     Case: 13-20674      Document: 00512864257         Page: 1    Date Filed: 12/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20674
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 10, 2014
                                                                           Lyle W. Cayce
DARLENE ALEXANDER,                                                              Clerk

                                                 Plaintiff−Appellee,

versus

SERVISAIR, LLC,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:12-CV-817




Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Darlene Alexander, a former employee of Servisair, LLC (“Servisair”),
sued it for violations of the Family and Medical Leave Act (“FMLA”) and the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 13-20674
Fair Labor Standards Act (“FLSA”). The jury found that Servisair had violated
Alexander’s FMLA rights and awarded her one dollar, which the district court
increased to $74,008 and awarded attorney’s fees.        Servisair appeals the
increase, the fees, and the jury instructions. Because the judgment included
improper additur, we affirm in part and vacate and remand in part for rein-
statement of the jury award and recalculation of the fees.


                                      I.
      On May 9, 2011, Alexander felt sick and went home from work. She
called her manager and left a message stating that she was ill and would not
be returning that day. She stayed home the next two days, leaving a voicemail
for her manager each day.
      On May 12, Alexander’s supervisor Sandra Rayo called Alexander while
Alexander was waiting to see a doctor. The content of the conversation is con-
tested: Alexander presented evidence that she gave notice to her employer that
she would be taking medical leave; Servisair presenting evidence that no such
notice was given.
      Alexander’s doctor diagnosed her with an anxiety disorder and recom-
mended that she take time off from work. On May 13, Alexander requested
FMLA leave from the Reed Group, which was responsible for administering
Servisair’s FMLA policy. The parties dispute whether Alexander’s supervisors
were aware that she had requested FMLA leave. On that same day, Alexander
stopped calling in daily to notify Servisair that she was sick and would be
absent.
      On May 18, Alexander’s supervisors terminated her for the stated reason
that she had violated a company policy requiring employees to call in before
missing work. The parties disputed the policy and its applicability to employ-
ees waiting to be approved for FMLA leave. Servisair presented evidence that
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                                       No. 13-20674
the punishment for two consecutive no-call/no-show days was termination. On
June 6, the Reed Group notified Alexander that it had approved her for FMLA
leave retroactive to May 10.


                                              II.
       Alexander sued Servisair, claiming it had retaliated against her for
exercising her rights under the FMLA, 1 interfered with her rights under the
FMLA, 2 and violated the FLSA. The jury found Servisair not liable on the
FLSA claims and the FMLA retaliation claim but found it liable for interfering
with Alexander’s rights under the FMLA and awarded one dollar in damages.
       On a motion by Alexander, the district court increased the award to
$37,004, the undisputed amount of wages lost by Servisair during her period
of unemployment. Because the jury found that Servisair had acted in bad
faith, the court doubled the damages to $74,008 under the liquidated-damages
provision, 29 U.S.C. § 2617(a)(1)(A)(iii). The court also awarded Alexander
$91,728.75 in attorney’s fees.
       Servisair contends that the district court engaged in unconstitutional
additur when it increased the jury award. Servisair also claims that Alexander
was not entitled to attorney’s fees because she was not the prevailing party.
Finally, Servisair faults the exclusion of its proposed jury instructions. We
agree that there was unconstitutional additur but disagree that Alexander was
not the prevailing party and that the jury instructions were insufficient.




       1“It shall be unlawful for any employer to discharge or in any other manner discrimin-
ate against any individual for opposing any practice made unlawful by this subchapter.”
29 U.S.C. § 2615(a)(2).
       2“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C.
§ 2615(a)(1).
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                                            III.
       Although the rule against additur prohibits a court from increasing the
amount of damages awarded by a jury, Dimick v. Schiedt, 293 U.S. 474, 482
(1935), there is an exception: If the jury has determined liability and “there is
no valid dispute as to the amount of damages[,]” the court can increase the
award to the undisputed amount without violating the prohibition on additur. 3
The district court concluded that the statute entitled Alexander to her lost sal-
ary between her termination by Servisair and her being hired in a new job and
that such damages were not discretionary. Because Servisair had not disputed
Alexander’s evidence showing that she had lost $37,004 in salary from her ter-
mination, the court concluded that the amount of damages was not in dispute
and increased the base damages to $37,004. 4
       Servisair contends that the amount of damages was in dispute because
the jury could have found that Servisair’s interference did not cause Alexan-
der’s damages. We agree. The statutory text and caselaw plainly require a
causal link between the interfering activity and the claimed damages, and
Servisair presented evidence on causation as part of its defense.
       The FMLA’s damages provision makes Servisair liable only for those
“wages, salary, employment benefits, or other compensation denied or lost to
such employee by reason of the violation.” 29 U.S.C. § 2617(a)(1)(A)(iii). The
remedy for an interference claim “is tailored to the harm suffered,” and the
remedial statute “provides no relief unless the employee has been prejudiced


       3Moreau v. Oppenheim, 663 F.2d 1300, 1311 (5th Cir. Dec. 1981) (quoting Decato v.
Travelers Ins. Co., 379 F.2d 796, 798 (1st Cir. 1967)); see also Roman v. W. Mfg., Inc., 691
F.3d 686, 702 (5th Cir. 2012) (applying Moreau to allow an increase of a jury’s award of past
medical expenses to the uncontested amount).
       4 The district court doubled these damages to $74,008 because the jury found that
Servisair had acted in bad faith. The FMLA provides for liquidated damages equal to the
damages and interest unless the employer acted in good faith. 29 U.S.C. § 2617(a)(1)(A)(iii).
That finding and doubling are not at issue in this appeal.
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                                       No. 13-20674
by the violation.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89
(2002). This was included in the jury instructions: “If you find that Defendant
violated the FMLA, then you must determine whether Defendant has caused
Plaintiff damages and, if so, you must determine the amount, if any, of those
damages.” And Question 3, telling the jury to enter the amount of damages if
it found a violation, instructed it to skip the next question about bad faith if it
answered “$0.” Because the jury was presented with evidence that could lead
it reasonably to conclude that Alexander’s lost wages were the result of her vio-
lating a no-call/no-show policy and not the result of any interference, the
amount of damages was subject to a valid dispute and was not eligible to be
increased by the identified additur exception.
       The law requires a causal link between the employer’s interference and
the claimed damages. Not presented here is whether a jury would err if it were
to find liability for interference without any damages. 5 Likewise, we need not
decide whether nominal damages are available under the FMLA. 6 Causation
is an issue entrusted to the jury, and we have no challenge to the sufficiency of
the evidence.



       5 The Supreme Court in Ragsdale, though not ruling on this question, distinguished
between the requirements of an FMLA claim (located at § 2615) and the necessity of prejudice
before damages can be available under § 2617. See Ragsdale, 535 U.S. at 89. Prejudice is a
necessary element of an FMLA interference claim. See Cuellar v. Keppel Amfels, L.L.C., 731
F.3d 342, 347 (5th Cir. 2013) (“To succeed on [an interference] claim, [the plaintiff] must at
least show that [the defendant] interfered with, restrained, or denied her exercise or attempt
to exercise FMLA rights, and that the violation prejudiced her.”). Regardless, the jury did
not award zero dollars.
       6 Several courts have held that nominal damages are unavailable under the FMLA.
See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001); Montgomery v.
Maryland, 72 F. App’x 17, 19 (4th Cir. 2003); see also Franzen v. Ellis Corp., 543 F.3d 420,
426 n.6 (7th Cir. 2008) (“[W]e need not determine whether nominal damages otherwise are
available under the FMLA.”). Though Alexander’s reply brief contends that nominal dam-
ages are not available under the FMLA, the issue is not properly before us, and even if nom-
inal damages are unavailable, that does not mean that the uncontested amount of damages
was $37,004.
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                                              IV.
       The statute allows attorney’s fees “in addition to any judgment awarded
to the plaintiff.” 29 U.S.C. § 2617(a)(3). Servisair contends that damages of
one dollar are insufficient to make Alexander the prevailing party. That notion
is groundless: Even an award of nominal damages is sufficient to render the
plaintiff the prevailing party. Farrar v. Hobby, 506 U.S. 103, 112 (1992).
       Like the statute in Farrar, however, the FMLA attorney’s-fees provision
allows only “a reasonable attorney’s fee.” 29 U.S.C. § 2617(a)(3). The reason-
ableness of a fee is determined in part by the degree of the plaintiff’s success. 7
“When a plaintiff recovers only nominal damages because of his failure to prove
an essential element of his claim for monetary relief, the only reasonable fee is
usually no fee at all.” Farrar, 506 U.S. at 115. The district court made its fee
calculation only after increasing the amount of damages from one dollar; on
remand, it should recalculate fees in light of the reinstated award and fees
incurred in defending that award on appeal.


                                              V.
       Servisair contends that the district court’s decision not to submit its pro-
posed jury instructions provides grounds for a new trial. 8 To succeed in its
challenge to the exclusion of a proposed instruction, Servisair must show four
things. First, it must have preserved its objection. Taita Chem. Co. v. Westlake
Styrene, LP, 351 F.3d 663, 667 (5th Cir. 2003). Second, it must show that
“viewing the charge as a whole, the charge creates ‘substantial and



       7   See Farrar, 506 U.S. at 115–16; Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983).
       8 Servisair asks for reinstatement of the original jury award to remedy the claimed
error in jury instruction. We review this issue to see whether a new trial is warranted. See
Aero Int’l, Inc. v. U.S. Fire Ins. Co., 713 F.3d 1106, 1113 (5th Cir. 1983) (“A new trial is the
appropriate remedy for prejudicial errors in jury instructions.”).
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                                  No. 13-20674
ineradicable doubts whether the jury has been properly guided in its
deliberations.’” Id. (quoting FDIC v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.
1994)). Third, even if the charge was erroneous, we will not reverse “if the
error ‘could not have affected the outcome of the case.’” Id. (quoting Mijalis,
15 F.3d at 1318)). Fourth, Servisair must show “that the proposed instruction
offered to the district court correctly stated the law.” Id.
      Servisair has not shown that the charge, viewed as a whole, created seri-
ous doubts whether the jury was properly guided. Servisair does not identify
an erroneous statement of the law in the instructions. At most, it contends
that the omission of its causation argument led the jury to confusion. As dis-
cussed above, the instructions and the verdict sheet told the jury that it needed
to consider causation. Servisair cannot demonstrate error merely by showing
that the instructions could have given more emphasis to a party’s stronger
arguments. A court “has discretion as to the substance and form of jury
charges as long as the jury is not misled and understands the issues.” Frei-
manis v. Sea-Land Serv., Inc., 654 F.2d 1155, 1163 (5th Cir. Unit A Sept. 1981).
      As evidence of insufficient instruction, Servisair points to the jury’s note
asking about firing FMLA applicants before they are approved for leave. The
note does not support Servisair’s contention. The question was unrelated to
causation, asking only the technical question whether an employee has an
interference claim for a termination that occurs before FMLA leave is
approved. Servisair has not shown that the instructions failed to answer that
question. Even if Servisair could show that the question gave insufficient
guidance regarding when an FMLA entitlement accrues, its proposed instruc-
tions are unrelated to that question, instead bearing on the requirement that
employees follow workplace policy.
      Because the jury was presented with a dispute as to the damages caused
by Servisair’s interfering behavior, the decision to increase the award does not
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qualify for the identified additur exception. The damages award is VACATED
and REMANDED with direction to reinstate the jury award. Even with an
award of one dollar, 9 however, Alexander was the prevailing party, and the
district court should calculate the appropriate amount of attorney’s fees on
remand. Servisair establishes no error in the jury instructions, so the finding
of liability is AFFIRMED.




       9 This appeal presents no challenge to the propriety of doubling the verdict to account
for Servisair’s bad faith, so the district court remains free to double that award in accordance
with 29 U.S.C. § 2617(a)(1)(A)(iii) if appropriate.
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