UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROSEMARY CROMICH MCDONNELL,
Plaintiff-Appellant,

v.                                                               No. 96-1661

MILLER OIL COMPANY, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-95-638-2)

Argued: March 3, 1997

Decided: April 3, 1997

Before RUSSELL, WILKINS, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jack Elmer Ferrebee, Virginia Beach, Virginia, for
Appellant. Stanford Beryl Adler, ADLER, ROSEN & PETERS, P.C.,
Virginia Beach, Virginia, for Appellee. ON BRIEF: Lisa Ehrich,
ADLER, ROSEN & PETERS, P.C., Virginia Beach, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Rosemary Cromich McDonnell appeals the district court's disposi-
tion of her Family Medical Leave Act of 1993 ("FMLA")1 claim
brought against her former employer, Miller Oil Co.("Miller Oil"). At
trial, McDonnell argued that when she returned from maternity leave,
Miller Oil did not make available to her the same or an equivalent
position.2 The jury found that Miller Oil violated the FMLA, but fixed
McDonnell's damages at $0.00. She moved for a partial new trial on
the issue of damages, which the district court denied. McDonnell
appeals.

I.

McDonnell was a financial analyst with Miller Oil until December
1994, when she left on maternity leave. Her leave ended in February
1995. McDonnell testified that when she returned to Miller Oil, she
was told that "she no longer had a job at Miller Oil." On the other
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1 The FMLA requires certain employers to allow employees up to 12
weeks of leave for attending to family medical situations, including preg-
nancy. 29 U.S.C.A. § 2601-2618 (West Supp. 1996).
2 The FMLA establishes that

         any eligible employee . . . shall be entitled, on return from such
         leave--

         (A) to be restored by the employer to the position of employ-
         ment held by the employee when leave commenced; or

         (B) to be restored to an equivalent position with equivalent
         employment benefits, pay, and other terms and conditions of
         employment.

Id. § 2614(a). Employees are allowed to sue employers who violate the
FMLA. Id. § 2617.

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hand, Mike Miller, her supervisor, testified that McDonnell told him
she did not want her old job back, and that she asked to return to work
part-time, but refused the part-time positions he offered. Miller fur-
ther testified that he and McDonnell agreed to call the separation a
lay-off, so that McDonnell would qualify for unemployment benefits
from the Virginia Employment Commission ("VEC").

At the close of evidence, the jury returned a verdict in favor of
McDonnell. The jury found that Miller Oil violated her rights under
the FMLA by failing to offer her the same or an equivalent job at the
end of her maternity leave. However, the jury fixed her damages at
$0.00. Evidence presented at trial established that McDonnell failed
to regularly read the help wanted ads in the newspaper; never con-
tacted employment agencies; failed to apply for a job referred to her
by the VEC (thus forfeiting one week's unemployment compensa-
tion); and never contacted the placement offices at either the College
of William and Mary, where she earned an MBA in finance, or Old
Dominion University, where she received her undergraduate degree.
Other evidence at trial showed that during the eleven-month period
from February 1995 until the trial, McDonnell sent out between 80
and 100 resumes. She mailed the resumes without cover letters, and
simply addressed them to the personnel departments of companies in
her area, sometimes without even knowing if the company was hiring.

After the jury was excused, the district court announced its inten-
tion to award nominal damages of $1.00. McDonnell stated she would
move for a judgment as a matter of law3 or a partial new trial on the
issue of damages,4 and so the district court delayed entering judg-
ment.

The district court informed McDonnell that it would not entertain
argument on her plea for equitable relief until the motion for judg-
ment as a matter of law was decided. Thereafter, McDonnell formally
withdrew that motion, and submitted no further argument. The district
court then acted on the remaining issues in the case. It found the
defendant had acted in bad faith, and awarded liquidated damages of
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3 Fed. R. Civ. P. 50(a).

4 Fed. R. Civ. P. 59.

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$1.00, doubling McDonnell's damages award to $2.00, plus interest.
It also declined to award McDonnell front pay. McDonnell then filed
a motion for a partial new trial on damages, which the court denied.

II.

McDonnell's appeal raises three issues. First, she contends that the
jury's award of no damages was a miscarriage of justice or against the
clear weight of the evidence, requiring a new trial. Second, she claims
that the district court improperly instructed the jury on her duty to
mitigate her damages. Finally, she claims the district court erred in
refusing to grant her equitable relief in the form of front pay and rein-
statement. All of these issues were encompassed in her motion for a
partial new trial on the issue of damages, and fully considered by the
district court. Our review, therefore, is limited to whether the district
court abused its discretion in denying McDonnell's motion for a new
trial.5

In its opinion and order denying the partial new trial, the district
court found that the evidence supported the jury's award of no dam-
ages, and that the award was not a miscarriage of justice. It further
found that the submitted jury instruction did not constitute plain or
fundamental error, and that McDonnell failed to challenge the instruc-
tion at trial. Furthermore, the record revealed that McDonnell's coun-
sel specifically agreed to the language of the instruction. Finally,
McDonnell testified that she did not wish to be reinstated, and she
never requested reinstatement. Left with front pay as the only equita-
ble remedy, the district court did not award front pay for two reasons.
First, reinstatement is the preferred equitable remedy.6 Second, the
district court found McDonnell's subjective unwillingness to accept
reinstatement to be unreasonable.

Having carefully reviewed the record, we hold that the district
court did not abuse its discretion in denying McDonnell's motion for
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5 Chesapeake Paper Products Co. v. Stone & Webster Eng'g Co., 51
F.3d 1229, 1237 (4th Cir. 1995).

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

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a partial new trial on the issue of damages. Accordingly, we affirm
the judgment of the district court.

AFFIRMED

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