       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2   Arban v. West Publishing Corp.         Nos. 01-2278/2370
    ELECTRONIC CITATION: 2003 FED App. 0341P (6th Cir.)
                File Name: 03a0341p.06                    Motowski Lund, PEPPER HAMILTON, Detroit, Michigan,
                                                          for Appellant. William G. Tishkoff, Marvin B. Bartlett,
                                                          LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan,
UNITED STATES COURT OF APPEALS                            for Appellee.
              FOR THE SIXTH CIRCUIT                                           _________________
                _________________
                                                                                  OPINION
 DANIEL R. ARBAN,                 X                                           _________________
            Plaintiff-Appellee/ -                            JULIA SMITH GIBBONS, Circuit Judge. Daniel R. Arban
              Cross-Appellant, -                          brought this action against West Publishing Corporation
                                   -  Nos. 01-2278/2370
                                   -                      (West) pursuant to the Family Medical and Leave Act
           v.                       >                     (FMLA), 29 U.S.C. § 2611 et seq. Arban alleged that West
                                   ,                      violated the FMLA by terminating him while he was on
                                   -                      medical leave and by failing to reinstate him at the
 WEST PUBLISHING CORP .,           -                      completion of the leave. Arban also alleged that West
         Defendant-Appellant/ -                           violated the FMLA by interfering with, restraining, or
               Cross-Appellee. -                          denying him his right to take an FMLA leave. The case was
                                   -                      tried before a jury, which returned a verdict in favor of Arban.
                                  N                       West then filed a motion for judgment as a matter of law or
      Appeal from the United States District Court        for a new trial, which the district court denied. West appeals.
     for the Eastern District of Michigan at Detroit.     Arban cross-appeals the district court’s denial of front pay
  No. 99-73520—Bernard A. Friedman, District Judge.       and liquidated damages and the district court’s grant of a stay
                                                          without bond. For the reasons set forth below, we affirm the
                 Argued: June 13, 2003                    district court’s denial of West’s motion for judgment as a
                                                          matter of law or for a new trial, reverse and remand the trial
        Decided and Filed: September 24, 2003             court’s denial of an award of liquidated damages, affirm the
                                                          district court’s denial of Arban’s claim for front pay, and
Before: KEITH, MOORE, and GIBBONS, Circuit Judges.        affirm the district court’s grant of a stay without bond.

                  _________________                                                      I.

                       COUNSEL                              Arban began working as a sales representative for Lawyer’s
                                                          Cooperative Publishing in 1995. Lawyer’s Cooperative
ARGUED: Abraham Singer, PEPPER HAMILTON,                  Publishing merged with West in 1996. Arban has a
Detroit, Michigan, for Appellant. William G. Tishkoff,    documented history of gastrointestinal problems, including
LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan,          chronic and severe esophagitis and irritable bowel syndrome,
for Appellee. ON BRIEF: Abraham Singer, Michelle          which began in the middle of 1995 or early 1996. In 1997,

                            1
Nos. 01-2278/2370         Arban v. West Publishing Corp. 3        4     Arban v. West Publishing Corp.        Nos. 01-2278/2370

Arban was promoted from a field sales representative to a         resulted in Dan benefitting from the sale.” Wolfe, Nicolini,
regional field sales manager. In this position, he supervised     and Carlson then inquired about the “[i]nconsistency with
other representatives, while continuing to make sales. In         [Arban’s] reported numbers.” According to Wolfe, Arban
January 1998, Arban voluntarily returned to the position of       admitted “lack of follow up in getting his orders in.” Wolfe
field sales representative in order to spend more time with his   also asked Arban about “sending in orders that do not have
children. At that time Arban’s immediate supervisor was           signatures,” and Arban admitted that on at least nine
Robert Wolfe, who held the position of regional field sales       occasions he “did not talk to the decision maker to get a
manager. Wolfe, in turn, reported to Nick Nicolini, who           verbal approval.” Wolfe explained to Arban that “this is not
served as senior regional field sales manager, and to James       allowable for Field Reps and is an abuse of our process.” In
Colantino, who served as director of sales.                       his e-mail, Wolfe noted that Arban also “admitted to adding
                                                                  products to the order without the customer’s permission.”
  In February 1998, Richard Carlson, who had replaced             Wolfe described this as an “event that should cause
Arban as a regional field sales manager, learned that the         termination.” Wolfe concluded the e-mail with the following
preexisting account of the Hervas, Sotos law firm in suburban     statement:
Chicago had been cancelled, that a new account had been
generated in the name of James Sotos, and that Arban had              We have numerous examples of gross negligence, fraud,
misrepresented this account as “a new sales activity.”                deceit and lack of moral character. These are not areas in
Carlson brought this information to the attention of Wolfe,           which corrective action can be taken. I can merely
Nicolini, and Arban. On April 1, 1998, Arban received a               monitor him more closely. I recommend that Dan be
warning letter from Wolfe, which stated:                              terminated as an employee of West Group in the near
                                                                      future. I also believe that everyone has a right to dignity
  I cannot overstate the seriousness of the situation. . . .          and respect, Dan should be given the chance to resign.
  West Online Solutions will now be responsible for
  supporting an account where the revenue has been cut in             I welcome any and all feedback from my fellow
  half. . . . This letter will warn you that misrepresentations       Managers to see if I have missed any major elements that
  concerning an account are unacceptable to WEST                      would allow Dan to continue. His production in [sic]
  GROUP. I am confident that there will be no future                  needed, I like the fellow and he truly has great sales
  occurrence of such activity. However, I must include                skills, unfortunately, the negative side outweighs the
  that any future occurrence will subject you to further              positives. If I have not been open minded to an
  disciplinary action, up to and including termination from           alternative that I should consider, please let me know. I
  West Group.                                                         have anguished over this decision and keep on coming up
                                                                      with no other workable solutions.
  On December 16, 1998, Wolfe, Nicolini, and Carlson met
with Arban to discuss additional violations of company policy     (emphasis added). At trial, Wolfe testified that Colantino
committed by Arban and customer complaints that allegedly         “had the final authority to make the decision to terminate Mr.
had occurred in the intervening months. According to an e-        Arban.”
mail sent to Colantino by Wolfe the following day, the
meeting began “with a reminder that Dan has been involved           In an e-mail to Colantino, Nicolini, and Wolfe sent on the
in switching names of accounts to achieve new sales that          evening of December 17, Carlson noted that he “concur[red]
Nos. 01-2278/2370        Arban v. West Publishing Corp. 5          6    Arban v. West Publishing Corp.         Nos. 01-2278/2370

in [Wolfe’s] summary” and added that he “believe[d] that           throat. Arban called his physician’s office and described his
[Wolfe’s] conclusion is well-supported.” At trial, Carlson         condition to an associate of his physician, who called in a
explained that he believed that “Arban should be terminated        prescription to a pharmacy near Arban’s residence. The
from the company” as a result of “[t]he account issues; the        office notes from the call state “anxiety reflux . . . wants time
misrepresentations of accounts to the company; the trouble to      off work.” Arban picked up the medication later that day.
the customers; the problems exceeded the good from Dan.”
At trial, Nicolini also testified that he agreed with the            On December 24, Arban contacted Joyce Van Sciver, a
recommendation to terminate Arban “[b]ecause of all the            human resources representative for West. Arban “explained
ongoing things that Dan Arban had done.” Finally, Colantino        what had happened” and that he would “be needing to take
testified that after conferring with Wolfe, Nicolini, and Ira      some time off.” Arban was told that there were no special
Tiffenberg, a director of human resources for West, he             forms needed to request an FMLA leave, but that he should
decided to terminate Arban in the middle of December.              contact West’s disability insurance carrier. Arban also told
Colantino testified that in the days following December 17, he     Van Sciver that he had an appointment to see his physician on
communicated to Nicolini his decision to terminate Arban           December 28. A “leave of absence form” prepared by Van
after the holidays. Wolfe also testified that “within a few        Sciver on December 29 indicates that Arban’s leave began on
days of the December 16 meeting” Nicolini told him that “we        December 25, 1998. A January 19 letter to Arban from
should go ahead and terminate after the holidays.”                 West’s disability insurance carrier states that Arban’s claim
                                                                   for short-term disability benefits was approved for the period
   On December 21, Wolfe accompanied Arban on a “field             between January 4 and January 21.
ride.” At trial, Wolfe testified that the “Field Ride Recap” he
prepared after the field ride was “simply a review of what I         On December 28, Arban visited his physician, who
saw that day with one customer” and “not a general                 provided him with a note stating that he had been treated for
evaluation of Mr. Arban.” According to the recap, Arban            “severe esophagitis and stress” and adding that Arban would
received a rating of “meets expectations” in all areas. Wolfe      be “unable to work for 3wks.” Arban hand-delivered medical
testified that he did not “tell Arban that all the problems that   certification forms he had received from West’s disability
were raised at the December 16 meeting were cured,” nor did        insurance carrier to his physician’s office on December 29,
he tell Arban that “everything with him was in good                and Arban’s physician completed the forms on January 8.
standing.” However, Arban testified that after the ride, Wolfe
made the following notation at the bottom of the recap:               Arban notified Wolfe of his medical leave via telephone on
“visited five accounts, all five accounts corrected.” The          December 28. In an e-mail to Nicolini sent that day, Wolfe
handwritten comments on the form provided in the joint             stated, “I have not called Dan regarding this yet, nor have I
appendix are illegible. Arban also testified that at no point      spoke with Jim about this. I would think the first move would
during the field ride did Wolfe indicate that he “hadn’t           be to check with HR.” Arban also notified Wolfe of his
properly followed up from the 16th.” Arban stated that Wolfe       medical leave via e-mail on December 28. Wolfe forwarded
told him that he was “very satisfied” and did not indicate that    Arban’s e-mail to Nicolini shortly after it was received, with
any action would be taken against Arban.                           the words, “Here is a message from Dan. I would think you
                                                                   also have some questions. Let’s talk and do the right thing.”
   Early in the morning of December 23, according to his
testimony, Arban awoke with “a severe amount of acid” in his
Nos. 01-2278/2370        Arban v. West Publishing Corp. 7        8     Arban v. West Publishing Corp.        Nos. 01-2278/2370

  On December 29, Arban received a telephone call from                                         ***
Don Owens, a sales representative, who explained that “Bob
Wolfe had instructed him to get these hot lists, to get the          Q. Okay, I want to give you a chance to tell the jury
different accounts and pending sales he could work with.”               how it ended. What happened to conclude your
Later that day, Wolfe called Arban at home. Arban testified             phone conversation with Mr. Wolfe on the 30th?
that Wolfe “wanted to kind of follow up on Don too to make
sure those sales got in, and he wanted to find out what it was       A. We were in the dialogue and Bob – you know, I
that I had done and how much I had given Don so he could                explained to Bob that I felt very uncomfortable,
kind of track it.”                                                      based on the information that I knew about the
                                                                        FMLA and based on what Hartford had told me, I
  According to Arban, Owens called again the following day              wasn’t supposed to be doing any work, that any
“to check up with leads again.” Arban testified that Wolfe              work I did could constitute jeopardizing my benefits
also called on the afternoon of December 30. At trial, Arban            that I would get. So I told him that I felt that he was
described the conversation:                                             really putting me on the spot here because I knew I
                                                                        wasn’t supposed to be working; my doctor said I
  Q. Okay, could you describe for the jury the phone call               wasn’t supposed to be working. And what he was
     that you had with Mr. Wolfe on the 30th?                           requesting was more than what I had given Don
                                                                        initially. And he was asking me to do quite a bit
  A. He was upset. I thought that I was giving him                      more and I didn’t think that was in the best interest
     minimal effort. He said that the few leads that I                  of what I was supposed to be doing at that point. I
     gave Don, you know, that was unacceptable, you                     think he said something like, you know, well, we’ll
     know, as a top performer, that I would have more                   see, and he slammed the phone down. The
     going than that and that I should be able to produce               conversation was over.
     a much more substantial list. And he said that he
     really needed me to put an effort towards it – really          According to Arban, on December 31, Owens called him at
     wanted me to come up with quite a bit, you know, as         home again and stated that “Bob asked me to give you a call
     much as I possibly could so again, he could make            and see if you’d reconsider.” Arban refused. On January 5,
     these sales number.                                         Arban received another call at home from Wolfe. Arban
                                                                 testified that Wolfe repeated his request that Arban provide
  Q. Did he describe why it was important to be doing            Wolfe with “different accounts that I can work so when you
     this at this time?                                          come back from your leave you’re ready to roll.” In response,
                                                                 Arban “explained that, again, I was certain that would be
  A. Well, we kind of knew – he reiterated just that it was      against what I was supposed to be doing. I appreciated the
     the end of the year and that there were – there was a       effort but, you know, that was not necessary. I would handle
     lot on the line for Jim Colantino and the exclusive         it when I got back.”
     users. There were a lot of points involved. People
     could win certain prizes and he wanted to make sure           Sometime between December 31 and January 3, Colantino
     that everybody got as much as they could.                   called Tiffenberg. Tiffenberg testified that Colantino
                                                                 “indicated at that time that Mr. Arban had applied for short-
Nos. 01-2278/2370        Arban v. West Publishing Corp. 9        10 Arban v. West Publishing Corp.         Nos. 01-2278/2370

term disability and wanted to know whether or not we could             Hartford said I was not supposed to do this. He said,
proceed – or he could proceed with the termination of Mr.              well, I’ll see about that. He’s going to call Hartford
Arban’s employment.” Tiffenberg consulted with West’s in-              and verify or check on whether or not that was to
house counsel, who concluded that “there were no issues in             take place – whether I could do that or not.
proceeding with the termination.” When asked at trial
whether he thought there was “any problem with terminating       According to Arban, Wolfe called him again later that day.
Mr. Arban during his leave,” Tiffenberg said no, and
explained that “it had no relationship to the reasons for the      Q. Okay, and what – go ahead. What was said to you
termination, and the termination we had made that decision            by Mr. Wolfe at that time?
prior back in mid-December before Mr. Arban even had
applied for leave.” However, Tiffenberg also testified that he     A. Whole different tone at this point. He was very
was not “aware of any records or e-mail that documents an             upset, told me that I – he had called, spoke to
actual decision being ordered by Mr. Colantino.”                      Hartford. They told him, you know, supposedly
                                                                      from what he said that I had to do this and that I,
   Late in the afternoon on January 6, Arban received another         you know, my – if not, then I was going against
telephone call from Wolfe. At trial, Arban described the              what was called insubordination.
conversation:
                                                                                             ***
  Q. All right. Go ahead. Will you describe that phone
     call?                                                         Q. Okay, well, go ahead. If you could just describe to
                                                                      the jury what was said in that phone conversation?
  A. Bob called me again and asked me to come out and
     meet with him, asked me to pick a spot where I                A. I asked Bob what was so important and why I had to
     thought I could drive out and meet him. And I,                   come and meet with him on this particular day at
     again, reiterated this to Bob, you know, I’m not                 this particular – you know, why I had to come and
     going to be able to do this. I can’t come to meet                do this. They said, Dan, what I want you to do is
     with you. He suggested coming to my house and                    gather all your materials. I want you to bring your
     meeting with me. I told him at this point, any work              computer, your laptop, and I want you to come out
     that I did I thought was a violation, and he became              and meet me. We’ll pick a spot and we’ll meet. I
     more and more insistent and said that it was not in              said this seems kind of unusual. You don’t need to
     violation, that I needed to do this, this was                    have all this material to go over hot lists that you’re
     something I had to do.                                           going to manage while I’m gone. And he said, Dan,
                                                                      I need you to get all your – he wouldn’t tell me
                             ***                                      basically what the reason was so I finally called and
                                                                      said, Bob, it sounds to me like you’re firing me. Are
  Q. Okay. How did the phone conversation conclude?                   you terminating me, Bob? And he said, yes.

  A. He said if I wanted – he asked me why I was                   Q. Did he make any mention about any of the materials
     unwilling to do that so I said I spoke with Hartford.            or the computer that you had at your house?
Nos. 01-2278/2370       Arban v. West Publishing Corp. 11       12 Arban v. West Publishing Corp.          Nos. 01-2278/2370

  A. Oh yeah. He said he wanted met you [sic] gather                   problem. I’ll come to you. Where would you like to
     my computer, any hot list, any company                            be? And I said I have no idea. He said, well, we’ve
     information, anything at all that belonged to West he             met before at the Weber. Why don’t we use the
     wanted me to gather, put in my car and meet him.                  Weber. . . . I said Fine. I said, I’ll meet you there
                                                                       and he said, Dan, you’ve got great reputation; you
  Q. And did you – go ahead. Can you just describe the                 know, employee file. He said, I were you, I’d be
     end of the conversation? Did you agree to do that?                worried about protecting that, being terminated. If
                                                                       you wanted to come in and offer to me a letter of
  A. No. I told him that I was certain that being on                   resignation, I would probably accept it at that point.
     medical leave, I was not supposed to do that. It
     would constitute work. And I asked him if, you               On January 6, Nicolini forwarded an e-mail from Wolfe
     know, what was so important and why he had to do           regarding Arban to Colantino. In the e-mail, Nicolini stated,
     this right now. I was simply going to be on leave for      “Below are the main issues we have regarding Dan Arban.”
     another week, why don’t we just wait until the end         Wolfe’s e-mail, which had been created earlier that same day,
     of the week and then I’d be back to work and we            began by stating, “You wanted an outline of events to
     could address whatever the reasons were then.              consider in terminating Dan Arban.” The e-mail went on to
                                                                describe the allegations against Arban, including
  Q. What did he say?                                           “misrepresentation concerning a new firm being started,” the
                                                                addition of “products to a signed contract,” double billing of
  A. He said no. He said, I want you to go and meet with        a customer’s account, the unsolicited sending of materials to
     me. . . . And he said, well, you know, Dan if I have       customers, and the “misrepresentation of when the trial period
     to, I will come to your house. We’ll do this at your       would start” with respect to another client. At trial, Colantino
     house. I’m going to have to terminate you in front         testified that he had no idea why Nicolini had sent him this e-
     of your own family. And I was concerned about              mail. Colantino also stated that the decision to terminate
     that. I have small kids.                                   Arban had been made before he received the e-mail. On
                                                                January 8, Arban prepared a letter of resignation, met Nicolini
When asked at trial whether it “would be a violation of the     and Wolfe, and handed his letter to Wolfe, who read it and
policy . . . that West had, that you couldn’t ask an employee   accepted it.
to do work-related services during their leave,” Wolfe
responded, “If the leave were granted, yes.”                      On July 14, 1999, Arban filed this lawsuit against West. In
                                                                October and November 2000, the case was tried before a jury.
  At trial, Arban described the final conversation that         West timely moved for judgment as a matter of law at the
occurred between himself and Wolfe on the evening of            close of all the evidence, which the district court denied after
January 6:                                                      the jury returned a verdict in favor of plaintiff in the amount
  Q. Did the subject of resignation come up?                    of $119,000. On March 2, 2001, the district court entered
                                                                judgment in favor of Arban in the amount of $119,000 plus
  A. No, not at this point. What he said to me was, where       $11,448.88 in interest, $85,656.73 in attorney’s fees, and
     do you want to meet? I said, well Bob, I know for a        $8,961.87 in costs. The district court declined to award front
     fact I’m not supposed to be going far. He said, no         pay or liquidated damages. On August 23, 2001, the district
Nos. 01-2278/2370         Arban v. West Publishing Corp. 13          14 Arban v. West Publishing Corp.          Nos. 01-2278/2370

court denied West’s renewed motion for judgment as a matter          and from § 2614(a)(1), which provides that “any eligible
of law or new trial. On September 17, 2001, West filed its           employee who takes leave . . . shall be entitled, on return from
notice of appeal. On September 27, 2001, Arban filed his             such leave (A) to be restored by the employer to the position
notice of appeal.                                                    of employment held by the employee when the leave
                                                                     commenced; or (B) to be restored to an equivalent position.”
                               II.                                   The “retaliation” or “discrimination” theory arises from
                                                                     § 2615(a)(2), which provides that “[i]t shall be unlawful for
  This court reviews de novo a district court’s denial of a          any employer to discharge or in any other manner
motion for judgment as a matter of law. Monday v. Oullette,          discriminate against any individual for opposing any practice
118 F.3d 1099, 1101 (6th Cir. 1997). This court does not             made unlawful by this subchapter.”
weigh the evidence, evaluate the credibility of witnesses, or
substitute its judgment for that of the jury. Instead, this court      The “entitlement” or “interference” theory is derived from
views the evidence in the light most favorable to the party          the FMLA’s creation of substantive rights. If an employer
against whom the motion is made and gives that party the             interferes with the FMLA-created right to medical leave or to
benefit of all reasonable inferences. The motion should be           reinstatement following the leave, a violation has occurred.
granted, and the district court’s decision reversed, only if         King v. Preferred Technical Group, 166 F.3d 887, 891 (7th
reasonable minds could not come to a conclusion other than           Cir. 1999).
one in favor of the movant. Wehr v. Ryan’s Family Steak
Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995).                      The issue is simply whether the employer provided its
                                                                       employee the entitlements set forth in the FMLA– for
  The FMLA entitles an eligible employee to as many as                 example, a twelve-week leave or reinstatement after
twelve weeks of leave during any twelve-month period if the            taking a medical leave. Because the issue is the right to
employee has a “serious health condition that makes the                an entitlement, the employee is due the benefit if the
employee unable to perform the functions of the position of            statutory requirements are satisfied, regardless of the
such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious                  intent of the employer.
health condition” is defined as “an illness, injury, impairment,
or physical or mental condition that involves (A) inpatient          Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st
care in a hospital, hospice, or residential medical care facility;   Cir. 1998).
or (B) continuing treatment by a health care provider.” Id. at
§ 2611(11). An employee need not specifically mention the               The substantive right to reinstatement provided in
FMLA when taking leave. All the employee must do is notify           § 2614(a)(1), however, “shall [not] be construed to entitle any
the employer that FMLA-qualifying leave is needed. 29                restored employee to . . . any right, benefit, or position of
C.F.R. § 825.303(b).                                                 employment other than any right, benefit or position to which
                                                                     the employee would have been entitled had the employee not
  Two distinct theories for recovery on FMLA claims exist.           taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Similarly, the
The “entitlement” or “interference” theory arises from               right to non-interference with medical leave also is not
§ 2615(a)(1), which states that “[i]t shall be unlawful for any      absolute. “[A]n employee who requests FMLA leave would
employer to interfere with, restrain, or deny the exercise of or     have no greater protection against his or her employment
the attempt to exercise, any right provided in this subchapter,”     being terminated for reasons not related to his or her FMLA
Nos. 01-2278/2370        Arban v. West Publishing Corp. 15         16 Arban v. West Publishing Corp.         Nos. 01-2278/2370

request than he or she did before submitting that request.”        The “Field Ride Recap” prepared after the ride also stated that
Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th      Arban “meets expectations” in all areas. In addition, the jury
Cir. 1998). An employee lawfully may be dismissed,                 considered an e-mail from Wolfe that Nicolini had forwarded
preventing him from exercising his statutory rights to FMLA        to Colantino on January 6, which stated, “You wanted an
leave or reinstatement, but only if the dismissal would have       outline of events to consider in terminating Dan Arban.”
occurred regardless of the employee’s request for or taking of     (emphasis added). While this e-mail is open to several
FMLA leave. Id.                                                    interpretations, the jury was entitled to conclude that West
                                                                   was continuing to study the matter and had not come to a final
   At trial, Arban argued that West denied him his substantive     decision by January 6. As the Seventh Circuit has observed,
right to reinstatement and interfered with his substantive right   “the timing of this decision could lead a fact finder to infer
to take FMLA leave. First, with respect to Arban’s                 that the employee would not have been fired absent her taking
reinstatement claim, Arban “must establish, by a                   of leave (if, for example, a supervisor who had been aware of
preponderance of the evidence, that he is entitled to the          problems with an employee did not decide to fire the
benefit he claims.” Rice v. Sunrise Express, 209 F.3d 1008,        employee until she took leave, and the supervisor based the
1018 (7th Cir. 2000).                                              firing on the incidents of which the employer had already
                                                                   been aware).” Kohls v. Beverly Enters. Wisconsin, Inc., 259
  [I]f the employer claims that the employee would have            F.3d 799, 806 (7th Cir. 2001). In this case, while the
  been discharged . . . the employee, in order to establish        evidence permitted differing inferences, sufficient evidence
  the entitlement protected by § 2614(a)(1), must, in the          was presented at trial for the jury to conclude that West
  course of establishing the right, convince the trier of fact     denied Arban his substantive right to reinstatement.
  that the contrary evidence submitted by the employer is
  insufficient and that the employee would not have been             Next, with regard to his interference claim, the jury was
  discharged . . . if he had not taken FMLA leave.                 entitled to find in Arban’s favor if he presented sufficient
                                                                   evidence to establish that he was denied his substantive rights
Id. Here, West presented considerable evidence that the            under the FMLA “for a reason connected with his FMLA
decision to terminate Arban had been made before Arban             leave.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d
went on medical leave, but that his actual termination had         955, 961 (10th Cir. 2002). “Such a reason need not be
been deferred until after the holidays. While an employer has      retaliation.” Id.; see also Miller v. Defiance Metal Prods.,
the discretion to fire an at-will employee for poor                Inc., 989 F.Supp. 945, 946 (N.D. Ohio 1997) (noting that
performance, at trial Arban cast doubt upon both the timing        plaintiff’s termination due to absenteeism caused by a
of and the reasons for the decision to terminate him. For          medical condition constituted “an interference under
example, the December 17 e-mail from Wolfe to Colantino            FMLA”). Twenty-nine C.F.R. § 825.220(b) also explains
suggests that no final decision had been reached. In that e-       that “interfering with” the exercise of an employee’s rights
mail, Wolfe states: “I welcome any and all feedback from my        under the FMLA includes “discouraging an employee from
fellow Managers to see if I have missed any major elements         using [FMLA] leave.”
that would allow Dan to continue. . . . If I have not been open
minded to an alternative that I should consider, please let me       West argues that “it is undisputed that West promptly
know.” Arban also testified that following the “field ride” on     granted Arban’s request for leave without any further
December 21, Wolfe told Arban that he was “very satisfied.”        questions” and that Arban’s “allegations are, therefore,
Nos. 01-2278/2370         Arban v. West Publishing Corp. 17         18 Arban v. West Publishing Corp.          Nos. 01-2278/2370

insufficient to state a claim for interference.” As support for     proscriptive in nature. Hodgens, 144 F.3d at 160. If the
this proposition, West cites Dodgens v. Kent Mfg. Co., 955          employer is found to have retaliated against the employee for
F.Supp. 560, 564 (D.S.C. 1997). In Dodgens, the court found         using FMLA leave, the employer is subject to a claim for
that a plaintiff employee’s claim that his FMLA rights were         compensatory damages and, unless the court finds the
“interfered with” when a plant manager called him twice             violation occurred in good faith, additional liquidated
during his medical leave and requested that he take a               damages. 29 U.S.C. § 2617(a)(1)(A).
demotion was not cognizable under the FMLA. West’s
reliance on Dodgens is misplaced. Unlike the plaintiff in              With regard to Arban’s retaliatory discharge claim, there
Dodgens, who was not asked to work while on medical leave           was sufficient evidence to support the jury’s conclusion that
but rather to accept a demotion upon returning to work, Arban       West retaliated against Arban for taking leave under the
presented evidence that he was asked to continue to perform         FMLA. At trial, Arban testified that during the December 21
work-related tasks while ostensibly on medical leave. Arban         field ride Wolfe stated that he was “very satisfied” with
testified that after notifying Wolfe of his medical leave on        Arban’s performance. The “Field Ride Recap” prepared by
December 28, Wolfe called him on several occasions and              Wolfe also stated that Arban “meets expectations in all
requested that he provide customer lists and pending sales.         areas.” West does not dispute that after the field ride, Arban
Moreover, Arban stated that during a January 6 conversation         engaged in protected activity by taking leave pursuant to the
with Wolfe, he explained that he could not meet with Wolfe          FMLA, nor does West dispute that its termination of Arban
because he was on medical leave, to which Wolfe responded           qualifies as an adverse employment action. The evidence also
that “he’s going to call [West’s disability insurance carrier]      supports the jury’s finding of a causal link between Arban’s
and verify or check whether or not” Arban could meet with           participation in the protected activity (FMLA leave) and the
him. Shortly thereafter, Wolfe called Arban and told him that       adverse employment action (his termination). Although
he had spoken with West’s disability insurance carrier, which       “temporal proximity is insufficient in and of itself to establish
had “told him, you know, supposedly, from what he said that         that the employer’s nondiscriminatory reason for discharging
I had to do this [meet with Wolfe].” Arban then asked him           an employee was in fact pretextual,” Skrjanc, 272 F.3d at 317,
whether he was being fired, and Wolfe responded that he was.        the jury weighed additional evidence, including evidence of
In light of this evidence, the jury was entitled to conclude that   Arban’s performance appraisals and the demeanor of
Arban was terminated for reasons related to his FMLA leave.         witnesses on the stand. Moreover, as previously discussed,
                                                                    Arban testified that after notifying Wolfe that he had taken
  As previously mentioned, in addition to the substantive           medical leave, Wolfe repeatedly called Arban at home “to get
guarantees provided by the act, the FMLA also affords               different accounts and pending sales he could work with.”
employees protection in the event they suffer retaliation or        Arban stated that Wolfe had indicated that “there was a lot on
discrimination for exercising their rights under the FMLA.          the line for Jim Colantino and the exclusive users” and that
Specifically, “[a]n employer is prohibited from discriminating      “[p]eople could win certain prizes and he wanted to make sure
against employees . . . who have used FMLA leave,” nor can          that everybody got as much as they could.” Arban also
they “use the taking of FMLA leave as a negative factor in          explained that when he told Wolfe that he “wasn’t supposed
employment actions.” 29 C.F.R. § 825.220(c). This                   to be doing any work,” Wolfe responded with anger. Arban
prohibition includes retaliatory discharge for taking leave.        added that Wolfe described Arban’s failure to assist him as
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314           “insubordination.” Although West argues that “Arban
(6th Cir. 2001). These protections have been described as           changed his story so that it appears that Wolfe was upset that
Nos. 01-2278/2370         Arban v. West Publishing Corp. 19         20 Arban v. West Publishing Corp.         Nos. 01-2278/2370

he would not work or meet with him during his leave,” as              Family and Medical Leave Act. It is also unlawful under
previously explained, the jury is in a better position to judge       the Family and Medical Leave Act for an employer to
witness credibility than the appellate court. The record thus         discharge or in any other manner discriminate against
contains evidence that supports the jury’s finding that West’s        any other individual for opposing any practice made
explanation for Arban’s termination was disingenuous and              lawful by the Family and Medical Leave Act.
that the real reason was the taking of FMLA leave.
                                                                                                 ***
                              III.
                                                                      In order for Plaintiff to prove that West discriminated or
  A district court’s disposition of a motion for a new trial is       retaliated against him because he took leave, Plaintiff
reviewed for an abuse of discretion. Workman v. Frito-Lay,            must establish the following evidence by a
Inc., 165 F.3d 460, 467 n. 7 (6th Cir. 1999). This court has          preponderance of the evidence.
defined an abuse of discretion as a “definite and firm
conviction that the trial court committed a clear error of            (1) he engaged in an activity protected by the Act;
judgment.” Cincinnati Ins. Co. v. Byers, 151 F.3d 574,                (2) that this exercise of his protected rights was known
578-79 (6th Cir. 1998) (quotation omitted).                               to the defendant;
                                                                      (3) that defendant thereafter took an employment action
  West argues that it is entitled to a new trial “based upon              adverse to the plaintiff; and
critical errors in the jury instructions and the verdict form.”       (4) that there was a causal connection between the
Specifically, West argues that “the jury was not given any                protected activity and the adverse employment
guidance whatsoever regarding what constitutes ‘interference’             action.
under the FMLA.” West contends that the jury improperly
could have found it guilty of “interference” while at the same        To show such a causal connection [between the protected
time “rejecting Plaintiff’s arguments that he was fired               activity and the adverse employment action], Plaintiff
because of his leave.”                                                must show that the reasons given for his termination
                                                                      were not the true reasons, and that the true reason for his
  This court reviews jury instructions as a whole to determine        termination was that he took a medical leave.
whether they fairly and adequately submitted the issues and
applicable law to the jury. Jones v. Federated Fin. Reserve           In this case, West claims that Plaintiff was not terminated
Corp., 144 F.3d 961, 966 (6th Cir. 1998). A party is not              because of his leave, but because of misconduct. In order
entitled to a new trial based upon alleged deficiencies in the        to prevail on his retaliation claim, Plaintiff must also
jury instructions unless the instructions, taken as a whole, are      prove, by a preponderance of the evidence, that West’s
misleading or give an inadequate understanding of the law.            stated reason for discharging Plaintiff is not the true
Id. Here, the district court’s instructions to the jury state, in     reason, but merely a pretext for retaliation, which means
relevant part:                                                        that the true reasons for his termination were not the
                                                                      reasons stated by West, but that Plaintiff took a medical
  Under the Family and Medical Leave Act it is unlawful               leave.
  for any employer to interfere with, restrain or deny the
  exercise of or the attempt to exercise any right under the                                     ***
Nos. 01-2278/2370         Arban v. West Publishing Corp. 21         22 Arban v. West Publishing Corp.                   Nos. 01-2278/2370

  However, the plaintiff must prove by a preponderance of           the FMLA cannot allow a recovery of front pay, and by not
  the evidence that he would not have been discharged had           properly considering an award of front pay to Mr. Arban, at
  he not taken Family and Medical Leave Act leave.                  least as an alternative to reinstatement.”
   Upon examination of the jury instructions, West’s                   The issue of whether front pay is available under the FMLA
arguments lack merit. The trial in this matter was bifurcated,      is a question of law that this court reviews de novo. See
and following the liability phase the jury answered “yes” to        Gottfried v. Med. Planning Serv., 280 F.3d 684, 690 (6th Cir.
the following question: “Did defendant West Publishing              2002). Although this circuit has not directly considered this
Corporation violate plaintiff Daniel Arban’s rights under the       question,1 other circuits have found that front pay is an
Family and Medical Leave Act?” This court must presume              equitable remedy available under the FMLA, as have at least
that the jury followed the district court’s instructions. Weeks     two district courts in this circuit. See, e.g., Diffee Ford-
v. Angelone, 528 U.S. 225, 234 (2000). As previously                Lincoln-Mercury, Inc., 298 F.3d at 965; see also Nichols v.
discussed, Arban presented evidence sufficient for the jury to      Ashland Hosp. Corp., 251 F.3d 496, 503-504 (4th Cir. 2001);
find in his favor under an interference theory premised upon        Churchill v. Star Enters.,183 F.3d 184, 193 (3d Cir. 1999);
the denial of his substantive rights under the FMLA “for a          Rogers v. AC Humko Corp., 56 F.Supp.2d 972, 978 (W.D.
reason connected with his FMLA leave.”                    Diffee    Tenn. 1999); Bryant v. Delbar Products, Inc., 18 F.Supp.2d
Ford-Lincoln-Mercury, Inc., 298 F.3d at 961. The foregoing          799, 810 (M.D. Tenn. 1998). Neither the district court nor
instructions ensured that the jury could not find West liable or    West cites any cases to the contrary. Instead, West argues
award any damages unless it found that West discharged              that “the plain language of the statute does not contemplate
Arban for taking medical leave – a finding that also would          any future damages as an available remedy under the FMLA,
support Arban’s interference claim. Since the instructions,         because the language clearly identifies damages in the past
taken as a whole, indicate that the jury was required to find       tense.” However, West focuses solely upon the language of
that the “true reason for [Arban’s] termination was that he         29 U.S.C. § 2617(a)(1)(A)(i)(I) and ignores the language of
took a medical leave,” no error has been demonstrated.              29 U.S.C. § 2617(a)(1)(B), which provides for equitable
                                                                    remedies. Although West adds that the legislative history
                              IV.                                   does not contain “any discussion of, or even reference to, the
                                                                    availability of front pay or future damages under the FMLA,”
  Under the FMLA, a prevailing plaintiff is entitled to receive     West has not identified any explicit prohibition against front
damages in the amount of “any wages, salary, employment             pay. In light of these authorities and the FMLA’s provision
benefits, or other compensation denied or lost to such              for equitable remedies, we find that the FMLA provides for
employee” as a result of the adverse employment action. 29          front pay.
U.S.C. § 2617(a)(1)(A)(i)(I). The FMLA also provides that
“the employer . . . shall be liable . . . for equitable relief as
may be appropriate.” 29 U.S.C. § 2617(a)(1)(B). In this
case, the district court declined to submit the issue of front
pay to the jury, concluding that the FMLA “does not provide             1
                                                                          In an unpublished decision concerning an FMLA claim, this court
for a remedy of front pay” and adding that “there is in this        previously has held that “[t]he appropriateness of reinstatement and front
case insufficient evidence for the question of front pay.”          pay, as equitable remedies, are within the discretion of the district court.”
Arban now argues that the district court erred “by ruling that      Taylor v. Invacare Corp., 64 Fed. Appx. 516, 523, 2003 WL 21212674,
                                                                    at *6 (6th Cir. May 21 , 2003).
Nos. 01-2278/2370         Arban v. West Publishing Corp. 23          24 Arban v. West Publishing Corp.         Nos. 01-2278/2370

  While the determination of the precise “amount of an award           Number two is the Court believes that there is in this case
of front pay is a jury question,” the initial “determination of        insufficient evidence for the question of front pay even if
the propriety of an award of front pay is a matter for the             it were allowed to go to the jury for the following
court.” Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398 (6th            reasons: Number one, is there has been really – the
Cir. 1993) (ADEA claim). This court reviews the district               proofs here are that in terms of loss wages, loss
court’s conclusions regarding the propriety of an award of             opportunity, and so forth, that there’s just not enough
front pay for an abuse of discretion. See Simpson v. Ernst &           evidence to go – especially on what he has made, and I
Young, 100 F.3d 436, 444 (6th Cir. 1996) (ERISA claim) (“A             understand that part of it had to do with the law school
decision to submit the issue of front pay to the jury is               and so forth, but still based upon his mitigation of
committed to the sound discretion of the trial court and is            damages which he has none, there is no reason that a
reviewed on appeal for abuse of discretion.”).                         reasonable jury could believe that there’s going to be
                                                                       front pay, number one.
  Although “[r]einstatement is the presumptively favored
equitable remedy,” it is not appropriate “where the plaintiff        A review of the evidence presented at trial indicates that the
has found other work.” Roush, 10 F.3d at 398. In this case,          district court’s decision was not an abuse of discretion. Arban
Arban testified that he accepted an offer to serve as a field        testified that after accepting employment with Matthew
sales representative for Matthew Bender, a legal publishing          Bender in July or August of 1999, his compensation was
company, in July or August of 1999. The fact that                    $45,000. Arban also explained that in 2000, he became a
reinstatement is inappropriate, however, does not mean that          field sales manager, a position that he agreed was “similar to
an award of front pay is required. “No per se rule governs the       the field sales manager position [he] had with West dating
appropriateness of front pay damages in a particular case. . . .     back to 1997.” Through the first eleven months of 2000,
Ultimately, the question to be answered is whether front pay         Arban had earned $185,000, $100,000 of which was
damages are needed in a particular case to make the plaintiff        attributable to the opening of a new law school in his area.
whole.” Wilson v. Int’l Bro. of Teamsters, 83 F.3d 747,              Arban’s earnings as an employee of West in 1998, by
756-57 (6th Cir. 1996). Several factors must be considered           contrast, were $169,412. Consequently, Arban has shown no
when determining the propriety of an award of front pay,             damages warranting an award of front pay.
including “an employee’s duty to mitigate, the availability of
employment opportunities, the period within which one by               Arban argues that “[a] comparison of the earned wages in
reasonable efforts may be re-employed, the employee’s work           1998 to the earned wages in 2000 clearly is not proper or
and life expectancy, the discount tables to determine the            relevant in the determination of Mr. Arban’s front pay” and
present value of future damages and other factors that are           that “a legitimate comparison for calculating front pay is the
pertinent on prospective damage awards.” Roush, 10 F.3d at           amount Mr. Arban would have earned and the amount Mr.
399 (quoting Shore v. Federal Express Corp., 777 F.2d 1155,          Arban was earning.” Arban, however, did not provide
1160 (6th Cir. 1985)).                                               evidence by which the jury could make what he claims would
                                                                     be a more accurate estimate of his earnings. “A plaintiff who
   In this case, the district court refused to submit the issue of   seeks an award of front pay must provide the district court
front pay to the jury, stating:                                      with the essential data necessary to calculate a reasonably
                                                                     certain front pay award.” Bruso v. United Airlines, Inc., 239
                                                                     F.3d 848, 862 (7th Cir. 2001); see also Tyler v. Union Oil Co.
Nos. 01-2278/2370        Arban v. West Publishing Corp. 25       26 Arban v. West Publishing Corp.          Nos. 01-2278/2370

of Cal., 304 F.3d 379, 402 (5th Cir. 2002) (affirming district          THE COURT:         – he thinks he could have made
court’s denial of front pay where an award would be “purely                                somewhere else?
speculative”). At trial, William King, Arban’s economic
expert, testified as follows:                                        THE WITNESS:          Well, he had said he was going to
                                                                                           go up thirty percent a year, and I
  Q. Did you come up with a number for front pay,                                          would do so–
     taking the October 30 date and going forward?
                                                                        THE COURT:         But it’s all based on what he told
  A. Certainly.                                                                            you?
  Q. And what number did you come up with for that?                  THE WITNESS:          Yes.
  A. One Million, Eight Hundred and Eighty-Seven                 Arban’s evidence regarding front pay was purely speculative.
     Thousand, Three Hundred Eighty-Four Dollars.                On the evidence before it, the district court thus did not abuse
                                                                 its discretion in declining to submit the issue of front pay to
  Q. Now–                                                        the jury.
      THE COURT:         Hang on. Front pay is what Mr.                                        V.
                         Arban told you? You didn’t do
                         any research or anything else?            Arban contends that the district court erred in failing to
                         It’s what he said that he thinks he     award liquidated damages under the FMLA. The FMLA
                         could make or not make?                 provides that a court shall award liquidated damages equal to
                                                                 the damages due to lost compensation plus interest. 29
    THE WITNESS:         Well, it’s based on that and the        U.S.C. § 2617(a)(iii). However, if an employer proves that it
                         Social Security Wage Index.             acted “in good faith and that the employer had reasonable
                                                                 grounds for believing that the act or omission was not a
      THE COURT:         But it’s all based on what he hold      violation” of the FMLA, the court may reduce the damages.
                         you?                                    Id.
    THE WITNESS:         Yes. The two years at the twenty           The FMLA does not explicitly define the term “good faith.”
                         percent, and then the Social            However, this court previously has turned to the Fair Labor
                         Security Wage Index.                    Standards Act (FLSA), which contains similar remedial
                                                                 provisions, for guidance in interpreting the FMLA. Both the
      THE COURT:         But all you did was take the            FMLA and the FLSA provide that an employer “shall” be
                         Social Security formula and add it      liable for damages and liquidated damages and that the
                         to what he told you–                    district court “may” reduce the amount of liquidated damages
                                                                 if good faith is established. See 29 U.S.C. § 216(b)
    THE WITNESS:         Correct.                                (providing damages under FLSA); id. at § 260 (providing
                                                                 good faith defense to liquidated damages under FLSA); id. at
Nos. 01-2278/2370        Arban v. West Publishing Corp. 27        28 Arban v. West Publishing Corp.          Nos. 01-2278/2370

§ 2617(a) (FMLA). “[T]he legislative history of the FMLA            In this case, West claims that Plaintiff was not terminated
reveals that Congress intended the remedial provisions of the       because of his leave, but because of misconduct. In order
FMLA to mirror those in the FLSA.” Frizzell, 154 F.3d at            to prevail on his retaliation claim, Plaintiff must also
644 (citing S. Rep. No. 103-3, at 35 (1993), reprinted in 1993      prove, by a preponderance of the evidence, that West’s
U.S.C.C.A.N. 3, 37 (“[The FMLA’s] enforcement scheme is             stated reason for discharging Plaintiff is not the true
modeled on the enforcement scheme of the FLSA. . . . The            reason, but merely a pretext for retaliation, which means
relief provided in FMLA also parallels the provisions of the        that the true reasons for his termination were not the
FLSA.”)).                                                           reasons stated by West, but that Plaintiff took a medical
                                                                    leave.
  Under the FLSA, a district court may not exercise its
discretionary authority to reduce or eliminate a liquidated       As previously noted, this court presumes that the jury
damages award unless the employer first sustains its burden       followed the district court’s instructions. Weeks, 528 U.S. at
of proving that its “failure to obey the statute was both in      234. In finding in favor of Arban, the jury thus necessarily
good faith and predicated upon such reasonable grounds that       found that West made its decision because Arban “took a
it would be unfair to impose upon it more than a                  medical leave,” not because of Arban’s misconduct. “[W]hen
compensatory verdict.” Elwell v. Univ. Hosps. Home Care           legal and equitable issues to be decided in the same case
Servs., 276 F.3d 832, 840 (6th Cir. 2002) (quotation omitted)     depend on common determinations of fact, such questions of
(FLSA context). This court thus must consider whether West        fact are submitted to the jury, and the court in resolving the
sustained its burden. “Although in the final analysis, we         equitable issues is then bound by the jury’s findings on
review a district court’s decision on liquidated damages for      them.” Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at 965.
abuse of discretion, that discretion must be exercised            In this case, the district court disregarded the jury’s finding –
consistently with the strong presumption under the statute in     that West’s decision to fire Arban was a result of his medical
favor of doubling.” Elwell, 276 F.3d at 840 (quotation            leave and not his misconduct – in considering the liquidated
omitted).                                                         damages issue. Instead, the district court made its own
                                                                  contrary finding, which served as the basis for its denial of
  The district court found that West acted in good faith          liquidated damages. This was error. The district court thus
because “they made their decision even before the medical         abused its discretion when it denied Arban liquidated
leave was – the Family Medical Leave Act request was even         damages.
put in. They wanted to delay it because of the holidays.”
However, as previously noted, the district court’s instructions                                 VI.
to the jury specifically state:
                                                                    In its April 26, 2001, order, the district court granted
  To show such a causal connection [between the protected         West’s motion for stay of execution of the judgment “pending
  activity and the adverse employment action], Plaintiff          the disposition of post-trial motions and, if necessary, during
  must show that the reasons given for his termination            appeal.” Arban now argues that for West to obtain a stay of
  were not the true reasons, and that the true reason for his     execution of the judgment, West must give a supersedeas
  termination was that he took a medical leave.                   bond pursuant to Fed. R. Civ. P. 62(d). This court reviews a
                                                                  district court’s denial of a supersedeas bond for an abuse of
Nos. 01-2278/2370        Arban v. West Publishing Corp. 29

discretion. Kennedy v. Uniroyal Pension Plan, 937 F.2d 608,
1991 WL 134613, at **8 (6th Cir. 1991) (unpublished).
   Rule 62(d) entitles a party who files a satisfactory
supersedeas bond to a stay of money judgment as a matter of
right. Federal Prescription Serv., Inc. v. Am. Pharm. Ass’n,
636 F.2d 755, 759 (D.C. Cir. 1980) (citing Am. Mfr. Mut. Ins.
Co. v. Am. Broad. Paramount Theatres, Inc., 385 U.S. 931
(1966)). However, “the Rule in no way necessarily implies
that filing a bond is the only way to obtain a stay. It speaks
only to stays granted as a matter of right, it does not speak to
stays granted by the court in accordance with its discretion.”
Id. Arban claims that West must make “at least a showing
that it has adequate resources to satisfy the bond.” West has
done so here. At the hearing on West’s motion for stay
without bond on April 25, 2001, counsel for West stated that
“the revenues of the group of which West is a part is
approximately 2.5 billion.” The Seventh Circuit has noted
that “an inflexible requirement of a bond would be
inappropriate . . . where the defendant’s ability to pay the
judgment is so plain that the cost of the bond would be a
waste of money.” Olympia Equip. Leasing Co. v. Western
Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986). In light of
the vast disparity between the amount of the judgment in this
case and the annual revenue of the group of which West is a
part, the district court’s decision to grant a stay without a
bond was not an abuse of discretion.
                             VII.
  For all of the foregoing reasons, we affirm the district
court’s denial of West’s motion for judgment as a matter of
law or for a new trial, reverse and remand the trial court’s
denial of an award of liquidated damages, affirm the district
court’s denial of Arban’s claim for front pay, and affirm the
district court’s grant of a stay without bond.
