                                        No. 04-6220
                                  File Name: 05a0848n.06
                                  Filed: October 17, 2005

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

CHRISTY WILKERSON,                                  )
                                                    )
   Plaintiff-Appellee,                              )
                                                    )   ON APPEAL FROM THE
       v.                                           )   UNITED STATES DISTRICT
                                                    )   COURT FOR THE WESTERN
AUTOZONE, INC.,                                     )   DISTRICT OF TENNESSEE
                                                    )
   Defendant-Appellant.                             )



Before:       NELSON and SUTTON, Circuit Judges, and ZATKOFF, District Judge.*


       DAVID A. NELSON, Circuit Judge. In this action brought under the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., the plaintiff employee claims that

the defendant employer violated the statute in bad faith by refusing to reinstate her after she

took FMLA leave. A jury found in favor of the plaintiff, and the district court denied a

defense motion for judgment as a matter of law or, in the alternative, for a new trial.

       On appeal, the defendant argues in essence that the district court erred in its

instructions to the jury, erred in entering judgment on a verdict that was not supported by the

evidence, and abused its discretion in declining to grant a new trial on weight-of-the-




       *
        The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 04-6220
Page 2

evidence grounds. Unpersuaded by the defendant’s arguments, we shall affirm the district

court’s disposition of the case in all respects.


                                               I


       The plaintiff, Christy Wilkerson, started working for the defendant, AutoZone, Inc.,

in 1999. Ms. Wilkerson became pregnant in the spring of 2002 and started using FMLA

leave intermittently. Between March 21 and November 6, 2002, Ms. Wilkerson took a total

of approximately 110 hours of leave. On November 17, 2002, she began a continuous leave

of absence from which she planned to return after the birth of her child.

       Ms. Wilkerson testified that an AutoZone assistant human resources manager, Marcia

Bennett, told her that the FMLA leave would include six weeks before the baby’s birth and

six weeks afterward. Ms. Wilkerson gave birth to her baby on December 21, 2002. She

expected to return to work six weeks later, on February 2, 2003.

       In fact, Ms. Wilkerson exhausted her 480 hours of yearly FMLA leave on or about

January 19, 2003.1 At no time, however, did AutoZone notify Ms. Wilkerson that her FMLA

leave would expire, or had expired, on that date.

       The company presented evidence that on November 19, 2002, just after Ms.

Wilkerson began her continuous leave of absence, AutoZone learned that a urine sample she



       1
       The FMLA entitles eligible employees to 12 workweeks of medical/family leave
during any 12-month period. 29 U.S.C. § 2612(a). Ms. Wilkerson worked 40-hour weeks.
No. 04-6220
Page 3

had provided for a random drug test was adulterated with nitrite, a chemical used to mask the

presence of certain controlled substances. The matter was referred to an AutoZone attorney,

Timothy Harrison, who telephoned Danita Watson, AutoZone’s human resources manager,

and recommended that Ms. Wilkerson be fired. Ms. Watson said that Ms. Wilkerson was on

leave, and Harrison advised her “to wait until Ms. Wilkerson returned from leave and then

carry out the recommendation.”

       Ms. Watson told her assistant, Ms. Bennett, that Ms. Wilkerson would be discharged

upon her return from leave. The company’s evidence indicated that Joseph Buehrle, an

operations manager at the facility where Ms. Wilkerson worked, was also informed that Ms.

Wilkerson would be fired because of a failed drug test.

       Because a company doctor who tried to reach Ms. Wilkerson by telephone used an

outdated area code and never got in touch with her, Ms. Wilkerson was not given an

opportunity to explain the drug test results. Ms. Wilkerson testified at trial that she had

never used illegal drugs, that she was nearly eight months pregnant at the time of the test, that

she had never heard of the adulteration of urine by use of masking substances, and that

because she was selected randomly for the drug test she would not have been prepared to

adulterate her urine even if she had known how.

       On January 22, 2003, Ms. Wilkerson telephoned Ms. Watson to inquire about

returning to work before February 2. Without mentioning that the company had decided to

fire her, Ms. Watson told Ms. Wilkerson she would need a doctor’s note releasing her to
No. 04-6220
Page 4

work. Ms. Wilkerson thereupon called her doctor’s office and asked a nurse to find out

whether she could go back to work early. The nurse said she would ask the doctor “and if

he okayed it . . . she would send [a] fax to AutoZone.”

       Ms. Wilkerson’s January 22 call to Ms. Watson was placed at 2:05 p.m. A few

minutes later Ms. Wilkerson telephoned AutoZone again and asked operations manager

Buehrle whether the doctor’s note had arrived. Mr. Buehrle — who also said nothing to Ms.

Wilkerson about the company’s having decided to fire her — replied that he had no

knowledge of a fax from the doctor. Ms. Wilkerson tried to reach Ms. Watson again at 2:25

p.m., but either was unable to get through to her or was told by Ms. Watson that the doctor’s

note had not yet arrived.

       Within minutes of the 2:25 telephone call, Ms. Wilkerson’s doctor faxed Ms. Watson

a statement releasing Ms. Wilkerson to work effective January 23, 2003. Ms. Watson did

not inform Ms. Wilkerson that the release had been received.

       Apparently assuming that Ms. Wilkerson would return to work for her next scheduled

shift, which was the January 26 night shift, Ms. Watson prepared a written separation notice

that said Ms. Wilkerson was being discharged for “violation of drug policy and loss of

confidence.” Ms. Watson advised Mr. Buehrle that Ms. Wilkerson would be discharged

when she reported to work on January 26. Mr. Buehrle then suggested that he and Ms.

Watson call Ms. Wilkerson at home to save her the trip. Mr. Buehrle and Ms. Watson called

the telephone number in Ms. Wilkerson’s file (the correct number, it should be noted) and
No. 04-6220
Page 5

reached an answering machine. Mr. Buehrle left a message asking Ms. Wilkerson to call him

back.

        Ms. Wilkerson returned the call on January 23, 2003, as soon as she received the

message. Mr. Buehrle asked her if she had talked to Ms. Watson. Ms. Wilkerson replied

that she had spoken to Ms. Watson the previous day (January 22), and Buehrle told her that

was all he wanted to know.

        Ms. Wilkerson then asked whether her doctor’s note had been received, and Buehrle

said “he hadn’t seen it.” Ms. Wilkerson telephoned Ms. Watson later the same day to inquire

again about the doctor’s note, but Ms. Watson was unavailable. Ms. Wilkerson left a

message in which she gave her mobile phone and home phone numbers, but Ms. Watson did

not call back.

        On January 26, 2003, about an hour before the start of her shift, Ms. Wilkerson called

AutoZone and spoke to operations manager Joey Hamm. She asked again about the doctor’s

note, and Mr. Hamm said he knew nothing about it. Ms. Watson was not at work, January

26 being a Sunday. Ms. Wilkerson did not report for work that night and did not explicitly

tell Mr. Hamm she would not be coming in.

        On January 27, 2003, Ms. Wilkerson telephoned Ms. Watson again about the doctor’s

note. Again Ms. Watson was unavailable. Ms. Wilkerson left a message for Ms. Watson

to call her back. Again Ms. Watson did not return Ms. Wilkerson’s call. Ms. Wilkerson did

not report for work that night either.
No. 04-6220
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       Ms. Watson told house counsel Harrison that Ms. Wilkerson had missed two

scheduled shifts.    Mr. Harrison recommended a discharge pursuant to             AutoZone’s

attendance policy. The attendance policy provided that two instances of “no call–no show”

— i.e., absence without calling in — “will result in immediate termination.” The policy went

on to say that “[f]ailure to report to work for two consecutive days without notification . . .

is considered a voluntary resignation.”

       Ms. Wilkerson came to work on February 2, 2003, exactly six weeks after the birth

of her child. At that point Ms. Watson and operations manager Ronnie Babb told Ms.

Wilkerson that her employment was being terminated because of her failure either to report

for work on January 26 or to call in then.

       Ms. Wilkerson sued AutoZone under the FMLA. (Ms. Watson was also named as a

defendant, but she was later dismissed by stipulation of the parties.) The complaint alleged

that AutoZone had interfered with Ms. Wilkerson’s right to reinstatement following FMLA

leave and had retaliated against her for taking FMLA leave.

       The case was tried to a jury, and the jury returned a verdict in favor of Ms. Wilkerson.

In response to special interrogatories the jury found that Ms. Wilkerson had shown that she

satisfied the statutory requirements to be returned to her job on February 2; that the

preponderance of the evidence did not show that AutoZone would have discharged her

[presumably on the basis of the drug test] regardless of her FMLA leave; that she was

entitled to back pay in the amount of $28,000; and that AutoZone had failed to demonstrate
No. 04-6220
Page 7

good faith, not having shown that it reasonably believed the discharge to be in compliance

with the statute. Based on the company’s failure to persuade the jury of its good faith, the

district court then awarded “liquidated damages” of $28,000 pursuant to 29 U.S.C. §

2617(a)(1)(A)(iii). Judgment was entered against AutoZone for a total of $56,000.

       AutoZone moved for judgment as a matter of law or, in the alternative, for a new trial.

The district court denied the motion. In so doing, the court held that a reasonable jury could

find (1) that AutoZone discharged Wilkerson because of her FMLA leave; (2) that

AutoZone’s stated reason for the discharge — violation of the attendance policy — was a

pretext; (3) that Ms. Watson’s failure to return Ms. Wilkerson’s telephone calls constituted

interference with the plaintiff’s FMLA rights; (4) that Ms. Wilkerson was on FMLA leave

until the day she was discharged; (5) that AutoZone would not have discharged Wilkerson

because of the drug test; and (6) that AutoZone did not act in good faith. The court declined

to enter judgment for the defendant as a matter of law. Rejecting a claim of error in the jury

instructions, and being satisfied with the jury’s verdict, the court also declined to grant a new

trial. AutoZone has filed a timely appeal.
No. 04-6220
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                                              II


       We turn first to Ms. Wilkerson’s claim that AutoZone “interfered” with her right to

have her job restored after taking FMLA leave.            AutoZone challenges the jury’s

determination that Ms. Wilkerson remained qualified for reinstatement as of February 2,

2003, and the company denies that it interfered with her statutory right to return.

       “[T]he appellate court reviewing a Rule 50 motion looks to see if the record contains

evidence upon which a reasonable trier of fact could have concluded as the jury actually did.”

 Williams v. Nashville Network, 132 F.3d 1123, 1131-32 (6th Cir. 1997). Here we are

satisfied that a reasonable trier of fact could have come out where Ms. Wilkerson’s jury did.

       An employee who takes FMLA leave is entitled to be restored to the same or an

equivalent position “on return from such leave.” 29 U.S.C. § 2614(a)(1). AutoZone argues

that an erroneous instruction led the jury to find that Ms. Wilkerson returned from FMLA

leave on February 2, 2003, when, in fact, Ms. Wilkerson had exhausted her qualifying leave

approximately two weeks earlier. This mistaken finding, says AutoZone, led the jury

mistakenly to conclude that Ms. Wilkerson was entitled to reinstatement on February 2.

       The district court instructed the jury that an

       “employer must notify an employee when leave is designated as FMLA-
       qualifying leave. The employer’s notice to the employee that the leave has
       been designated as FMLA leave may be oral or in writing. If the notice is oral,
       it shall be confirmed in writing no later than the following payday unless the
       payday is less than one week after the oral notice, in which case the notice
       must be no later than the subsequent payday. The written notice may be in any
       form, including a notation on the employee’s pay stub.
No. 04-6220
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       An employer that does not notify an employee about designated leave as
       FMLA may not count the leave against the employe[e]’s FMLA entitlement
       if the employee was prejudiced by the . . . employer’s failure to provide timely
       information of the FMLA designation.” (JA 377-78.)

AutoZone contends that this instruction misapprehends Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81 (2002).

       In Ragsdale the Supreme Court struck down a regulation, 29 C.F.R. § 825.700(a)

(2001), under which an employer that failed to designate an employee’s leave as FMLA-

qualifying was prohibited from counting the leave against the employee’s FMLA entitlement.

See 535 U.S. at 89-96. The regulation was invalid, the Court explained, “because it alter[ed]

the FMLA’s cause of action in a fundamental way: It relieve[d] employees of the burden of

proving any real impairment of their rights and resulting prejudice.” Id. at 90. By not

requiring a showing of prejudice, the regulation allowed an employee to sue under the FMLA

without having been denied the Act’s substantive entitlements. See id. at 90-91.

       In the case at bar the challenged jury instruction avoids the pitfall that proved to be

the undoing of the regulation at issue in Ragsdale. The instruction comports with Ragsdale,

it seems to us, by stating that prejudice must be shown before an employer’s failure to notify

its employee of the FMLA designation will bar the employer from counting the leave against

the entitlement.

       AutoZone suggests that Ms. Wilkerson’s FMLA leave ended as a matter of law when

her doctor released her to work effective January 23, 2003. The jury could reasonably find,
No. 04-6220
Page 10

however, that Ms. Wilkerson was unaware of the company’s receipt of the release despite

her best efforts to learn from AutoZone whether a release had been received. And even if

the FMLA leave did end on January 23, we think the jury was entitled to find that AutoZone

interfered with Ms. Wilkerson’s right to be reinstated because Ms. Wilkerson would have

returned to work on January 26, the date of her next scheduled shift, but for Ms. Watson’s

failure to inform her that AutoZone had received the release from the doctor.

       We also think a reasonable jury could conclude on equitable estoppel grounds that Ms.

Wilkerson was entitled to reinstatement on February 2, 2003. Ms. Wilkerson testified that

Ms. Bennett told her she had six weeks of post-partum FMLA leave, and it is undisputed that

AutoZone never notified Ms. Wilkerson of an earlier end-date. In these circumstances the

jury could find that AutoZone was equitably estopped to assert that the FMLA leave expired

before February 2. See generally Kosakow v. New Rochelle Radiology Associates, P.C., 274

F.3d 706, 725-26 (2d Cir. 2001) (“Under federal law, a party may be estopped from pursuing

a claim or defense where: 1) the party to be estopped makes a misrepresentation of fact to

the other party with reason to believe that the other party will rely upon it; 2) and the other

party reasonably relies upon it; 3) to her detriment”). Here the jury was instructed on the

doctrine of equitable estoppel and AutoZone did not object to that instruction.

       If Ms. Wilkerson had a right to reinstatement on February 2, 2003, AutoZone

obviously “interfere[d] with . . . or den[ied] the exercise of or the attempt to exercise” that

right (see 29 U.S.C. § 2615(a)(1)) unless AutoZone would have fired Ms. Wilkerson anyway
No. 04-6220
Page 11

because of the drug test. (As we pointed out in Pharakhone v. Nissan North America, Inc.,

324 F.3d 405, 407 (6th Cir. 2003) (internal quotation marks and brackets omitted), “[t]he right

to reinstatement under the FMLA is . . . not absolute. An employer need not reinstate an

employee who would have lost his job even if he had not taken FMLA leave.” Id.)

       AutoZone presented substantial evidence that it would have fired Ms. Wilkerson

because of her drug test results had she returned from leave on January 26, 2003, or had she

not taken leave at all. But the jury specifically rejected that evidence, answering “No” when

asked whether AutoZone “would have discharged [Wilkerson] regardless of her leave under

the FMLA.” (JA 515.)

       We cannot say that the jury’s finding was baseless. AutoZone’s normal policy was

to discuss suspicious drug test results with the employee, and the jury might well have

believed that the company would have changed its mind about Ms. Wilkerson had the

company taken the trouble to locate her correct telephone number and talk with her about the

test. It is undisputed, in any event, that AutoZone did not, in fact, rely on Ms. Wilkerson’s

test results as ground for her discharge. Mr. Harrison explained that it was “easier” to assign

the supposed violation of AutoZone’s attendance policy as the reason for the discharge, but

the jury was not required to accept that explanation. And as discussed more fully below, the

“no show no call” rationale for Ms. Wilkerson’s discharge could reasonably be found to have

had no basis in fact. In short we think that a reasonable jury could have found, as this jury
No. 04-6220
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did find, that AutoZone wrongfully denied or interfered with Ms. Wilkerson’s right to

reinstatement.


                                              III


       “Liquidated damages” in an amount equal to the plaintiff’s lost wages and benefits

(plus interest) are awarded in FMLA cases unless the defendant proves that it acted in good

faith and with reasonable grounds for believing that its actions did not violate the Act. See

29 U.S.C. § 2617(a)(1)(A)(iii) and Chandler v. Specialty Tires of America (Tennessee), Inc.,

283 F.3d 818, 827 (6th Cir. 2002). In the case at bar the jury did not find that AutoZone acted

in good faith and with reasonable grounds for believing that it was not in violation of the

statute. We are not persuaded that AutoZone succeeded in establishing its good faith as a

matter of law.

       For one thing, a reasonable jury could disbelieve AutoZone’s assertion that it

discharged Ms. Wilkerson for violation of its attendance policy. The evidence shows that

Ms. Wilkerson called AutoZone both on January 26 and on January 27, 2003. Admittedly,

she did not say in so many words that she would be absent from work. But she did ask Mr.

Hamm, on January 26, whether her doctor’s note had arrived. When Hamm said he knew

nothing about it, Wilkerson asked to speak to Ms. Watson, who was not at work. We think

it would be reasonable to infer that Mr. Hamm understood, or should have understood, that

Ms. Wilkerson did not intend to come to work without confirmation that AutoZone had
No. 04-6220
Page 13

received a release from her doctor. Ms. Wilkerson left an urgent message for Ms. Watson

on January 27. Had Ms. Watson returned the call and acknowledged receipt of the doctor’s

note, Wilkerson would have reported to work that evening — or so the jury could have

presumed.

       A reasonable jury could thus conclude that AutoZone’s attendance policy did not

warrant Ms. Wilkerson’s discharge. Ms. Wilkerson had been told that her FMLA leave ran

until February 2 and that she could not return to work before then without a doctor’s note.

Despite leaving repeated messages for Ms. Watson and speaking with Messrs. Buehrle and

Hamm, Ms. Wilkerson was unable to confirm that the release had been received. So far as

she knew, she remained on FMLA leave. At least one of the calls Ms. Wilkerson made on

January 26 and 27 should have led AutoZone to doubt that she would be at work before

February 2.

       Considering all of the evidence, to repeat, the jury was entitled to conclude that the

stated reason for Wilkerson’s discharge — violation of the attendance policy — had no basis

in fact. That being so, the jury was not required to find that AutoZone acted in good faith.

The jury found, as it was entitled to find, that Ms. Wilkerson had a statutory right to

reinstatement; the jury was not required to find that AutoZone genuinely believed that Ms.

Wilkerson had no right to reinstatement.

       Given the wording of the special interrogatories in the verdict form, we cannot be

certain that the jury thought AutoZone guilty of “retaliation.” If the jury was persuaded that
No. 04-6220
Page 14

the company was retaliating against Ms. Wilkerson for having taken FMLA leave, that in

itself would justify the jury’s finding on the good faith issue. We need not address the

question whether there is sufficient evidence to support a finding of retaliation, however,

because we are satisfied that the jury could properly award both actual and punitive damages

based solely on the findings that AutoZone had violated the statute by denying reinstatement

and had done so without a reasonable belief that it was acting in compliance with the statute.

       It remains to be said, finally, that we see no basis for second-guessing the district

court’s denial of the motion for a new trial. The district court heard all the evidence and was

not persuaded that the verdict was against the manifest weight of the evidence. Trial courts

have broad discretion in deciding such questions, and we have seen nothing to suggest that

the district court abused its discretion in this instance.

       AFFIRMED.
