                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 12-1456
ZANE HOLDER,
                                                  Plaintiff-Appellee,

                                v.

ILLINOIS DEPARTMENT OF CORRECTIONS
AND ILLINOIS DEPARTMENT OF CENTRAL
MANAGEMENT SERVICES,
                                            Defendants-Appellants.
                    ____________________

        Appeal from the United States District Court for the
                   Southern District of Illinois.
              No. 09 C 1082 — J. Phil Gilbert, Judge.
                    ____________________

     ARGUED OCTOBER 29, 2012 — DECIDED MAY 2, 2014
                ____________________

   Before POSNER, KANNE, and ROVNER, Circuit Judges.
    ROVNER, Circuit Judge. Zane Holder began working for
the Illinois Department of Corrections (Department) in 2006
as a correctional officer at the Shawnee Correctional Center
in Illinois. Unfortunately, a few years later, Holder’s wife,
Sarah, began to suffer from mental health problems relating
to opiate dependency. Holder found it necessary to take
2                                                No. 12-1456

leave from work to care for and provide emotional support
for his wife.
    In order to assess his options, Holder spoke with the
facility’s Family and Medical Leave Act (FMLA) coordinator.
Holder, like all new employees, had received information
about FMLA leave when he was hired. Nevertheless, at the
time Holder asked about his options to care for his wife, the
human resources representative gave him another
informational packet which explained FMLA leave. FMLA
entitles eligible employees to twelve work weeks of leave
during a twelve month period to care for a spouse with a
serious medical condition (the definition of which we will
discuss more below). 29 U.S.C. § 2612(a)(1).
    Soon after, Holder informed the warden about his need
for a leave of absence under the FMLA. On October 3, 2007,
Holder submitted an FMLA medical certification form
indicating that his wife suffered from a serious health
condition as defined under the Act and that she was
currently incapacitated with a chronic mood disorder and
substance abuse disorder. Sarah Holder’s psychiatrist
checked the box indicating that it would “be necessary for
the employee to take off work only intermittently or to work
less than a full schedule as a result of the condition,” and
that the need for leave would continue for an “unknown”
duration. Holder received written notification from the
Department of Corrections that his FMLA request had been
approved. The Department never asked him to submit any
additional medical documentation supporting his claim for
FMLA benefits, and it continued to pay its share of his
health insurance premium until April 18, 2008.
   The FMLA medical certification form that Holder
submitted attributed to FMLA leave seven absences that
Holder had already taken in August and September, 2007.
The rest of the absences were recorded when Holder called
No. 12-1456                                                    3

into work on a day-by-day basis to advise the Department
that he would need to be home to care for his wife. The
officer receiving the phone call would fill out the first part of
the Notification of Absence form and then, upon returning
to work, Holder would complete the form indicating which
type of leave he had taken, as required by the procedures.
The Department approved each and every one of his
requests. All in all, Holder requested and received FMLA
leave for approximately 130 days as listed below:
   September 30-October 2, 2007                   9 days
   (the Department initially reported 11)
   October 2007                                   7 days
   (the Department initially reported 11)
   November 2007                                  9 days
   December 2007                                 13 days
   January 2008                                  17 days
   February 2008                                 13 days
   March 2008                                    19 days
   April (through the 17th) 2008                 11 days
   April 18-30 2008                               7 days
    On April 18, 2008, the FMLA coordinator advised Holder
that his FMLA leave had expired and that if he needed
additional leave, he would have to take it under a
comparable      state    program—the       Illinois    Family
Responsibility Leave program (FRL). The State’s leave
program allows up to a year of unpaid leave “under
circumstances temporarily inconsistent with uninterrupted
employment of State service” 80 Ill. Admin. Code
§ 303.148(d), such as “provid[ing] regular care to a disabled,
incapacitated or bedridden” family member 20 ILCS
§ 415/8c(5). Under the FRL program, the State only covers
4                                                 No. 12-1456

an employee’s insurance premiums for up to six months. 80
Ill. Admin. Code § 303.148(n).
   Between April 20 and June 9, 2008, Holder took twenty-
nine absences, listing the State leave program on the
“Notification of Absence” forms. The Warden disapproved
his requests for June 8-9 and on the denied form, Holder
wrote “last one!!!”
    More than eight months later, in February 2009, the
Illinois Department of Central Management Services
informed Holder that the State had mistakenly paid for his
health insurance premiums past the sixtieth day to which he
was entitled leave, including from January 1, 2008, through
June 30, 2008, and that Holder was responsible for repaying
those health premiums. Beginning May 31, 2009, the State
began garnishing Holder’s wages, deducting 25% of his
earnings each month until he had refunded $8,291.83.
Holder filed suit claiming that the State defendants (the
Departments of Corrections and the Department of Central
Management Services) interfered with his rights under the
FMLA by denying him intermittent leave beginning on or
about January 1, 2008, by failing to provide notice that
Holder’s FMLA leave was exhausted, and by requiring him
to repay the premiums beginning in January 2008. The State
argued that Holder was not entitled to FMLA leave, that he
never returned from that leave, and that the Department was
not required to pay his health insurance premiums. Holder
countered that he was entitled to continue his leave after the
sixtieth day because the Department approved those
additional days of FMLA leave and now was equitably
estopped from denying it. The parties disputed when
Holder had reached the sixtieth day of leave. Both parties
filed motions for summary judgment.
   In its summary judgment ruling, the court held that the
State was equitably estopped from asserting that Holder was
No. 12-1456                                                   5

not entitled to FMLA leave. After reviewing the elements of
equitable estoppel, the court stated:
   [T]he Department represented to Holder that it had
   approved his FMLA leave based on the medical
   certification form. The Department’s approval of
   Holder’s request for FMLA leave is essentially an
   assertion by the Department that it was satisfied
   Sarah suffered from a serious health condition.
   Holder detrimentally relied on that representation by
   taking absences, believing the Department would
   cover his insurance premiums, and not pursuing FRL.
   Further, the Department could have requested more
   information concerning Sarah’s condition if it did not
   believe the doctor’s certification was sufficient; the
   department, however, failed to do so. Thus it was
   reasonable for Holder to rely on the Department’s
   representation that it was satisfied Sarah suffered
   from a serious health condition. Accordingly, the
   Department is now estopped from asserting Holder
   was not entitled to FMLA leave.
(R. 48, p.6) (emphasis ours).
    The court concluded that a jury would have to resolve
the following factual issues that still remained: (1) When
Holder’s leave expired—that is, when he took his sixtieth
day of leave; (2) Whether it was reasonable for Holder to
rely on the Department’s representations that he was
entitled to FMLA leave after his sixtieth absence; (3) If it was
reasonable for Holder to rely on the Department’s
misrepresentations, how many days after the sixtieth day
was Holder’s reliance reasonable. (Id. p.11). Ultimately the
parties stipulated before trial that the sixtieth day of
Holder’s leave occurred on January 31, 2008. The parties also
stipulated that the State’s portion of Holder’s insurance
premium that the defendants withheld from Holder’s
6                                                  No. 12-1456

paycheck was $611.05 per pay period and that there were
two pay periods each month.
    Before trial, Holder filed a motion in limine seeking to bar
“the Defendants from offering any evidence or from arguing
that Holder was not entitled or eligible for FMLA leave.” (R.
50, p.2). The State responded that it did not object based on
the ruling of the court but wished to preserve the issue for
appeal. (R. 51, pp.1-2).
    Three days before jury selection, the defendants moved
to amend the pre-trial order to remove Holder’s claim as to
January 2008, stating that the action was moot as the
defendants had asked the Illinois Comptroller to cut a check
for Holder for the disputed amount. The court stated that
“January [2008] will not be an issue before the jury [but] may
very well be an issue for the Court.” (R. 86, Tr. 10/26/11,
p.21).
    At the close of the evidence Holder moved for partial
judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50, for the premiums withheld in January
2008, arguing that by stipulation, the sixtieth day of FMLA
leave did not occur until January 31, 2008, and thus the State
was unquestionably required to pay for the premiums for
that month. Rather than ruling on the motion immediately,
the judge took it under advisement. The State then moved
for judgment as a matter of law under the same rule arguing
(1) that they had already sent a request to the comptroller to
cut a check for January 1, 2008 through January 30, 2008, and
(2) that the FMLA limits employees to sixty days of leave
and that any days that Holder took after that were not
covered by the FMLA regardless of any facts of the case. The
court denied the State’s motion.
   The jury returned a verdict in favor of the State, and after
dismissing and then speaking with the jurors, the judge
No. 12-1456                                                   7

returned to the bench to address the pending Rule 50
motion, granting judgment notwithstanding the verdict for
the month of January and awarding the plaintiff $1,222.10
for January 2008. The court entered a judgment for the
defendants for the rest of the months. After some post-trial
motions which we will address in the course of the decision,
this appeal followed.
    We begin by addressing the State’s argument regarding
the propriety of the Rule 50 motion, a legal decision which
we review de novo. Rapold v. Baxter Intern. Inc., 718 F.3d 602,
613 (7th Cir. 2013). Rule 50 states that “if a party has been
fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the court
may resolve the issue against the party; and grant a motion
for judgment as a matter of law.” Fed. R. Civ. P. 50(a)
(internal section headings omitted). Unless the district court
grants the motion, it is deemed to have been submitted to
the jury subject to any legal questions raised in the motion.
Fed. R. Civ. P. 50(b). After the verdict, the loser may renew
his challenge to the sufficiency of the evidence by means of
Rule 50(b). Holder moved for judgment as a matter of law
after the close of evidence on the theory that once the State
stipulated that the sixtieth day of FMLA leave occurred on
January 31, 2008, no reasonable jury could have concluded
that Holder was responsible for his health insurance
premiums in January 2008. After the jury rendered its
verdict for the State, the district court judge dismissed the
jurors and then announced to the parties that he would leave
the bench to talk to the jury. Upon the judge’s return, he
immediately announced his ruling on Holder’s Rule 50
motion, thus Holder argues, cutting off any opportunity for
Holder to make a post-verdict motion if one was required.
8                                                 No. 12-1456

    The State’s objection to the ruling on the Rule 50 motion
for judgment as a matter of law is largely based on this
procedural lapse. The State argues that Rule 50(b) forbids a
court from setting aside a jury verdict for any reason unless
the moving party has made a post-judgment motion. Most
case law dictates that a motion for judgment as a matter of
law must be made after the close of evidence and renewed
after the judgment. Consumer Prods. Research & Design, Inc. v.
Jensen, 572 F.3d 436, 437-38 (7th Cir. 2009). This circuit,
however, when discussing the close of evidence renewal
requirement has stated that “Rule 50(b) of the Federal Rules
of Civil Procedure implies (no stronger word is possible)
that a motion for judgment as a matter of law must indeed
be renewed at the close of evidence if the moving party
wants to obtain such relief should the jury bring in a verdict
against him.” Szmaj v. Am. Tel. & Tel. Co., 291 F.3d 955,
957 (7th Cir. 2002). We then specifically noted that this court
has not, in the past “applied this rule rigidly.” Id. (citing
Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1139–40 (7th
Cir. 1994)).
   The rationale behind the rule is one of fairness. As we
explained in Szmaj:
    The reason for requiring renewal is that if a motion
    for judgment as a matter of law is made at the close of
    the plaintiff's case and denied and not renewed at the
    close of the defendant’s case, the plaintiff may assume
    that the denial was the end of the matter, while if the
    defendant shows by renewing the motion that the
    denial was not the end of the matter, the plaintiff may
    ask and may receive permission from the judge to put
    in some additional evidence to show that there is a
    jury issue. This rationale collapses when, as in this
    case but not in our previous cases, the judge takes the
No. 12-1456                                                    9

   original motion under advisement; for then the
   plaintiff knows at the end of the trial that the question
   whether the defendant is entitled to judgment as a
   matter of law is a live one. There is no mouse-
   trapping of the plaintiff in such a case; neither the
   language of Rule 50(b) nor the committee note
   suggests that renewal of the motion is required in that
   circumstance; and requiring a party to file a motion
   before a previous identical motion has been ruled on
   is wasteful.
Szmaj, 291 F.3d at 958. Szmaj discussed the requirement for
renewal at the close of evidence, but the rationale for post-
verdict renewal is no different. See Brady v. Wal-Mart Stores,
Inc., 531 F.3d 127, 133 (2d Cir. 2008) (“We have held that
where the trial judge has indicated that renewing a
previously made motion for judgment as a matter of law at
the close of all the evidence was not necessary, and where
the opposing party could not reasonably have thought that
the motion was dropped, then judgment as a matter of law
may be sought post-verdict.”) A party who knows the court
has taken a motion for a verdict under advisement has no
reason to be surprised that the motion is still in play.
Certainly there was no mousetrapping in this case. Holder
moved for judgment as a matter of law at the close of all the
evidence. The court did not deny the motion, but rather took
it under advisement. For this reason the State’s reliance on
the footnote in Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 402 n.4 (2006), demanding strict compliance
with the rule requiring a renewal motion, is not particularly
helpful as the court in that case initially denied the Rule
10                                                        No. 12-1456

50(a) motion for judgment notwithstanding the verdict and
the parties failed to renew the motion. 1
    Our court has long rejected the formalistic renewal
requirements for motions for judgment as a matter of law
where they serve no purpose. In Shaw v. Edward Hines
Lumber Co., 249 F.2d 434 (7th Cir. 1957), this court concluded
that a district court could enter judgment on the basis of a
motion for a directed verdict (now called a judgment as a
matter of law), even in the absence of any further post-
verdict motion, when the court had expressly reserved its
decision on the original motion. Id. at 437-38. See also Bonner
v. Coughlin, 657 F.2d 931, 939 (7th Cir. 1981) (noting that this
circuit has applied a relaxed standard to Rule 50(b) motions
and stating, “[i]t is certainly the better and safer practice to
renew the motion for directed verdict at the close of all the
evidence, but ‘(t)he application of Rule 50(b) in any case
“should be examined in the light of the accomplishment of
(its) particular purpose as well as in the general context of
securing a fair trial for all concerned in the quest for
truth.”’”). As we said in Szmaj, to treat the failure-to-renew
rule rigidly where the court had taken the matter under
advisement rather than denying it outright, “would ordain
redundancy and create a trap for the unwary, of which the
law contains a sufficient number as is to keep us
entertained.” Id. at 958.
  In sum, the district court was certainly entitled to grant
Holder’s Rule 50 motion despite the fact that Holder did not

1 Congress amended Fed. R. Civ. P. 50 rule slightly in 2006, removing the
requirement of renewing a Rule 50 motion at the close of all evidence in
order to preserve it for the verdict, although the requirement to renew a
motion post-judgment remains. Our reasoning regarding fairness and
notice when a motion has been taken under advisement applies in either
circumstance.
No. 12-1456                                                 11

renew his motion after the verdict. Holder moved for
judgment as a matter of law “as it relates to the month of
January 2008” at the close of all the evidence and the district
court did not deny the motion, but took it under advisement.
As soon as the judge returned from dismissing the jury, he
immediately ruled on the pending motion thus obviating the
need for Holder to renew it. Finally, the State was not
disadvantaged by the court’s ruling, as it knew that the
motion had never been dismissed and was still in play. As
Holder points out, any other rule, would have required the
nonsensical result that Holder was required to renew the
motion that had just been granted by the court.
    As for the argument that the court failed to explain its
Rule 50 ruling as required, the State’s brief argument
warrants only an equally brief response. Although it is true
that the court did not give much of an explanation for its
ruling, the ruling did not require much. The parties had
stipulated that Holder’s sixtieth day of FMLA leave occurred
on January 31, 2008, and the court had already declared that
he was eligible for FMLA leave. In fact, even the defendants,
by cutting a check for Holder for the January 2008 payments
and arguing that the issue was moot, admitted that Holder
did not owe the State for the January 2008 premiums. See
(R.86, Tr. 10/26/08, pp.14-23). If more explanation was
required, the court explained its reasoning in its January 25,
2012 ruling on liquidated damages. (R at 77, pp. 2-5).
    The State also argues that it was not given an
opportunity to rebut Holder’s arguments as to the January
2008 time period. We find to the contrary. The district court
explained its ruling regarding eligibility in the summary
judgment order and noted that a factual dispute remained
regarding the sixtieth day of leave. Once the State and
Holder entered into a stipulation about the sixtieth day, that
issue had been removed from the jury. The State could have
12                                                  No. 12-1456

appealed the summary judgment holding on this matter
(more on this below), but instead made the tactical decision
to argue that its agreement to pay rendered the issue moot.
When a party selects among arguments as a matter of
strategy, he also waives those arguments he decided not to
present. U.S. v. Brodie, 507 F.3d 527, 531-32 (7th Cir. 2007).
    The State’s other strategy was to try to turn both the trial
and now the appeal into one which examined Sarah
Holder’s eligibility for leave in the first place. To establish a
claim under the FMLA, an employee must show: (1) he was
eligible for FMLA protection; (2) his employer is covered by
the FMLA; (3) he was entitled to take leave under the FMLA;
(4) he provided sufficient notice of his intent to take leave to
his employer; and (5) his employer, the State, denied him
FMLA benefits to which he was entitled. Spurling v. C & M
Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014). The State
argues that Holder was not entitled to leave under the
FMLA.
    The trouble for the State, however, is that the district
court ruled on summary judgment that Holder was indeed
entitled to FMLA leave—up until his sixtieth day of leave.
The State has not challenged that ruling, but attempts to
skirt it in another way. The State’s argument is based on a
distinction it makes between the entitlement to FMLA in the
first place due to a serious health condition that makes one
unable to work (we’ll call this “threshold entitlement,”
although that term is entirely of our making) and
entitlement to take leave on any particular day because the
employee or family member is unable to work or required
treatment on the particular day she was absent (we will call
this “date-specific entitlement”—again, a term of our
making). The State seeks to convince us that the court’s
ruling that Holder was entitled to FMLA leave concerned
only the first entitlement question—that is whether Holder’s
No. 12-1456                                                   13

wife suffered from a serious medical condition, and left open
the issue of the second entitlement—that is whether his
wife’s sufficiently serious health condition rendered her
unable to care for her own basic needs on those specific days
that Holder did not report for work.
    Based on this theory, the State peppers its brief with facts
(not admitted at trial) attempting to demonstrate that Sarah
Holder did not have a serious medical condition rendering
Holder eligible for FMLA leave. At trial, the State argued in
a sidebar conference that when Holder testified at trial that
he believed that all of his 133 absences had been necessary to
take care of his wife, he opened the door for evidence that
his wife had worked a good portion of those 133 days. On
appeal the State argues that the district court erred when it
denied it the opportunity to cross-examine Holder’s wife
about her medical condition. We review a district court's
evidentiary rulings under an abuse of discretion standard
and give “special deference” to the district court’s findings
reversing only when “no reasonable person could take the
view adopted by the trial court.” Common v. City of Chicago,
661 F.3d 940, 946 (7th Cir. 2011).
    The problem with the State’s argument that the court
only ruled on the first of two types of entitlement is that it is
not supported by the procedural facts of the case nor by case
law. Both parties appear to have acknowledged that the
issue of entitlement was resolved prior to trial. Holder filed
a motion in limine, moving the court to exclude any evidence
of his wife’s medical condition on the theory that that issue
had been resolved and was not subject to proof at trial. (R.50,
pp.2-3). The State agreed that given the summary judgment
ruling, the issue could not be raised at trial. (R.51, pp.1-2).
And the pre-trial order did indeed conclude that “the
Defendants are estopped from claiming that Holder was not
entitled to FMLA leave.” (R.52 p.2). The State never sought
14                                                 No. 12-1456

to limit the summary judgment ruling to one particular type
of entitlement.
    Moreover, the State’s convoluted and confusing
argument and the cases it cites do not illuminate a long-
standing distinction between these two types of entitlement
as the State promises. What those cases do demonstrate is
that there are various reasons why an employee might be
ineligible for leave; sometimes employees attempt to take
FMLA leave to which they are not entitled; employers can
and do ferret out the illegitimate leaves by timely asking for
more support for the need for leave—either before or after
the fact, by conducting surveillance, asking for medical
documentation or by immediately denying leave to which
an employee is not entitled. In none of these cases has an
employer granted scores and scores of leave days without
any requests for more proof, only to deny the leave months
and months after the fact.
    The Scruggs case the State cites in rebuttal only reinforces
why the district court’s ruling on estoppel was correct.
Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012).
Although it is true in Scruggs that the employer approved
Scruggs’ FMLA leave only to find that he had lied about his
mother’s need for assistance on a relevant date, the
employer did not attempt to retroactively deny an FMLA
leave long after the fact. In Scruggs, the employee requested
and was initially approved for leave on July 24th, 26th, 27th,
and August 8th. Surveillance on July 24th revealed that
Scruggs had not used his leave for the intended purpose. By
August 9th, the employer confronted Scruggs and asked for
more proof that the leave was legitimate. When the proof fell
flat, Scruggs was terminated. Id. at 823-24. This is precisely
what the State could have done—immediately ask for more
proof of legitimacy. See also Jones v. C & D Techs., Inc., 684
F.3d 673, 676 (7th Cir. 2012) (immediately upon return from
No. 12-1456                                                    15

questionable leave, the employee was asked to document the
need for FMLA leave); Darst v. Interstate Brands Corp., 512
F.3d 903, 907, 911-12 (7th Cir. 2008) (When Darst returned
from his July 29th, August 2d and 3d leave, the company
immediately terminated him for taking leave to which he
had not been entitled under the FMLA as he was not seeking
treatment for alcoholism at the time). Instead, the State
continued to approve FMLA leave for approximately nine
months, never once asking for additional information or
giving Holder any reason to think he might be accruing
thousands of dollars in debt to the State. The Scruggs case
does not establish a distinction between “threshold
entitlement” and “date specific entitlement;” it establishes
that an employer may deny FMLA leave or terminate an
employee in a timely manner based on an honest suspicion
that the employee was abusing her leave. Scruggs, 688 F.3d
at 826. The State chose not to do either of these things.
    The other cases the State relies upon offer no more help,
as they also do not make any distinction between “threshold
entitlement” and “date-specific entitlement,” but rather
demonstrate the various legitimate ways an employer can
deny FMLA leave when it discovers that an employee is not
entitled to the leave and then immediately acts on that
knowledge. See, e.g., Jones, 684 F.3d at 679 (holding that
employer did not violate FMLA by denying leave because
renewing a prescription and transferring a medical record is
not “treatment” as described in the Act); Nicholson v. Pulte
Homes Corp., 690 F.3d 819, 826 (7th Cir. 2012) (employer does
not violate FMLA where employee never properly asked for
FMLA leave in the first instance); Darst, 512 F.3d at 907, 911-
12 (employer legitimately terminated Darst for taking leave
to which he had not been entitled under the FMLA as he was
not seeking treatment for alcoholism at the time); Ridings v.
Riverside Med. Ctr., 537 F.3d 755, 771 (7th Cir. 2008) (failure to
16                                                  No. 12-1456

turn in the forms foreclosed Ridings’ ability to persevere on
an FMLA interference claim because she did not fulfill her
obligations in order to be protected).
    We cannot conclude, as the State would like, that when
the district court stated that “the Department is now
estopped from asserting Holder was not entitled to FMLA
leave,” (R.48, p.6) (see also R.52, p.2) it was only referring to
one kind of (undefined) entitlement and not another. The
district court declared that the defendant could not
challenge Holder’s entitlement to leave. We take the ruling
on its face, and the State has never requested that we
overturn this ruling—just that we declare it limited to a
particular type of entitlement. We decline to do so.
    And if we did, and if these two types of entitlement did
exist, we fail to see why reliance would not also preclude the
defendants from arguing about date-specific entitlement. If
the State had denied Holder’s leave in its entirety, he could
have explored other options for leave or for care for his wife.
For example, under the State’s Family Responsibility Leave
an employee need only show that he perceives that he has a
duty to care for a loved one in order be qualified for leave.
80 Ill. Admin. Code 303.148(d). Holder could have taken this
leave for up to twelve months rather than twelve weeks and
the State would have been required to continue to pay its
portion of the medical benefits for up to six months of that
leave. 80 Ill. Admin. Code 303.148 (a), (n). Similarly, if he
had known that his employer doubted the veracity of his
need for leave on any particular day, he could have
presented support for his need for leave that day. Moreover,
if he had known his leave might be denied retroactively long
after the fact and he would be liable for more than $8000 of
premium payments, he could have assessed the financial
risk of taking leave. Although we need not decide today
how long after granting leave an employer has to question
No. 12-1456                                               17

the veracity of a claim, we note that there must be some
ability for an employee to rely on a grant of leave without
risk of retroactive revocation months down the road.
    Moreover, it is worth raising the issue of whether it
makes sense for the FMLA to require the same definition of
“serious health condition” for the ailing family member as it
does when addressing the employee itself. The statute states
that an employee may take FMLA leave “[i]n order to care
for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter, or parent has a
serious health condition.” 29 U.S.C. § 2612(a)(1)(C). The
regulations define “serious health condition” as one “that
makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C. § 2612(a)(1)(D); 29
C.F.R. § 825.113.
    Suppose however, that, not unlike in the actual factual
scenario here, Sarah Holder suffered from serious
depression and her health care provider was concerned
about a possible suicide risk. Nevertheless, she worked from
home as a seamstress and was perfectly capable of
performing the tasks of her job and, in fact, her health care
provider may have recommend-ed that she continue to work
as a way of keeping busy and feeling useful. In order to do
so, however, she required a watchful eye. Because Holder
could not bring his wife to his place of business to keep
watch over her, it may have made quite a bit of sense both
economically and therapeutically for Sarah Holder to stay
home and work, and for Holder to stay home and act as the
watchful eye. Surely the legislature could not have intended
that both spouses remain unemployed where one is able to
work. This dilemma seems particularly relevant when the
family member has a mental health condition but can still
perform the physical demands of a job. Some courts have
held that an employee need not be completely incapacitated
18                                                   No. 12-1456

and unable to work at any job, but unable to perform the
functions in her current job in order to qualify for FMLA
leave. Stekloff v. St. John's Mercy Health Sys., 218 F.3d 858, 862
(8th Cir. 2000). In the Americans with Disabilities Act
context we have stated that a disabled person should not be
punished for heroic efforts to work by being held to have
forfeited his entitlement to disability benefits should he stop
working. Hawkins v. First Union Corp. Long-Term Disability
Plan, 326 F.3d 914, 918 (7th Cir. 2003). The same ought to be
true in this context. If the Holders pooled resources to
maintain their family income during the time of the serious
health condition, they should not be punished for their
heroic efforts.
    For now, we can leave this as food for thought for the
next case or for Congress’ consideration. The court
determined that, having granted Holder FMLA leave for
some time, it was estopped from claiming he was not
entitled to that leave. Even under the State’s unproven
bifurcated entitlement analysis, any reliance that Holder
may have placed when he thought he was “entitled” would
have applied under either definition of “entitled”—
threshold entitlement or date specific entitlement.
    The State argues that Holder’s reliance upon the State’s
approval of his FMLA leave was not reasonable—that the
Department’s approval of his application for intermittent
leave for his wife’s condition could not have been
interpreted as a “carte blanche” grant to take absences of
FMLA leave even on days she worked and thus was not
incapacitated. Because we have concluded that Holder’s
eligibility for leave had been resolved and the State was
No. 12-1456                                                           19

estopped from arguing about it, we need not address this
issue. 2
    In short, because the State was estopped from arguing
about Holder’s entitlement to leave, and the parties had
stipulated that Holder’s sixtieth day of leave was January 31,
2008, there was only one reasonable conclusion for the jury
to make. The only real remaining issue for the jury was
whether it was reasonable for Holder to rely on the State’s
approval after the sixtieth day of leave —a question not at
issue in this appeal.
    Other than the bifurcated entitlement argument, the
State’s defense hinged primarily on the fact that the
defendants’ promise to pay on the eve of trial mooted the
issue as to the January 2008 premiums (the State actually
argues that it did not moot the issue, but rather negated the
injury—more on this later). The promise involved a
statement that the State would “waive” $864.17 that it
claimed Holder still owed to the State for premiums for
months that Holder was not entitled to leave and would
issue a check in the amount of $357.93 to cover the balance of
the amount that that had been withheld from Holder’s pay
to reimburse the State for the insurance premiums. Three
days before jury selection, the defendants moved to amend
the pre-trial order to delete Holder’s claim regarding
January 2008, stating that “[a]s of October 21, 2011,
Defendant CMS has directed the Comptroller to reimburse


2  Again, although it was not an issue raised in this case, the
reasonableness of Holder’s conclusion that his wife had a serious
medical condition that required him to stay home despite the fact that
she could physically care for her mother, certainly could depend on how
one interprets serious conditions that may still allow a family member to
perform some or all of the functions of a job with some help from the
FMLA leave-taking family member.
20                                                  No. 12-1456

to Plaintiff the amount of the employer’s contribution to his
health insurance premiums for January 2008.” (R. 57, p.1).
    The State claimed that its initial theory of the case—that
Holder was not entitled to take 110 of his 133 absences as
FMLA leave—had been rejected at summary judgment and
that it was only when preparing the defendants’ witnesses
for trial that it determined that Holder was not responsible
for his health insurance premiums for January 2008. The
court issued its summary judgment order on July 25, 2011,
and yet it was not until the eve of trial on October 21, that
the defendants confessed that they had improperly held
Holder accountable for the January 2008 premiums. (R. 57).
    The district court judge, demonstrating his displeasure
that the State conceded error on the January, 2008 premiums
just before trial, stated:
     I’m concerned that the State on the, on the eve of a
     trial all of a sudden acknowledges that they are
     wrong for January when this, this case has been
     litigated for two years, has January in the mix, and all
     of a sudden the State’s saying, well, you’re not
     entitled to liquidated damages or attorney’s fees
     because we’re going to pay you for January. I have
     a—I may have a problem with that.
(R. 86 at p. 21).
    The defendants then noted that the State would not be
paying interest as “interest is only available, as are
liquidated damages, in the case of a judgment of a violation.
Id. at 22.
   The court’s concern is one that has arisen in a variety of
contexts since the Supreme Court eliminated a catalyst
theory of liability in Buckhannon Bd. and Care Home, Inc. v.
W.Va. Dept. of Health and Human Res., 532 U.S. 598 (2001).
No. 12-1456                                                   21

Prior to Buckhannon a party could argue that it had prevailed
if it achieved the desired outcome of litigation even if the
new situation resulted from a voluntary change in the
defendant's conduct. Id. at 600. Rejecting the catalyst theory,
Buckhannon now requires a “material alteration in the legal
relationship of the parties” in the form of a court-ordered
judgment or consent decree before a court can award
attorneys fees. Id. at 604. As this court and others have
noted, such a rule can have the effect of prolonging
litigation, only to have a defendant who sees the writing on
the wall settle at the last minute to avoid attorneys fees, class
certification—or in this case attorneys fees, liquidated
damages, and interest. See Scott v. Westlake Servs. LLC 740
F.3d 1124, 1126 n.1 (7th Cir. 2014) (“since most plaintiffs are
happy to have defendants surrender, this tactic is most
controversial as a means to short-circuit a looming class
action or as a means to avoid paying attorney fees and
costs.”); Bingham v. New Berlin Sch. Dist. 550 F.3d 601, 604
(7th Cir. 2008) (noting that the Buckhannon decision may
encourage late settlement or other attempts to game the fee-
shifting system).
     The State insists that its argument is not one about
mootness, but rather about lack of injury. This is a red
herring. Whether a case becomes moot because of an offer to
make whole or was moot from the start because the plaintiff
lacked an injury, the analysis involves the same inquiry—
that is, whether there is an actual case or controversy for a
federal court to decide. Once a defendant offers to satisfy the
plaintiff’s entire demand, there is no dispute over which to
litigate and thus no controversy to resolve. Rand v. Monsanto
Co., 926 F.2d 596, 598 (7th Cir. 1991). But the mere promise to
pay some portion of what the plaintiff might have been
entitled to after a suit does not render the case moot. The
proper test for mootness on appeal is “not whether we may
22                                                              No. 12-1456

return the parties to the status quo ante, but rather, whether
it is still possible to ‘fashion some form of meaningful relief’
to the appellant in the event he prevails on the merits.” Flynn
v. Sandahl, 58 F.3d 283, 287 (7th Cir. 1995). “[S]o long as the
plaintiff has a cause of action for damages, a defendant’s
change in conduct will not moot the case.” Buckhannon, 532
U.S. at 608-09. In this case the damages provision of the
FMLA provides for (1) actual lost wages and/or benefits;
(2) interest on that amount; and (3) liquidated damages in
the amount equal to the lost wages and/or benefits. 29
U.S.C. § 2617(a)(1)(A)(i).
    The defendant waived one portion of the January
premium and offered to send a check for the other. It did not
offer to pay interest or liquidated damages which this circuit
has declared to be the norm in FMLA cases. 29 U.S.C.
§ 2617(a)(1)(A); Ryl-Kuchar v. Care Ctrs., Inc. 565 F.3d 1027,
1030 (7th Cir. 2009). We have recently noted that if a
defendant offers to pay only what it thinks might be due, the
offer does not render the plaintiff’s case moot. Scott, 740 F.3d
at 1126-27, citing Gates v. Towery, 430 F.3d 429, 431–32 (7th
Cir. 2005). The FMLA contemplates that a plaintiff whose
rights have been violated under the FMLA is entitled to
liquidated damages and interest, and thus an offer that does
not include those is not an offer for full relief. 3 We have


3 The basic purpose of interest, after all, is to put a party in the position it
would have been in had it been paid immediately, and therefore ensure
that a party is fully compensated for its loss. Am. Nat. Fire Ins. Co. ex rel.
Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc. 325 F.3d 924, 935
(7th Cir. 2003). We need not determine whether liquidated damages are
compensatory or punitive, although under the similar Fair Labor
Standards Act they are compensatory and not punitive. Overnight Transp.
Co. v. Missel, 316 U.S. 572, 583-84 (1942); Coston v. Plitt Theatres, Inc., 831
F.2d 1321, 1328 n.2 (7th Cir. 1987), rev’d on other grounds, 108 S. Ct. 1990
No. 12-1456                                                             23

noted that in this situation, like the one in Scott, Holder still
has a stake in the action because he may obtain additional
relief if he prevails. The plaintiff's stake is negated only if no
additional relief is possible. Id.
    It is true that an employer can rebut the presumption of
liquidated damages if it can prove that its action was taken
in “good faith” and that it had “reasonable grounds for
believing that the act or omission was not a violation,” of the
Act. 29 U.S.C. § 2617(a)(1)(A)(iii). The district court,
however, concluded that the defendants had “not carried
their burden of showing that their decision to withhold from
Holder’s wages the costs of the employer’s contribution for
health insurance benefits for January 2008 was in good
faith.” (R. 77, p.5). We review, for abuse of discretion only,
the district court’s decision to award liquidated damages.
Shea v. Galaxie Lumber & Const. Co., Ltd., 152 F.3d 729, 733
(7th Cir. 1998) (applying general principle in Fair Labor
Standards Act case); Pagan-Colon v. Walgreens of San Patricio,
Inc., 697 F.3d 1, 14 (1st Cir. 2012) (in FMLA context).
Consequently, just as in Scott, the defendant’s offer was not a
full offer to pay all of what was due, but rather all of what
the defendants believed was due under the defendants’
theory that their actions were all taken in good faith and
reasonable.
   In any event, it is hard to imagine that the offer made on
the eve of trial, more than a year after the suit was filed,
_______________________
(1988). At least one circuit has explicitly discussed the issue and carried
this conclusion over to the FMLA. Jordan v. U.S. Postal Serv., 379 F.3d
1196, 1202 (10th Cir. 2004). In any event, the existence of interest is
enough for us to conclude that Holder was not made whole by the
defendants’ offer.
24                                               No. 12-1456

constitutes action made in good faith. The defendants
posited a theory that it was not until the district court
rejected their initial theory of the case at summary judgment
and it was preparing its witnesses for trial that they
determined that Holder was not responsible for the State’s
portion of his health insurance premium for January 2008.
The defendants fail to explain how their change in strategy
revealed the new information which was just as available to
the defendants from the start of the case. After all, the
defendants were the ones who held the insurance records
and the absence records. They have not explained how they
came to conclude that the January payments were
improperly withheld. And in any event, the court entered its
summary judgment order on July 25, 2011. The defendants
have offered no explanation as to why it did not re-evaluate
its case then to determine whether Holder was still
responsible for premiums and instead waited until the eve of
trial.
    The State has included a kitchen sink worth of arguments
in this small appeal and we have ignored some minor issues
that make no difference to the outcome. The ones we have
discussed give us ample reason to conclude that the
judgment of the district court should be AFFIRMED.
