                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 29 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JENNIFER LANE,                                   No. 13-35954

              Plaintiff - Appellee,              D.C. No. 2:11-cv-00309-RHW

  v.
                                                 MEMORANDUM*
GRANT COUNTY, a Washington
municipal corporation,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                        Argued and Submitted July 6, 2015
                               Seattle, Washington

Before: KLEINFELD, NGUYEN, and FRIEDLAND, Circuit Judges.

       Jennifer Lane was awarded back pay, liquidated damages, attorney’s fees,

and costs after a jury found that her employer, Grant County, Washington (the

“County”) violated her rights under the Family and Medical Leave Act (“FMLA”)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
when it refused to restore her to the same or similar position after she returned

from FMLA leave. 29 U.S.C. § 2614. The County appeals the district court’s

denial of summary judgment upon reconsideration to the County on the

employment restoration claim, the district court’s denial of its motion for a new

trial or to amend judgment based upon improper jury instructions, and the award of

liquidated damages, front pay, costs and fees. We affirm.



      “[W]e may not review a denial of summary judgment after a jury has

decided the case.” Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500,

1506 (9th Cir. 1995) (citing Lum v. City & Cty. of Honolulu, 963 F.2d 1167,

1169–70 (9th Cir. 1992) (denying review of denial of summary judgment after a

jury verdict for the moving party), and Locricchio v. Legal Servs. Corp., 833 F.2d

1352, 1358–59 (9th Cir. 1987) (denying review of denial of summary judgment

after a jury verdict against the moving party)). Therefore, we do not consider the

denial of summary judgment after reconsideration.



      We review a district court’s decision concerning a motion for a new trial and

the district court’s formulation of civil jury instructions for an abuse of discretion.

McClaran v. Plastic Indus., Inc., 97 F.3d 347, 354 (9th Cir. 1996). We also review


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a district court’s refusal to amend or alter a judgment for an abuse of discretion.

Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).



      It was not an abuse of discretion for the district court to remove Jury

Instruction 2.3 about the FMLA key employee defense, 29 U.S.C. § 2614(b). The

County expressly consented to the elimination of Instruction 2.3 and therefore

waived the right to appellate review of that decision. Fed. R. Civ. P. 51; Shaw v.

City of Sacramento, 250 F.3d 1289, 1293 (9th Cir. 2001). Comments such as “I

don’t think any of the Key Employee issues should be offered in this trial,” “the

whole Key Employee thing . . . let’s get it out” and “I think we can eliminate 2.3,”

amount to what the court would reasonably understand to be a knowing and

deliberate choice by the County not to so instruct the jury.



      We review the award of front pay and liquidated damages under the FMLA

for an abuse of discretion, and review for clear error the factual findings related to

the front pay award. Traxler v. Multnomah Cty., 596 F.3d 1007, 1014 n.4 (9th Cir.

2010). “The FMLA is unambiguous that once it is determined that an employer

violated the statute, liquidated damages will be awarded.” Id. at 1016. A

prevailing plaintiff is entitled to liquidated damages unless the employer can prove


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that it acted in “good faith” and had “reasonable grounds for believing that [its

action] was not a violation” of the FMLA. Id. at 1015 (alteration in original)

(quoting 29 U.S.C. § 2617(a)(1)(A)(iii)).



      The district court did not abuse its discretion by awarding liquidated

damages and front pay. The County did not prove that it acted in good faith and

had reasonable grounds for believing that failing to restore Lane to any position at

the County after her FMLA leave was not a violation of the FMLA. The County

did not comply with 29 C.F.R. § 825.219 when the County decided not to restore

Lane. The County’s failure to “explain the basis” for its assertion of “substantial

and grievous economic injury” in its letter, as subsection (b) requires, makes it

ineligible for the key employee defense. Without the defense, it was not

reasonable to decline to restore Lane to a comparable position.



      The County’s argument against attorney’s fees and costs cites only “the

erroneous jury verdict” as a reason to deny Lane this award. “We give deference

to a jury verdict, reviewing all evidence on appeal of those claims in the light most

favorable to the verdict.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th

Cir. 2009). The court did not abuse its discretion in omitting Instruction 2.3, and


                                            4
we do not find the jury’s verdict otherwise erroneous. We therefore also decline to

disturb the district court’s corresponding award of fees and costs.

      AFFIRMED.




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