                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2793
                        ___________________________

                                    Ena J. Wages

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

           Stuart Management Corporation, doing business as StuartCo

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                             Submitted: May 13, 2015
                              Filed: August 10, 2015
                                  ____________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
                             ____________

MELLOY, Circuit Judge.

       Ena Wages sued her employer, Stuart Management Corporation (StuartCo),
alleging that StuartCo violated her rights under the Family and Medical Leave Act,
29 U.S.C. §§ 2601–2654. On the parties’ cross motions for summary judgment, the
district court granted summary judgment in favor of Wages on her FMLA claims. For
the reasons below, we affirm the judgment on liability but vacate and remand the
judgment on damages.
                                       I

      A. Facts

      StuartCo is a property management firm that runs approximately thirty
apartment complexes. Wages began working for StuartCo as a full-time caretaker at
one of its properties, Woodridge Apartment Homes, on November 17, 2008.
Generally, a caretaker is responsible for vacuuming, cleaning, mopping, washing
windows, and dusting. Caretakers are also responsible for snow removal. Wages
worked thirty hours per week at the complex. Her employee record was unblemished.

       In the summer of 2009, Wages learned she was pregnant. The doctor
considered her pregnancy to be high risk due to a previous, life-threatening, ectopic
pregnancy. Sometime in June or July, Wages contacted StuartCo’s human resources
department to inquire about post-birth benefits and leave. No one returned her call,
so Wages called human resources again a week later, stating that she wanted
information about FMLA leave and other forms of leave. The human resources
director, Deb Stachowski, did not recall receiving either call.

       Wages began experiencing abdominal pain in October 2009, so her doctor
directed her not to vacuum or mop and provided her a note for her employer. After
receiving the doctor’s note, StuartCo redistributed the vacuuming and mopping duties
to other employees. In addition, Stachowski contacted the doctor to verify no other
job duties were restricted.

       On November 2, 2009, Wages’s doctor wrote another note, stating Wages
could carry out all of her job responsibilities except snow removal. Stachowski
contacted the doctor regarding Wages’s previous restrictions. One of the doctor’s
assistants informed Stachowski that Wages still could not mop or vacuum. Wages’s
doctor had told Wages directly that she could resume vacuuming and mopping.

                                           -2-
      Wages experienced increased abdominal pain in November and missed three
days of work, November 9, 10, and 12, due to the pain. On November 12, her doctor
limited her to working no more than 20 hours per week. On Friday, November 13,
Wages worked 4.25 hours. She gave the November 12 doctor’s note to her
supervisor, Robin Fulton, on November 13. Fulton emailed it to Stachowski on the
same day.

      Fulton, Stachowski, and Dave Beddow, a StuartCo manager, met on November
13 to discuss Wages’s employment. At some point during the conversation, they
decided to terminate her employment. Fulton stated in a deposition that although
Wages was “getting by” with the initial restrictions, her reduction in hours precluded
Wages from completing “the essential functions of her job.” Wages was not
scheduled to work on Saturday, November 14, or Sunday, November 15. On
Monday, November 16, after Wages arrived at work, Fulton and Stachowski called
her into a meeting and fired her. StuartCo provided Wages a letter that stated
StuartCo was “unable to accommodate the work restrictions provided by your
physician.”

      After exhausting administrative remedies, Wages sued StuartCo on November
16, 2012, alleging violations of her rights under the FMLA, Title VII of the Civil
Rights Act of 1964, the Minnesota Parenting Leave Act (MPLA), and the Minnesota
Human Rights Act (MHRA). With respect to her FMLA claims, Wages alleged
StuartCo not only interfered with her FMLA rights, but retaliated against her after she
requested those rights. This appeal involves only Wages’s FMLA claims.




                                         -3-
      B. Procedural History

       In January 2014, Wages filed a motion for partial summary judgment on her
FMLA entitlement claim. StuartCo also filed a motion for summary judgment,
requesting dismissal of all claims. In May 2014, the district court granted summary
judgment in favor of Wages on her entitlement claim. And, “[a]lthough Wages did
not seek summary judgment on [her FMLA retaliation] claim,” the court sua sponte
granted summary judgment for Wages on that claim as well. However, the district
court granted summary judgment in favor of StuartCo on Wages’s Title VII, MPLA,
and MHRA claims.

        To succeed on her entitlement claim, Wages needed to demonstrate, inter alia,
that she was an FMLA-eligible employee and that she provided adequate notice of
her need for FMLA leave to her employer. Generally, an employee is eligible for
FMLA benefits only if she works 12 months for an FMLA-covered employer. At
summary judgment, StuartCo argued that it fired Wages one day before her 12-month
anniversary with the company. The district court disagreed. Relying on a case from
the Eleventh Circuit and an FMLA regulation, it held Wages satisfied the 12-month
requirement by using non-FMLA leave to “bridge the gap” or carry her to the
eligibility date, November 16.

       With respect to the second requirement of her entitlement claim—notice—the
district court found that “Wages plainly met this requirement” because she “gave the
doctor’s note to [StuartCo] on November 13, within one day of receiving [it].” And
the notice was “sufficient to make [StuartCo] aware” that Wages needed FMLA
leave. Because no genuine issue of material fact existed and because Wages would
succeed as a matter of law, the district court granted summary judgment in favor of
Wages on her entitlement claim.




                                         -4-
       To succeed on her FMLA retaliation claim, Wages had to demonstrate that she
exercised rights afforded by the FMLA, that she suffered an adverse employment
action, and that the adverse employment action had a causal connection to the
protected FMLA activity. Because termination is unequivocally an adverse
employment action and because the district court previously held Wages was FMLA
eligible, the court noted the only fighting issue was whether Wages’s termination was
causally connected to her requested FMLA leave. The record demonstrated,
according to the district court, that Wages was terminated because she requested a
reduced schedule that was protected under the FMLA. Therefore, the district court
granted summary judgment in favor of Wages on her retaliation claim.

       StuartCo filed a letter requesting permission to file a motion to reconsider. In
support, StuartCo submitted an affidavit from Stachowski and argued that the court
erred by making certain factual determinations. The court refused to consider
Stachowski’s affidavit because she was available to StuartCo before the court issued
its order. And “[t]he only reason the information was not in the record on summary
judgment [was] because [StuartCo] chose not to present it to the Court.” The district
court denied StuartCo’s request to file a motion to reconsider.

       The parties then filed cross motions to alter or amend the judgment. StuartCo
argued the district court erred by granting summary judgment on Wages’s FMLA
claims, and Wages asked the court to award damages for StuartCo’s FMLA
violations.

       StuartCo’s argument with respect to liability was twofold: first, Wages was not
eligible for FMLA leave; second, a jury should have decided whether Wages gave
adequate notice of her need for FMLA leave because it was a question of fact, not a
question of law.




                                         -5-
        Regarding StuartCo’s argument that Wages was not eligible for FMLA leave,
StuartCo again supported its argument with an affidavit from Stachowski. The
district court again refused to consider the affidavit because “[t]he affidavit is new
evidence, but it is not newly discovered evidence.” The district court upheld its
initial ruling. Regarding StuartCo’s argument that a jury should decide whether
Wages gave adequate notice, the district court held that there were no issues of
material fact and the notice was sufficient as a matter of law. The district court
expressly noted no reasonable jury could have concluded that the doctor’s note failed
to provide adequate notice to StuartCo.

       Next, the district court addressed Wages’s request for damages. She asked the
court for back pay, pre-judgment interest, a tax gross-up, liquidated damages, and
post-judgment interest. The district court awarded Wages $49,769.09 in back pay;
$30,876.10 in pre-judgment interest on the back pay; $80,645.19 in liquidated
damages; and post-judgment interest at a rate of 11% computed daily, compounded
annually from the date of judgment. The court refused to award Wages a tax gross-up
because the court lacked statutory authority to do so under the FMLA.

      Wages subsequently filed another motion to alter or amend the judgment.
Wages noted that the correct post-judgment interest rate should be 0.11%—not 11%.
The court agreed and reduced the interest rate to 0.11%.

      StuartCo then filed a motion to vacate the amended damages judgment. The
gravamen of StuartCo’s argument was that the district court issued its order, which
corrected the post-judgment interest rate, before StuartCo was able to submit a
response brief, thereby denying StuartCo due process. The district court denied
StuartCo’s motion for several reasons: (1) the order actually favored StuartCo; (2)
StuartCo planned to “forego post-judgment review of the damages award and would
instead contest all damages issues on appeal”; (3) the order was limited to the post-



                                         -6-
judgment interest rate; and (4) even if StuartCo had presented its arguments, the
district court would have rejected them.

      StuartCo appeals the district court’s grant of summary judgment in favor of
Wages on her FMLA claims. In addition, StuartCo appeals the district court’s award
of damages to Wages.

                                       II

       We review a grant of summary judgment de novo, construing the record in the
light most favorable to the nonmoving party. Rickard v. Swedish Match N. Am., Inc.,
773 F.3d 181, 184 (8th Cir. 2014). Even if not discussed by the district court, we may
affirm on any ground supported by the record. Interstate Bakeries Corp. v.
OneBeacon Ins. Co., 686 F.3d 539, 542 (8th Cir. 2012).

      A. FMLA Entitlement Claim

       To prevail on her FMLA entitlement claim, Wages had to show that she was
an eligible employee and that she gave adequate notice to her employer of her need
for FMLA leave. StuartCo argues that Wages was not an eligible employee because
she did not work for a full 12 months. It also disputes that Wages gave adequate
notice.

       An “eligible employee” is “an employee who has been employed—(i) for at
least 12 months by the employer with respect to whom leave is requested under
section 2612 of this title; and (ii) for at least 1,250 hours of service with such
employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A). The
parties do not dispute Wages worked 1,250 hours for StuartCo.




                                            -7-
      The issue is whether Wages had been employed by StuartCo for at least 12
months. Uncontroverted evidence demonstrates that Wages was employed by
StuartCo for 12 months. Wages began her employment on November 17, 2008. As
a result, she needed to work until November 16, 2009, to satisfy the 12-month
requirement. In a letter informing Wages of StuartCo’s decision to terminate her
employment, StuartCo stated “[Wages’s] employment with StuartCo has been
terminated. Our records will reflect today as [Wages’s] last day worked.” (emphasis
added). The letter was dated Monday, November 16, 2009. Wages’s timecard for
November 16 also shows that she worked on November 16. November 17 would
have been the first day of Wages’s second year with StuartCo. Because she satisfied
the 12-month requirement, Wages was an eligible employee as defined by the
FMLA.1

       Next, Wages needed to provide adequate notice to StuartCo. The notice must
be “sufficient to make the employer aware that the employee needs FMLA-qualifying
leave, and [the employee must inform the employer of] the anticipated timing and
duration of the leave.” 29 C.F.R. § 825.302(c). FMLA regulations require an
employee to provide notice 30 days before future leave if “practicable.” Id.
§ 825.302(a). An employee is required to inform her employer “as soon as
practicable” if there is a change in circumstances or a medical emergency. Id.
Section 825.302(b) defines the term “[a]s soon as practicable” to mean “as soon as
both possible and practical, taking into account all of the facts and circumstances in
the individual case.” When requesting FMLA leave:


      1
        We note that we need not decide whether non-FMLA leave can be used to
“bridge the gap” between an employee’s termination date (or the date her non-FMLA
leave commences) and her 12-month eligibility date, as the district court held.
Rather, we find Wages was employed by StuartCo for the requisite 12 months. “We
may affirm the judgment of the district court on any basis disclosed in the record,
whether or not the district court agreed with or even addressed that ground.”
Interstate Bakeries, 686 F.3d at 542 (quotation omitted).

                                         -8-
      [if] an employee seeks leave for the first time for a FMLA-qualifying
      reason, the employee need not expressly assert rights under the FMLA
      or even mention the FMLA. When an employee seeks leave due to a
      FMLA-qualifying reason, for which the employer has previously
      provided FMLA-protected leave, the employee must specifically
      reference the qualifying reason for leave or the need for FMLA leave.

Id. § 825.302(c).

       StaurtCo argues that Wages failed to inform StuartCo of her need for leave.
It asserts the doctor’s note was insufficient and Wages never said or did anything
beyond submitting the doctor’s note. We disagree. The doctor’s note referenced the
reason (her pregnancy) and the need for leave. See Phillips v. Mathews, 547 F.3d
905, 909 (8th Cir. 2008) (noting an employee does not need to invoke the FMLA by
name to put the employer on notice of her need for FMLA leave). The doctor’s note
also listed the restriction: no more than 20 hours of work per week. Further, our
review of the record demonstrates Wages acted as soon as possible and practical.
Wages submitted the doctor’s note to StuartCo on November 13, one day after
receiving the note.

       Because Wages was an eligible employee and because she provided adequate
notice to StuartCo, we affirm the district court’s grant of summary judgment in favor
of Wages on her FMLA entitlement claim.

      B. Retaliation Claim

       The parties agree that, to prevail on her retaliation claim, Wages had to show
“that she exercised rights afforded by the [FMLA], that she suffered an adverse
employment action, and that there was a causal connection between her exercise of
rights and the adverse employment action.” See Smith v. Allen Health Sys., Inc., 302
F.3d 827, 832 (8th Cir. 2002). Having already decided Wages is an eligible


                                         -9-
employee, we, like the district court, find that she exercised rights provided by the
FMLA. We also agree with the district court that her termination unequivocally
qualifies as an adverse employment action.

      The parties dispute whether there was a causal connection between Wages’s
termination of employment and her request for a reduced working schedule—what
we have determined was qualifying FMLA leave. StuartCo argues that the totality
of work restrictions that Wages’s doctor implemented resulted in StuartCo’s
termination of Wages’s employment, not her attempt to exercise FMLA rights.

        Wages provided StuartCo with the doctor’s note on Friday, November 13,
which restricted her work week to no more than 20 hours. The letter indicated the
leave was pregnancy related, and therefore protected by the FMLA. On the same day,
Beddow, Fulton, and Stachowski decided to terminate Wages’s employment. Fulton
stated in her deposition that although Wages was “getting by” with the initial
restrictions (no snow removal, mopping, or vacuuming), her reduction in hours
indicated Wages would not be able to complete “the essential functions of her job.”
As a result, StuartCo provided Wages with a termination letter that stated, “We are
unable to accommodate the work restrictions provided by your physician.” StuartCo
has pointed to no evidence to demonstrate Wages would have been fired based on her
initial restrictions alone. Rather, StuartCo’s decision to fire Wages was directly
connected to her request for a reduction in hours, which is protected under the FMLA.
It was at all times undisputed that Wages’s restrictions were pregnancy related and
not permanent. There has been no suggestion that she could not continue mopping,
vacuuming, or shoveling at a later date. The FMLA is designed specifically for
situations like this, where a low-wage employee, such as Wages, needs temporary
protection:

      Without job-secured family and medical leave and its promise of a
      steady paycheck upon return from leave, low-wage workers in the midst

                                        -10-
      of family or medical emergency risk debt, welfare, and even
      homelessness. While the need for family leave applies to workers across
      the economic spectrum, that need is greatest for the low wage earner.

H.R. Rep. No. 103-8(I), at *29 (1993). StuartCo’s actions here highlight the need for
the FMLA.

      Because no reasonable jury could find the required causal connection lacking,
we affirm the district court’s grant of summary judgment in favor of Wages on her
FMLA retaliation claim.

                                       III

      A district court’s decision to alter or amend the judgment is reviewed for an
abuse of discretion. Twin City Constr. Co. of Fargo v. Turtle Mountain Band of
Chippewa Indians, 911 F.2d 137, 139 (8th Cir. 1990).

      Wages argues that the district court did not err by awarding damages because
the court properly acted as a neutral fact-finder in weighing the evidence submitted
by both parties. StuartCo argues that the district court erred in granting Wages’s
motion to amend the judgment when it awarded Wages damages for back pay,
prejudgment interest, and liquidated damages without a trial on the merits. We agree
with StuartCo. StuartCo had a right for a jury to determine damages. See Frizzell v.
Sw. Motor Freight, 154 F.3d 641, 643 (6th Cir. 1998); see also Bryant v. Delbar
Prods., Inc., 18 F. Supp. 2d 799, 810 (M.D. Tenn. 1998) (holding that the FMLA
provides a right to a jury trial to determine back pay and liquidated damages); Helmly
v. Stone Container Corp., 957 F. Supp. 1274, 1276 (S.D. Ga. 1997) (finding the
FMLA provides a right to a jury trial on liability and damages).

     StuartCo repeatedly requested a jury to determine Wages’s damages in its
motions to the district court:

                                        -11-
       StuartCo respectfully asks this Court to deny in part and to grant in part
       plaintiff’s motion and to award a nominal amount as back pay with a
       corresponding amount for prejudgment interest and to deny plaintiff’s
       request for liquidated damages. In the alternative, defendant
       respectfully asks the Court to deny plaintiff’s motion in its entirety and
       to set the matter [] for a jury trial on damages.

In its motion in opposition to Wages’s motion to alter the judgment, StuartCo again
asked the district court “to deny in part and to grant in part plaintiff’s motion . . . . In
the alternative, [StuartCo] respectfully asks the Court to deny plaintiff’s motion in its
entirety and to set the matter [] for a jury trial on damages.” At appellate oral
argument, counsel for StuartCo emphasized that “this is a highly unusual FMLA
employment case in which the trial court not only entered summary judgment in favor
of the plaintiff on liability matters, but then proceeded to resolve disputed fact issues
regarding damages without a jury, without an evidentiary hearing, and even without
oral argument.” StuartCo also noted at oral argument that it requested “a jury trial on
all issues so triable, that includes damages.” There are factual disputes that should
have prevented the district court from determining damages. For example, a jury
should have determine whether Wages mitigated damages (and to what extent) and
whether StuartCo acted in bad faith. We hold StuartCo is entitled to have a jury
determine the factual disputes related to damages.

     The district court abused its discretion by not permitting a jury to determine
damages. We vacate the damages judgment.

                                          IV

       We affirm the district court’s grant of summary judgment in favor of Wages on
her FMLA entitlement claim and her FMLA retaliation claim. However, we reverse
the judgment as to damages and remand the case for a jury trial on damages.
                       ______________________________

                                           -12-
