                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                             No. 99-1656/99-2059
                                ___________

Katherine A. Thorson,                 *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Gemini, Inc.,                         *
                                      *
                Appellant.            *   Appeals from the United States
-------------------------------       *   District Court for the
Equal Employment Advisory Council;    *   Northern District of Iowa.
Society for Human Resource            *
Management; National Association      *
of Manufacturers,                     *
                                      *
      Amici on Behalf of Appellant,   *
                                      *
Secretary of Labor,                   *
                                      *
      Amicus on Behalf of Appellee.   *

                                 ____________

                                  No. 99-1708
                                 ____________

Katherine A. Thorson,                 *
                                      *
            Appellant,                *
                                      *
      v.                              *
                                        *
Gemini, Inc.,                           *
                                        *
                Appellee.               *
---------------------------             *
Equal Employment Advisory Council; *
Society for Human Resource              *
Management; National Association        *
of Manufacturers,                       *
                                        *
        Amici on Behalf of Appellee,    *
                                        *
Secretary of Labor,                     *
                                        *
        Amicus on Behalf of Appellant. *
                                   ___________

                              Submitted: November 18, 1999
                                  Filed: March 3, 2000
                                   ___________

Before BOWMAN, LAY, and HANSEN, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

      Gemini, Inc., appeals from the orders of the District Court granting judgment and
awarding damages to Katherine A. Thorson1 on her claim under the Family and


      1
       Gemini states in its brief that Thorson indicated at trial a preference for the
surname Rindels (she married and changed her name after suit was filed), and so
Gemini used the name Rindels throughout its briefs to refer to the plaintiff (although
Gemini's counsel called her "Ms. Thorson" at trial). Thorson's own brief, however,
uses the name under which the case was filed (Thorson). The caption has not been
changed in the District Court, to our knowledge, or in this Court. For the sake of
consistency and to avoid any confusion, we will refer to the plaintiff as Thorson.
                                          -2-
Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (1994) (FMLA or Act). Thorson
cross appeals, challenging certain aspects of the damages award. We affirm.

                                           I.

        Thorson began working in the packing and shipping department of Gemini's plant
in Decorah, Iowa, in September 1986. Acceptable absenteeism at Gemini was limited
to five percent of an employee's scheduled work hours in a rolling twelve-month period.
The limit covered all absences (except those for scheduled vacation, holidays, or
approved leaves of absence), regardless of cause and including absences for illness.
Those employees with excessive absenteeism (greater than five percent) were subject
to termination.

       Thorson left work on Wednesday, February 2, 1994, complaining of diarrhea and
stomach cramps and went to see a physician. She was absent from work on Thursday
and Friday, and returned Monday, February 7, with a note from her doctor (presumably
written at her February 2 visit) indicating "no work" until Monday, February 7. On
Monday, she worked only a few hours before returning to the doctor with stomach
pain. The doctor ordered tests for Friday, February 11, suspecting either a peptic ulcer
or gallbladder disease. The test results were normal. Thorson returned to work on
Monday, February 14, again with a doctor's note stating "no work" until February 14.
Thorson worked that week but was terminated on February 18 for absenteeism
exceeding five percent of her scheduled work hours during the previous twelve months.
On March 9, another doctor determined that Thorson had a small hiatal hernia, mild
antral gastritis that could be managed with antacid, and duodenitis, all stress-related.

       In January 1995, Thorson filed a complaint in the District Court against Gemini
alleging various violations of state and federal law, including a claim under the FMLA.
Under the Act, an eligible employee is entitled to twelve weeks of unpaid leave during
any twelve-month period for any of several reasons, including "a serious health

                                          -3-
condition that makes the employee unable to perform the functions of the position of
such employee." 29 U.S.C. § 2612(a)(1)(D); see id. § 2611(2)(A) (defining eligible
employee). The employee is entitled to be restored to her job (or to an equivalent
position) upon her return to work after taking FMLA leave. See id. § 2614(a). Further,
the employee's FMLA absences cannot count against her under her employer's "no
fault" attendance policy. See 29 C.F.R. § 825.220(c) (1999). Thorson claimed she was
entitled to FMLA leave for her February 1994 absences, and therefore she should not
have been terminated for excessive absenteeism.

       The District Court granted summary judgment to Gemini on all counts of
Thorson's complaint. As to her FMLA claim in particular, the court concluded that
Thorson could not prove that the illness at issue was a "serious health condition," as she
claimed. Thorson appealed, but only the adverse judgment on her FMLA claim. This
Court reversed and remanded "to give the parties an additional chance to argue, and the
district court another chance to determine, whether Thorson's condition meets the
regulatory criteria for a serious health condition" in light of a Department of Labor
(DOL) opinion letter that was released while Thorson's appeal was pending. Thorson
v. Gemini, Inc., 123 F.3d 1140, 1141-42 (8th Cir. 1997).

      Revisiting the issue with the benefit of the DOL opinion letter, the District Court2
concluded that Thorson's illness in February 1994 was indeed a "serious health
condition" within the meaning of the FMLA. See Thorson v. Gemini, Inc., 998 F.
Supp. 1034 (N.D. Iowa 1998). The court granted summary judgment to Thorson on
the issue of liability and denied Gemini's motion for summary judgment. The case then
proceeded to trial before Magistrate Judge Jarvey3 on the issue of damages. The

      2
       The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
      3
        The Honorable John A. Jarvey, United States Magistrate Judge for the Northern
District of Iowa, hearing the case with the consent of the parties pursuant to 28 U.S.C.
                                           -4-
Magistrate Judge awarded Thorson $49,591.86 plus interest, costs, and attorney fees,
but no liquidated damages. Gemini appeals and Thorson cross appeals.

                                            II.

      In its appeal, Gemini raises issues relating both to the question of FMLA liability
and to the trial on damages. We address each in turn.

                                            A.

       Gemini contends that the District Court erred in granting summary judgment to
Thorson on the question of FMLA liability because Thorson did not have a "serious
health condition" within the meaning of the Act.4 Our review of a district court's
decision to grant summary judgment is de novo, and we apply the same standard as the
district court. See Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1147 (8th Cir. 1998).
That is, we will affirm if, upon review, we agree that there are no genuine issues of
material fact and that Thorson is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c).

       We look first to the language of the statute as Congress enacted it for a definition
of "serious health condition." As relevant here, the FMLA defines the phrase as "an
illness, injury, impairment, or physical or mental condition that involves . . . continuing
treatment by a health care provider." 29 U.S.C. § 2611(11)(B). It is undisputed that


§ 636(c) (1994 & Supp. III 1997). The parties waived any right they may have had to
a jury trial on the issue of damages.
      4
        Because we are affirming the District Court on Gemini's claim that the court
erred in granting summary judgment to Thorson on the question of FMLA liability, it
is not necessary for us to address separately Gemini's argument that the court should
have granted Gemini's motion for summary judgment.
                                            -5-
Thorson had an "illness" or a "physical . . . condition," so we focus our attention on
what is required to prove "continuing treatment by a health care provider." To answer
that question, we consult the regulations prescribed by the Secretary of Labor and the
definition of "serious health condition" therein. Id. § 2654 (directing Secretary of
Labor to "prescribe such regulations as are necessary to carry out" the Act). As we
shall see, it was the DOL's decision that "serious health condition" should be defined
by an objective test that could be applied consistently based on the facts of each case.

      In June 1993, the Secretary first promulgated the interim final rule, effective
August 5, 1993, also the effective date of the Act for most affected employers and
employees. See The Family and Medical Leave Act of 1993, 58 Fed. Reg. 31,794
(1993) (interim final rule). The final rule appeared in the Federal Register on
January 6, 1995, with an effective date of April 6, 1995.5 See 60 Fed. Reg. 2180
(1995) (final rule); id. 16,382 (noting change in effective date and reporting
corrections).




      5
        The interim final rule, The Family and Medical Leave Act of 1993, 58 Fed. Reg.
31,812 (1993), was codified at 29 C.F.R. pt. 825. The 1993 Code of Federal
Regulations (CFR) (revised as of July 1, 1993) was the first CFR in which the interim
final rule appeared. It is to this 1993 edition of the CFR that we refer when discussing
that rule.

       The final rule, the Family and Medical Leave Act of 1993, 60 Fed. Reg. 2237
(1995), replaced the interim rule at 29 C.F.R. pt. 825. As of July 1999, the final rule
had not been amended since the 1995 promulgation, so when citing the final rule we
refer to the most recent volume of the CFR available for Title 29, part 825, the 1999
edition (which in fact is the 1998 revision because none of the regulations that appear
in the volume were amended between July 1998 and July 1999).

      We will append the dates of the CFR to our citations of the rules only when there
might be some confusion as to which version we refer.
                                          -6-
       The interim final rule was the only official guidance available to Gemini (or to
anyone else) at the time Thorson was terminated in February 1994. Thus, if we find
the final rule in direct conflict with the interim rule, we do not see how we can give the
later version of the rule retroactive effect when no retroactive intent has been
expressed. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("[A]
statutory grant of legislative rulemaking authority will not, as a general matter, be
understood to encompass the power to promulgate retroactive rules unless that power
is conveyed by Congress in express terms."). On the other hand, the expanded final
regulations, to the extent they merely amplify the language of the interim regulations,
may provide valuable guidance to us as we apply the law to the facts here. In addition,
the parties have directed our attention to the legislative history for congressional
exposition on the FMLA and to DOL opinion letters for the agency's interpretation of
its own regulations. It is axiomatic that neither of these resources provides controlling
authority for our inquiry, but, again, they may provide helpful insight. We will explain
the relative weight we give to these sources of possible clarification or explication as
we consider each of them.

         This is the definition of "serious health condition," as relevant to Thorson's claim,
that appears in the interim final rule: "For purposes of FMLA, 'serious health condition'
means an illness, injury, impairment, or physical or mental condition that involves:
. . . . [a]ny period of incapacity requiring absence from work . . . of more than three
calendar days, that also involves continuing treatment by . . . a health care provider."
29 C.F.R. § 825.114(a)(2); see id. § 825.800 (definitions). On its face, then, the
interim final rule sets forth three objective requirements that must be met before
Thorson can be deemed to have had a "serious health condition": she must have had
a "period of incapacity requiring absence from work," that period must have exceeded
three calendar days, and she must have had "continuing treatment by . . . a health care
provider" within that period.




                                             -7-
       Before we proceed, we must clear up some confusion in this case about what are
fact questions and what is to be decided by a court as a matter of law when determining
whether an individual has a "serious health condition" within the meaning of the FMLA.
Gemini takes seemingly inconsistent positions on this issue in its main appellant's brief.
On the one hand, Gemini declares that the "district court erred in denying Gemini's
motion for summary judgment because, as a matter of law, [Thorson's] condition was
not protected by the statute." Brief of Appellant Gemini at 17 (emphasis added). On
the other hand, citing Victorelli v. Shadyside Hospital, 128 F.3d 184, 190-91 (3d Cir.
1997), Gemini says, "It was for the factfinder to decide whether [Thorson's] condition
is a serious health condition under the FMLA." Brief of Appellant Gemini at 36
(emphasis added).

       Having considered the issue, we conclude that this is one of those ubiquitous
mixed questions of fact and law. As we noted above, the regulations implementing the
FMLA (as relevant here) set out an objective test for a FMLA "serious health
condition." It is for the fact-finder to look at the record and decide if the evidence
supports the elements of that test. Once the fact-finder has affirmatively found the
necessary facts, the conclusion that a plaintiff had a "serious health condition" is
inescapable as a matter of law. Therefore, if there are no genuine issues raised as to
those facts, which are all material, then summary judgment on the question of "serious
health condition" will likely be appropriate (at least if determining whether the plaintiff
had a "serious health condition" will conclusively determine liability, as in this case).
With this framework in mind, we consider the factors comprising the objective test and
the evidence in the record of this case to determine if the District Court was correct in
granting summary judgment to Thorson. We forgo our discussion of incapacity for the
time being and consider first whether Thorson underwent the "continuing treatment"
required for a "serious health condition." We also note that it is without dispute that
Thorson's absence for her February 1994 illness exceeded three calendar days, so we
will not belabor that part of the test.


                                            -8-
        "Continuing treatment," as relevant here, means that "[t]he employee . . . is
treated two or more times for the injury or illness by a health care provider. Normally
this would require visits to the health care provider . . . ." 29 C.F.R. § 825.114(b)(1);
see id. § 825.800 (definitions). Under this definition, and given the undisputed evidence
in this case, it is clear that Thorson's illness of February 1994 met the "continuing
treatment" part of the definition of "serious health condition" under the FMLA interim
final rule: she saw a physician on February 2 and February 7, and had tests performed
on February 11, all while she was absent from work due to illness.

       The final regulations expound upon and rearrange some of the language that
appeared in the interim regulations, but they do not change the substance of the rule.
See Hodgens v. General Dynamics Corp., 144 F.3d 151, 162 n.6 (1st Cir. 1998) (noting
agreement with Third Circuit's conclusion in Victorelli that standard for FMLA
"continuing treatment" is "essentially the same" in both sets of regulations). In the final
regulations, "serious health condition," as relevant to Thorson's case:

      means an illness, injury, impairment, or physical . . . condition that
      involves:
       ...
             (2) Continuing treatment by a health care provider. A serious
      condition involving continuing treatment by a health care provider
      includes . . . :
             (i) A period of incapacity (i.e., inability to work . . . due to the
      serious health condition, treatment therefor, or recovery therefrom) of
      more than three consecutive calendar days, and any subsequent treatment
      or period of incapacity relating to the same condition, that also involves:
             (A) Treatment two or more times by a health care provider . . . .




                                            -9-
29 C.F.R. § 825.114(a)(2)(i)(A); see id. § 825.800 (definitions).6
"Treatment . . . includes (but is not limited to) examinations to determine if a serious
health condition exists and evaluations of the condition." 29 C.F.R. § 825.114(b); see
id. § 825.800 (definitions). Reserving for the moment, as we have said, the question
of Thorson's "incapacity" (which has become a part of the "continuing treatment" test
in the final rule), Thorson otherwise had the requisite "continuing treatment" during her
February illness under the objective standard set forth in both rules. This is essentially
without dispute. Gemini nevertheless argues that, given the ultimate diagnosis of only
minor ailments, Thorson did not have a FMLA-qualifying "serious health condition" –
regardless of whether the illness met the objective criteria set forth in the regulations.

       As Gemini notes, the final rule expands upon the interim final rule with this
statement: "Ordinarily, unless complications arise, the common cold, the flu, ear aches,
upset stomach, minor ulcers, headaches other than migraine, . . . etc., are examples of
conditions that do not meet the definition of a serious health condition and do not
qualify for FMLA leave." 29 C.F.R. § 825.114(c); see id. § 825.800 (definitions).
Gemini would have us declare that Thorson's illness was not a "serious health
condition" because an upset stomach and a minor ulcer – the final diagnosis of the
February 1994 illness – are on the list of conditions that, at least ordinarily, "do not
meet the definition . . . and do not qualify for FMLA leave."

      On April 7, 1995, the DOL issued an opinion letter that iterated the above-
quoted language from § 825.114(c) of the final rule and concluded:

      The fact that an employee is incapacitated for more than three days, has
      been treated by a health care provider on at least one occasion which has

      6
        The only difference between the interim and the final regulations that arguably
is of substance is the requirement that the statutory absence from work exceed three
consecutive days. Again, there is no dispute that this was the case for Thorson in
February 1994.
                                           -10-
      resulted in a regimen of continuing treatment prescribed by the health care
      provider does not convert minor illnesses such as the common cold into
      serious health conditions in the ordinary case (absent complications).

Op. FMLA-57 (Apr. 7, 1995).7 But then, in an opinion letter dated over a year and a
half later, the DOL referred to this sentence from the 1995 letter and said, "This
statement is an incorrect construction of the regulations and must, therefore, be
withdrawn." Op. FMLA-86 (Dec. 12, 1996). According to the DOL, "[c]omplications,
per se, need not be present for a condition to qualify as a serious health condition if the
regulatory . . . period of incapacity and 'regimen of continuing treatment by a health
care provider' tests are otherwise met." Id. The letter goes on to emphasize the
objective nature of the test: "The regulations reflect the view that, ordinarily,
conditions like the common cold and flu (etc.) would not routinely be expected to meet
the regulatory tests, not that such conditions could not qualify under FMLA where the
tests are, in fact, met in particular cases." Id.

      Thorson insists that we must apply the 1996 letter to her case. Indeed, we
remanded to the District Court the first time this case was on appeal for further
argument in light of that letter, which was issued while the appeal was pending. And
generally we do defer to the opinions of the agency charged with promulgating rules
for and enforcing congressional enactments. "Our task is not to decide which among
several competing interpretations best serves the regulatory purpose. Rather, the
agency's interpretation must be given 'controlling weight unless it is plainly erroneous


      7
        The letter refers to an alternate definition of "continuing treatment" found in the
regulations, besides the one supported by the facts of this case, that requires a
prescribed regimen of ongoing treatment instead of treatment two or more times by a
health care provider. See 29 § C.F.R. 825.114(b)(2) (1993). We will assume, as has
everyone else who is on the record in this case, that the letter refers not only to the
"regimen of continuing treatment" part of the regulatory test but also to the "treatment
two or more times by a health care provider" part of the test.
                                           -11-
or inconsistent with the regulation.'" Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994) (quoting Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))). Nevertheless, we are far less
inclined to yield to agency opinion if the administrative agency's interpretation of a
matter appears to be inconsistent, as in this case (to say nothing of the issues that would
arise should we decide to regard either a 1995 opinion letter or a 1996 opinion letter
as determinative of liability for an alleged 1994 violation, if such letter were in conflict
with the plain language of the regulations that were in effect at the time of the purported
violation). See id. at 515.

       But even without deferring to the DOL's opinions (either one of them), we
conclude that Thorson received "continuing treatment" under the objective standard set
forth in the regulations, and thus her illness satisfied this part of the "serious health
condition" test. Subjectively, it may be that Thorson's condition was not "serious" in
the usual sense of the word. Nevertheless, until February 11, her physician believed
Thorson could have a potentially serious condition, and it was not until March 9, after
Thorson had been terminated from her job at Gemini, that a diagnosis definitively ruled
out her physician's initial suspicions. Thorson was sufficiently ill to see a physician two
times in a period of just a few days and that is all that the plain language of both the
interim and final rules requires for "continuing treatment."

       Gemini then broadens its argument to attack the regulations themselves, asserting
that they are inconsistent with congressional intent. If "Congress has directly spoken
to the precise question at issue," then we will not defer to the agency's interpretation
to the extent that it is inconsistent with the "unambiguously expressed intent of
Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842, 843 (1984). On the other hand, "if the statute is silent or ambiguous," then
the agency's construction of the legislation is entitled to deference, providing it "is
based on a permissible construction of the statute." Id. at 843. Gemini contends that


                                            -12-
Congress has "spoken directly" to the issue of a FMLA "serious health condition,"
citing this statement from the Senate Report on the bill:

       The term "serious health condition" is not intended to cover short-term
       conditions for which treatment and recovery are very brief. It is expected
       that such conditions will fall within even the most modest sick leave
       policies. Conditions or medical procedures that would not normally be
       covered by the legislation include minor illnesses which last only a few
       days . . . .

S. Rep. No. 103-3, at 28 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 30. The Report
continues with a non-exclusive list of "serious health conditions," such as heart attack,
cancer, stroke, appendicitis, pneumonia, heart bypass surgery, back surgery, and
pregnancy. The type of gastrointestinal distress that Thorson ultimately was
determined to have is not among the examples given. On the other hand, the Senate
Report noted that "[t]he definition of 'serious health condition' . . . is broad and intended
to cover various types of physical and mental conditions." Id.

       We do not believe this legislative history assists Gemini all that much. While
Congress may have "expected" that minor illnesses "normally" would not come within
the definition of "serious health condition," that does not mean such ailments can never
be FMLA "serious health conditions." Further, a non-exclusive list of ailments that
might qualify as "serious health conditions" that does not include Thorson's final
diagnosis does not preclude FMLA leave for her absence.8 She missed work for more


       8
        Incidentally, this was a list that the DOL considered making part of the final
rule. In reporting the final rule, the DOL stated:

       The Department did not consider it appropriate to include in the
       regulation the "laundry list" of serious health conditions listed in the
       legislative history because their inclusion may lead employers to
       recognize only conditions in the list or to second-guess whether a
                                            -13-
than a "few days" on the advice of a doctor. Thorson's treating physician originally
thought she might have a peptic ulcer or gallbladder disease, conditions that could have
been quite serious in any sense of the word.

       But even if we thought the legislative history would be helpful to Gemini's
position, we would reject the contention that it should prevent us from deferring to the
DOL's interpretation of the statute as expressed in the regulations. Despite Gemini's
argument to the contrary, we do not see this legislative history as Congress speaking
"directly" to the question of what constitutes a "serious health condition." The Act's
definition of "serious health condition," which is without question Congress speaking
"directly" to the issue, is broad and does not include any examples of conditions that
either do or do not qualify as FMLA "serious health conditions." See supra, at 5-6
(quoting statutory definition of "serious health condition"). There is no express
statutory language that parallels the legislative history Gemini cites. In any case, the
DOL's objective test for "serious health condition," which avoids the need for
employers – and ultimately courts – to make subjective decisions about statutory
"serious health conditions," clearly is a permissible construction of the statute. See
Chevron, 467 U.S. at 843. Under the DOL's definition, it is possible that some
absences for minor illnesses that Congress did not intend to be classified as "serious
health conditions" may qualify for FMLA protection. But the DOL reasonably decided
that such would be a legitimate trade-off for having a definition of "serious health
condition" that sets out an objective test that all employers can apply uniformly. See
Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 699 (1991) ("Having determined that
the Secretary's position is entitled to deference, we must decide whether this position
is reasonable."). It is true that honest (or less than honest) errors by health care
providers and fraud or abuse by employees are potential problems, given the objective


      condition is equally "serious", rather than apply the regulatory standard.

60 Fed. Reg. 2180, 2195 (1995).
                                          -14-
nature of the test. Yet, as we discuss in the next part of this opinion, in further defining
"serious health condition" to require an "incapacity requiring absence from work,"
Congress and the DOL have devised protections for the employers that choose to use
them. See 29 C.F.R. § 825.114(d) (1993) ("The scope of 'serious health condition' is
further clarified by the requirements of the Act that the health care provider may be
required to certify . . . that 'the employee is unable to perform the functions of the
position of the employee.'").

        Under the regulatory test promulgated by the DOL in the interim final rule, as
interpreted in light of the final rule and relevant DOL opinions, there are no genuine
fact issues on the question of whether Thorson received "continuing treatment" under
the FMLA for her February 1994 illness. Thus, she met this part of the test for a
"serious health condition."

                                            B.

       Gemini contends that, even if Thorson met the "continuing treatment" part of the
definition of "serious health condition," she has not shown that her condition resulted
in an "incapacity requiring absence from work." 29 C.F.R. § 825.114(a)(2) (1993).
It may well be that Thorson's illness did not actually require that she be absent from
work, but because the company did not resort to the protections for employers provided
by the FMLA to address just this sort of situation, there is no genuine issue of fact on
this part of the "serious health condition" question.

       An employee need not invoke the FMLA by name in order to put an employer
on notice that the Act may have relevance to the employee's absence from work. See
id. § 825.302(c) (1993). "Under the FMLA, the employer's duties are triggered when
the employee provides enough information to put the employer on notice that the
employee may be in need of FMLA leave." Browning v. Liberty Mut. Ins. Co., 178
F.3d 1043, 1049 (8th Cir.), cert. denied, 120 S. Ct. 588 (1999). Thorson was absent

                                            -15-
for more than three days with notes from her physician, written on two different
occasions within that period of absence, indicating that she was not to work. At that
point, Gemini became obligated either to count Thorson's absence as FMLA leave
under the "serious health condition" provision or to follow the procedures set out in the
statute and the regulations designed to prevent employee abuse of the Act. Cf. Bailey
v. Amsted Indus., Inc., 172 F.3d 1041, 1046 n.6 (8th Cir. 1999) (concluding that
employee's notice obligations under the FMLA were not met where employee's written
medical excuses "were only given after the fact in response to disciplinary proceedings,
not 'as soon as practicable' after the missed work"). That is, Gemini could have
initiated the FMLA's certification process before summarily terminating Thorson. See
29 U.S.C. § 2613; 29 C.F.R. § 825.305 (1993). Had it done so, it may have been able
to determine that Thorson did not have a "serious health condition" within the meaning
of the FMLA.

        Under the regulations,9 an employer is permitted to require an employee who
might be qualified to receive FMLA leave to provide a certification issued by the
employee's health care provider, detailing such information as the diagnosis and the
date and duration of the condition. See 29 C.F.R. § 825.306(a) (1993). The
"certification must also include either a statement that the employee is unable to
perform work of any kind, or a statement that the employee is unable to perform the
essential functions of the employee's position." Id. § 825.306(b). To prevent abuse of
FMLA leave, the employer may require a second opinion from a health care provider
of the employer's choice and at the employer's expense. Id. § 825.307(a). In the event
the first two opinions conflict, a third, binding opinion may be obtained from a health
care provider agreed to by both parties, again paid for by the employer. Id.
§ 825.307(c). The responsibility to request FMLA certification is the employer's.
Gemini never sought such certification, notwithstanding that Thorson had timely


      9
        In the circumstances of this case, any differences between the interim and final
regulations in the areas of notice and certification are not significant.
                                          -16-
presented her employer with two notes from her physician indicating, without further
explanation, that she was not to work until certain dates.

       We agree with the District Court that, in these circumstances, Gemini cannot
show that there is a genuine issue of fact regarding Thorson's incapacity during the
February absences, although it may have been able to do so (or even to prevail on this
issue) had it availed itself of the protections provided for within the FMLA. As it was,
in defending against Thorson's motion for summary judgment, Gemini had to rely upon
a physician's evaluation of Thorson performed many months after the termination and
for purposes of this litigation, which stated that there was no obvious reason Thorson
should have missed work in February 1994, and upon a psychologist's opinion, based
on an evaluation made two years after Thorson's termination, that Thorson's physical
problems were manifestations of a psychological problem. In the face of the
contemporaneous notes from Thorson's physician indicating that she was not to work,
we agree with the District Court that Gemini cannot show, with its evaluations made
long after the fact, that there remains a genuine issue of material fact on the question
of Thorson's capacity to perform her job.

       Given the sum of our conclusions regarding the three-part definition of "serious
health condition" under the FMLA, as that definition applies to the undisputed facts of
this case, we conclude that the District Court was correct in granting Thorson summary
judgment on the issue of FMLA liability.

                                          C.

       For its next point on appeal, Gemini contends that the Magistrate Judge erred in
excluding the testimony and report of Gemini's expert Dr. Jane Cerhan, a
neuropsychologist, on the question of damages. The court granted Thorson's motion
in limine and excluded the evidence. We review the decision to exclude evidence for


                                          -17-
a clear and prejudicial abuse of the trial court's discretion. See Allen v. Entergy Corp.,
193 F.3d 1010, 1015 (8th Cir. 1999).

       "Gemini's position was that [Thorson's] mental condition made her
unemployable, and thus evidence of her condition should have been considered when
determining damages." Brief of Appellant Gemini at 37. Dr. Cerhan's testimony and
report, presented to the Magistrate Judge in an offer of proof, made it clear that she
believed Thorson to have a problem with somatization. That is, Dr. Cerhan thought
that, over the years, Thorson's mental states (e.g., depression, stress) had been
converted into physical symptoms (e.g., stomach pain and other ailments). The court
granted Thorson's motion in limine because Gemini had designated the expert to testify
about Thorson's alleged emotional or mental suffering, not about her alleged
unemployability as a limitation on damages. See Trial Transcript at 274. The
Magistrate Judge also indicated that he had read the report and noted the emphasis the
report placed on the lack of emotional harm suffered by Thorson as a result of losing
the job at Gemini. See id. Although the Magistrate Judge did not explicitly say as
much, it appears Dr. Cerhan's testimony and report were excluded under Federal Rule
of Civil Procedure 26(a)(2)(B) because she was not designated as an expert on the
question of damages and because the pretrial report prepared by Dr. Cerhan did not
"contain a complete statement of all opinions to be expressed." The court said, "I do
see references to somatization on the last page of her report, but the references in the
report are references to the reasons why she did not believe that the Plaintiff has
suffered emotional harm." Trial Transcript at 274. Moreover, there was a question of
relevance. The issue of emotional harm to Thorson, or the lack thereof, related to a
non-FMLA claim and was out of the case long before the trial on damages.

      Further, even if the evidence should have been allowed, the exclusion of Dr.
Cerhan's testimony and report was not prejudicial to Gemini. We note, as did the
Magistrate Judge, that Dr. Cerhan did not suggest the conclusion for which Gemini
claims it wanted the evidence admitted. In neither her report nor her proffered

                                           -18-
testimony did Dr. Cerhan conclude, or even imply, that Thorson's "mental condition
made her unemployable." Brief of Appellant Gemini at 37. Dr. Cerhan merely stated
that a somatization problem might well result in attendance issues at work. Thorson's
history of excessive absenteeism before, during, and after her employment with Gemini
was fully a part of the record, and the Magistrate Judge duly noted Thorson's
attendance problems at Gemini and at later places of employment. See Order of Feb. 2,
1999, at 4-5. In these circumstances, we cannot say that the court "exclude[d] evidence
of a critical nature, so that there is no reasonable assurance that the [fact-finder] would
have reached the same conclusion had the evidence been admitted," First Sec. Bank
v. Union Pac. R.R., 152 F.3d 877, 879 (8th Cir. 1998) (quoting Adams v. Fuqua Indus.,
Inc., 820 F.2d 271, 273 (8th Cir. 1987)) (alterations ours), especially where, as here,
the court has assumed the role of fact-finder in a bench trial.

     We hold that the Magistrate Judge did not abuse his discretion to the prejudice
of Gemini in excluding Dr. Cerhan's testimony and report from the trial on damages.

                                            D.

       Gemini's final issue on appeal, that Thorson should not collect costs and attorney
fees upon a reversal on the question of liability, is obviously of no force in the face of
our affirmance of the District Court's decision to grant summary judgment to Thorson
on the issue of FMLA liability.

                                           III.

       We turn now to the issues raised by Thorson in her cross-appeal, all of which
relate to the Magistrate Judge's award of damages.

                                            A.


                                           -19-
       Thorson first claims she was entitled to an award of liquidated damages. Under
the FMLA, the defendant employer "shall be liable to any eligible employee affected
[by a violation of the Act] . . . [for] an additional amount as liquidated damages equal
to the sum of the amount" of other damages and interest awarded pursuant to
§ 2617(a)(1)(A)(i) and (ii) of the Act. 29 U.S.C. § 2617(a)(1)(A)(iii). But there is an
exception to this otherwise mandatory call for liquidated damages. If the employer can
"prove[] to the satisfaction of the court that the" FMLA violation "was in good faith and
that the employer had reasonable grounds for believing" that its behavior was not in
violation of the FMLA, then the court in its discretion may decline the award of
liquidated damages. Id. The court here found the necessary good faith, and opted in
its discretion to deny Thorson liquidated damages. We review for an abuse of that
discretion.

       The Magistrate Judge concluded that Gemini acted in good faith in believing that
firing Thorson was not a violation of the FMLA. As the court pointed out, the law was
relatively new and had been in effect for just over six months when Gemini terminated
Thorson's employment. The owner and president of Gemini (who was the final arbiter
of the decision to fire Thorson) was aware of the new law and had made efforts to get
a copy of the interim regulations so as to include information about the FMLA in the
March 1994 revision of Gemini's employee manual. It is true that Gemini neglected to
ask Thorson for certification of her "serious health condition," and that omission has
proved to be a problem for Gemini on the question of FMLA liability. But it does not
demonstrate that Gemini acted in bad faith in terminating an employee who had a
history of excessive and disruptive absences. Moreover, when the District Court
looked at the facts of this case the first time, without the benefit of the DOL's 1996
opinion letter, it granted summary judgment for Gemini on Thorson's claim. We agree
that the District Court's first decision on liability is compelling evidence of Gemini's
objectively reasonable belief, to the extent such belief may be relevant, that it was not
violating the FMLA when it terminated Thorson. The Magistrate Judge did not clearly
err in finding that Gemini has met its burden of proving that those who had

                                          -20-
responsibility for Thorson's termination acted in good faith and with reasonable grounds
to believe they were not violating the FMLA when they terminated Thorson. Therefore
the court did not abuse its discretion in declining to award liquidated damages to
Thorson.

                                          B.

      Thorson contends that the Magistrate Judge erred because he did not include in
the backpay award any amount for lost overtime wages. Thorson had worked an
average of sixty-five hours of overtime in 1992 and 1993, and argues that the court
should have included overtime pay for sixty-five hours per year in the award of
backpay. For its part, Gemini asserts that any award of overtime backpay should be
reduced by the value of the hours of work lost as a result of Thorson's absenteeism.

       Thorson's contention that she would have worked overtime in each of the four-
plus years between February 1994 and the time of the trial on damages in August 1998,
had she remained at Gemini, is speculative, and the number of any such overtime hours
is even more so. We see no error in the court's failure to award an amount for overtime
backpay that would be little more than guesswork.

                                          C.

       The focus of Thorson's challenge to the amount of frontpay awarded is a job she
had with Northern Engraving in Spring Grove, Minnesota, beginning in January 1997.
She worked at Northern for fourteen months and then quit because six months earlier
she and her husband had moved to another town, increasing the length of her commute
to Northern. She also testified that she did not like the night shift or the amount of
overtime she was expected to work, and that she had found other employment. As the
court noted, however, she soon left that other employment, claiming that it bothered her
back, but did not reapply to Northern. The Magistrate Judge found that Thorson's pay

                                          -21-
rate at Northern was increasing much faster than it had been at Gemini. The court
decided that, within one year from the trial on damages, Thorson would have been
making the same wage at Northern, had she stayed, as she was making when she left
Gemini, with similar benefits. The Magistrate Judge awarded Thorson an hourly wage
differential of $0.96 for one year of straight time (no overtime) as frontpay. Thorson
challenges the amount on several grounds. Because frontpay is an equitable remedy,
we review the court's decisions regarding such a remedy for an abuse of discretion.
See Smith v. World Ins. Co., 38 F.3d 1456, 1466 (8th Cir. 1994) (ADEA case);
Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir. 1993) (§ 1983 case).

       Thorson insists that, as a part of the frontpay award, she is entitled to one year's
overtime pay and one year's profit sharing, calculated for the year that would begin
upon the end of the trial on damages. We think the overtime frontpay claim is even
more speculative than the claim for overtime backpay. As for the claim for profit
sharing, Thorson seeks $2114.23, an amount evidently based on the profit-sharing
information available at the time of trial, or soon after, for Gemini's then most recent
fiscal year (1997-98). The court awarded Thorson $8318.75 in lost profit-sharing
benefits, in a category separate from either backpay or frontpay. We will assume this
was for the backpay period alone (the court did not include its calculations in its order),
and that no amount was included for profit-sharing "frontpay." In any event, as with
the overtime issues, we conclude that the court did not abuse its discretion because it
chose neither to predict that, for the year following the trial on damages, Gemini would
be profitable and would continue to share profits with its employees, nor to divine the
amount of profit sharing that might have been due Thorson had she still been employed
at Gemini.

      Thorson further claims that the pay differential for the award of frontpay should
be $2.12 per hour based on the pay she received at the last job she had before trial, a
one-week job she acquired through a temporary agency, and that she should receive
frontpay for twelve years, until she reaches age sixty-two, instead of for one year. We

                                           -22-
disagree. The court was fully justified in choosing a pay differential based on
Thorson's job at Northern Engraving: it was a factory job like the one she had at
Gemini, it was the job she held the longest between February 1994 and trial, and she
left it voluntarily. Further, the Magistrate Judge's finding that Thorson's salary at
Northern would have matched her predicted salary at Gemini within one year is not
clearly erroneous. Thus the court's decision to award one year of frontpay at a rate of
$0.96 per hour, based on factual findings that are not clearly erroneous, was not an
abuse of the court's discretion.

                                          D.

       Finally, Thorson challenges the Magistrate Judge's decision to reduce her
damages for failure to mitigate. Again, we discern no clear error in the court's
calculations. See Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1106 (8th Cir. 1996)
(reviewing mitigation finding for clear error in ADEA case). The court reduced the
award not only by the amounts she actually earned (or, in the case of unemployment
compensation, collected) during the backpay period, but also because of decisions she
twice made to quit employment voluntarily, when the working conditions of those
positions were not unreasonable.10 Given Thorson's post-Gemini work history (and
her surprising inability to find entry-level work even in the booming economy until her
unemployment insurance expired, twice), it could be argued that the Magistrate Judge




      10
         Thorson quit a number of jobs in the period between leaving Gemini and the
trial, but the Magistrate Judge reduced the backpay award for failure to mitigate on
only two of the voluntary terminations. Evidently, the court found persuasive Thorson's
intimations that the working conditions were unreasonable at the other jobs she quit
(e.g., she did not feel she had the proper training for home health care of a young
patient; inspecting raw eggs made her feel nauseated; she did not like handling cash at
a convenience store at night, especially when she heard of the murder of a convenience
store clerk not far away).
                                         -23-
was generous in not reducing the backpay award further for Thorson's failure to
mitigate. In any case, we see no error in the court's decision on mitigation.

                                      IV.

      The judgment and orders of the District Court and the Magistrate Judge are
affirmed in all respects.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -24-
