate and <br>distinct statutory claims.  There is a paucity of authority on the <br>FMLA, and we have concluded that material factual controversies <br>existed for a factfinder to decide.  We concede particular <br>difficulty with the jury finding that Watkins was able to perform <br>the essential functions of an equivalent position in early <br>November, 1994.  We resolve the difficulty by giving Watkins the <br>benefit of doubt and leaving this issue within the province of the <br>jury.  The parties' burdens are different under the two statutory <br>schemes.  Under the FMLA, J&S was responsible for restoring Watkins <br>to an equivalent position when his leave expired.  The evidence <br>supported the jury's determination that it failed in that duty.  <br>However, under the ADA, Watkins was obligated to request a <br>reasonable accommodation.  The district court found, as a matter of <br>law, that Watkins's request that J&S leave his original position <br>open for an indefinite amount of time was unreasonable.  We affirmboth the jury's verdict and the district court's decision on those <br>ADA claims. <br>B.  Emotional Distress Claim <br>     There is a heavy burden cast upon Watkins on his claim <br>for emotional distress under Maine law.  He must demonstrate that <br>he suffered severe stress and that the action of J&S was outrageous <br>in nature.  See Barnes v. Zappia 658 A.2d 1086 (Me. 1995); see alsoDewilde v. Guy Gannett Publishing Co., 797 F. Supp. 55, 63 (D. Me. <br>1992).  We find no error in the determination by the district court <br>that Watkins failed to meet this difficult standard under the <br>circumstances of this case.  We have affirmed the grant of summary <br>judgment on the ADA claim for the reasons indicated.  The emotional <br>distress claim is interrelated with the ADA claim with respect to <br>the termination.  We affirm the judgment on count three. <br> <br>                         III.  CONCLUSION <br>     For the reasons stated, we affirm the FMLA jury award and <br>judgment.  We affirm also the district court's grant of summary <br>judgment in favor of J&S on the ADA claim and the extreme emotional <br>distress claim.</pre>

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