                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1125n.06

                                             09-2087
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            Oct 31, 2012
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


MARY JO HYLDAHL,                                        )
                                                        )         ON APPEAL FROM THE
       Plaintiff-Appellee,                              )         UNITED STATES DISTRICT
                                                        )         COURT FOR THE EASTERN
               v.                                       )         DISTRICT OF MICHIGAN
                                                        )
MICHIGAN BELL TELEPHONE COMPANY,                        )         OPINION
                                                        )
      Defendant-Appellant.                              )
__________________________________________              )

Before: BOGGS and WHITE, Circuit Judges, and BERTELSMAN,* District Judge.

       HELENE N. WHITE, Circuit Judge. Michigan Bell appeals the district court’s denial of

its motions for directed verdict and new trial, as well as the court’s award of liquidated damages.

We AFFIRM.

                                                 I.

       Mary-Jo Hyldahl brought suit under the Family and Medical Leave Act (FMLA or the Act),

29 U.S.C. § 2601 et seq., alleging that Michigan Bell, her employer of 11 years, violated the Act by

denying her leave on December 14, 2006 (interference claim), and by terminating her employment

for using FMLA leave (retaliation claim). Michigan Bell removed the case and, following discovery,

moved for summary judgment on both claims. The district court dismissed the retaliation claim, and



       *
         The Honorable William O. Bertelsman, United States District Court Judge for the Eastern
District of Kentucky, sitting by designation.

                                                 1
the interference claim was tried to a jury. The jury found in Hyldahl’s favor and awarded front and

back pay. On Hyldahl’s post-judgment motion for liquidated damages, the district court awarded

her liquidated damages of $ 134,936.27.

         The district court’s thorough opinion sets forth the facts, which we adopt and do not repeat,

as neither party takes issue with them. Hyldahl v. AT&T, 642 F. Supp. 2d 707, 709-14 (E.D. Mich.

2009).

                                                  II.

         Michigan Bell contends that the district court erred in denying its motion to vacate the jury

verdict and enter judgment in its favor because Hyldahl did not establish that she was entitled to

leave on December 14, 2006.1 Specifically, Michigan Bell asserts that no reasonable jury could find

that the January 6, 2007 supplemental certification of Hyldahl’s treaters, Dr. Raval, a psychiatrist,

and Olsen, a licensed master social worker, is a reliable medical assessment. Michigan Bell argues

that her treaters neither saw nor spoke to her on that day and thus lacked the requisite knowledge of

her condition to certify her leave, leaving only her own testimony, which cannot, standing alone,

establish that she was incapable of working on that date.




         1
         The FMLA prohibits an employer from interfering with, restraining or denying the exercise
of or attempt to exercise any right provided by the Act. 29 U.S.C. § 2615(a)(1).

         To prevail on an FMLA interference claim, a plaintiff must establish that (1) she was
         an eligible employee as defined under the FMLA; (2) her employer was a covered
         employer as defined under the FMLA; (3) she was entitled to leave under the FMLA;
         (4) she gave the employer notice of her intention to take FMLA leave; and (5) her
         employer denied FMLA benefits to which she was entitled.

Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 577-78 (6th Cir. 2007) (emphasis added). Only the
third element is in dispute – whether Hyldahl was entitled to leave on December 14, 2006.

                                                  2
        This court reviews de novo a denial of a motion for directed verdict. American & Foreign

Ins. Co. v. Bolt, 106 F.3d 155, 157 (6th Cir. 1997).

                 On a motion for a judgment notwithstanding the verdict or for a directed
        verdict, the district court must determine whether there was sufficient evidence
        presented to raise a material issue of fact for the jury. As applied in this context,
        “sufficient evidence” will be found unless, when viewed in the light of those
        inferences most favorable to the nonmovant, there is either a complete absence of
        proof on the issues or no controverted issues of fact upon which reasonable persons
        could differ. The determination is one of law to be made in the first instance by the
        district court. The standard remains the same when the trial court’s decision is
        reviewed on appeal.

Monette v. AM-7-7 Baking Co., Ltd., 929 F.2d 276, 280 (6th Cir. 1991), see also Fed. R. Civ. P.

50(a), (b).

                                                    A.

        Section 2613 of the FMLA, entitled “Certification,” provided at pertinent times:

        An employer may require that a request for leave . . . be supported by a certification
        issued by the health care provider of the eligible employee . . . .

               (b) Sufficient certification

               Certification . . . shall be sufficient if it states --

               (1) the date on which the serious health condition commenced;

               (2) the probable duration of the condition;

               (3) the appropriate medical facts within the knowledge of the health
               care provider regarding the condition; . . . .

               (6) in the case of certification for intermittent leave, or leave on a
               reduced schedule, under section 2612(a)(1)(D) . . ., a statement of the
               medical necessity for the intermittent leave or leave on a reduced
               leave schedule, and the expected duration of the intermittent leave or
               reduced leave schedule;




                                                     3
29 U.S.C. § 2613(b). A medical certification that contains this information and is signed by the

health care provider is presumptively valid. Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 578 (6th

Cir. 2007). The employer may overcome this presumption by showing that the certification is

invalid or inauthentic. Id.

                                                 B.

       Michigan Bell provided no authority below, nor on appeal, supporting that an otherwise valid

treater’s certification that the employee could not have worked on a given day is rendered invalid

or unreliable if not supported by a contemporaneous medical examination. The cases on which it

relies are easily distinguished from the instant case. In Novak, 503 F.3d 572, the district court

granted the employer summary judgment because Novak’s certification forms did not establish that

her back injury was a serious health condition. This court affirmed, concluding that the defendant

employer “satisfied its burden of showing that the certification was unreliable, and [] acted

reasonably in refusing to grant FMLA leave on that basis.” We noted that Novak’s physician of

record acknowledged in a certification form that a different doctor had treated Novak’s back injury,

that she (her physician of record) had not seen Novak in the five months prior, and that she (her

physician of record) had no personal knowledge of Novak’s current condition and relied solely on

what Novak relayed to her regarding the other doctor’s assessment of Novak’s condition. Id. at 578-

79.

       In contrast, Hyldahl had been under treatment by Dr. Raval and social worker Olsen for seven

years, they had certified her for intermittent leave for an ongoing chronic condition – depression and

PTSD – a certification Michigan Bell had approved, and their January 6, 2007 supplemental




                                                  4
certification attested that Hyldahl was unable to work on December 14, 2006 because of her serious

health condition.

       Michigan Bell also relies on Knox v. Cessna Aircraft Co., 314 F. App’x 230 (11th Cir. 2008),

another back-injury case. The Eleventh Circuit upheld the grant of summary judgment to Cessna,

concluding that Knox failed to establish that he suffered from a serious health condition because he

did not show that his back injury required repeated or ongoing treatment, and that his treating

physician’s testimony and medical certificate were properly excluded as unreliable. Knox’s treating

physician had testified that he could not state that Knox had a serious health condition based on his

personal observation and medical findings, but rather, relied on Knox’s self-diagnosis, conveyed to

him (the physician) by his nursing assistant. Id. at *3-4.

       In the instant case, unlike in Knox, Dr. Raval and Olsen did not rely on Hyldahl’s “self-

diagnosis” alone in their supplemental certification, but rather, relied on their familiarity with

Hyldahl’s mental condition and their course of care (including on-going therapy and prescribed

medication), as well as Hyldahl’s later reports about how she felt on that day.

       Another case Michigan Bell cites, Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D.

Ohio 1997), is also factually distinguishable and supports the district court’s determination in the

instant case. The district court granted the employer summary judgment, concluding that Olsen’s

chiropractor’s note did not demonstrate that Olsen was required to miss more than three days of work

because of his injury, and that Olsen failed to show that the chiropractor acted as a “health care

provider” within the meaning of the FMLA. Olsen presented no evidence that the chiropractor had

performed a manual manipulation of his spine, and the medical records nowhere indicated that Olsen

had a condition revealed by X-ray either before or after the chiropractor excused him from work.


                                                 5
The Olsen court observed that the treater’s determination that the employee cannot work need not

be made contemporaneously to the requested time off:

        [] this medical determination need not be made at any particular stage of the illness
       or at any particular point post-injury. As long as the medical provider’s assessment
       of medical history and of the patient’s current condition supports the professional
       assessment given, and that assessment is that an absence in excess of three days is
       necessary to proper treatment, a plaintiff employee should withstand summary
       judgment as to this particular prong of his . . . required showing.

Id. at 1166 n.11 (emphasis added). Olsen is thus inapposite to our case.

       Michigan Bell also relies on Murphy v. FedEx Nat’l LTL, Inc., 618 F.3d 893 (8th Cir. 2010),

in which the plaintiff employee took an approved FMLA leave to care for her ill husband. Soon

after, the plaintiff’s husband died unexpectedly, and she requested an additional thirty days “to take

care of things.” Her supervisor at FedEx responded, “okay, cool, not a problem, I’ll let HR know.”

Relying on that representation, the plaintiff did not seek additional approval from FedEx and did not

seek medical certification. The plaintiff’s FMLA claim was submitted to the jury on an estoppel

theory. At the conclusion of the plaintiff’s proofs, FedEx moved for judgment as a matter of law,

the district court denied the motion and also denied “Murphy’s offer of proof with respect to two

doctors whose testimony the district court had previously excluded in an order granting FedEx’s

motion in limine. The two doctors sought to testify that they would have given Murphy leave

certification if she had requested it at the relevant time.” 618 F.3d at 898. After the jury returned

a verdict in the plaintiff’s favor, the district court denied FedEx’s renewed motion for judgment as

a matter of law or new trial. FedEx appealed, and the plaintiff filed a conditional cross-appeal

challenging the exclusion of her proffered experts. Id. The Eighth Circuit upheld the district court’s




                                                  6
exclusion of the doctors’ testimony (only one doctor is pertinent for purposes of the instant case, Dr.

Sjak-Shie):

        The record shows that Murphy had seen Dr. Sjak-Shie regarding a matter unrelated
        to her husband’s death thirty-six days after her request for leave. At that
        appointment, Dr. Sjak-Shie prescribed Murphy a sleep aid because she believed
        Murphy was “coping poorly” with her husband’s death. At no point during this
        examination did Dr. Sjak-Shie examine Murphy for depression or other stress-related
        conditions, and Dr. Sjak Shie testified that there was no independent medical
        evidence of Murphy’s condition and she relied solely on Murphy’s self-report.
        Further, Dr. Sjak-Shie agreed at her deposition that she did not evaluate Murphy’s
        health condition as it stood at the time of her leave request.

                 The district court did not abuse its discretion by excluding Dr. Sjak-Shie’s
        testimony. The relevant inquiry here is the basis of Dr. Sjak-Shie’s testimony that,
        at the time of Murphy’s leave request, Dr. Sjak-Shie would have written Murphy a
        note certifying that Murphy had a serious health condition rendering her unable to
        work. . . . A necessary prerequisite to this testimony is that Dr. Sjak-Shie in fact had
        some basis to believe that Murphy had a serious health condition at the relevant time.
        The record contains no support for that belief; the doctor herself testified that she had
        no basis for diagnosing Murphy at the relevant time. In light of this testimony, we
        cannot find that the district court abused its discretion.

618 F.3d at 906 (emphasis added). In Murphy, the plaintiff’s own doctor testified that she had no

basis for diagnosing Murphy at the pertinent time – there was no such testimony here. And, unlike

the instant case, there is no indication in Murphy that the plaintiff employee had been under the long-

term care of Dr. Sjak-Shie, or that Dr. Sjak Shie had at any point treated the plaintiff for depression.

        In the instant case, although Dr. Raval and Social Worker Olsen did not see or speak to

Hyldahl on December 14, 2006, they certified her leave for that date based on their knowledge of

her medical condition, their course of treatment, and Olsen’s subsequent discussion with Hyldahl

about her mental state and activities on December 14, 2006. Trial testimony established that Hyldahl

had treated with Dr. Raval and Olsen for more than seven years. Olsen testified that she spoke to

Hyldahl about her need for FMLA leave when Hyldahl requested certification for additional days,


                                                   7
and that she and Hyldahl reviewed Hyldahl’s activities on December 14, 2006. Dr. Raval testified

that he discussed Hyldahl with Olsen after December 14, 2006, and that he was thus aware of

Hyldahl’s medical status. We agree with the district court that under the circumstances present in

this case, the fact that Hyldahl’s treaters did not see or speak to her on December 14, 2006 did not

render their supplemental certification invalid or unreliable:

       It is undisputed that Plaintiff was generally certified to utilize FMLA leave prior to
       December 14. In addition, at Defendant’s request, Dr. Raval and Olsen tendered
       supplemental certification, which relied on the course of care and Plaintiff’s later
       representations about her condition on that day. Dr. Raval and Olsen testified that
       Plaintiff suffered from chronic, episodic mental health issues. Throughout the course
       of Plaintiff’s treatment, neither suspected Plaintiff of misrepresenting her symptoms
       or malingering. In addition, each believed that evidence of on-going therapy sessions
       and use of prescription medication supported the conclusion that Plaintiff continued
       to suffer from her diagnosed condition.

               Defendant emphasized that neither treater verified Plaintiff’s condition on
       December 14, 2006 or even spoke with her on that date. Put another way, Defendant
       challenges the professional methodology employed by Dr. Raval and Olsen when
       certifying Plaintiff. There is no indication that Defendant disbelieved or challenged
       Dr. Raval and Olsen’s diagnosis until surveillance captured [Plaintiff’s] conduct on
       December 14, 2006. While in Defendant’s view the treaters should have verified
       Plaintiff’s capacity with respect to each individual request, Defendant has not
       advanced legal authority requiring such verification. Nor did Defendant offer a
       professional opinion challenging Dr. Raval’s or Olsen’s methodology. In contrast,
       the record indicates that Defendant accepted the certification process that
       prospectively approved Plaintiff’s intermittent leave. On no other occasion was
       Plaintiff required to have concurrent verification of her incapacity. At trial,
       Defendant did challenge Dr. Raval and Olsen’s certification during their cross
       examination of each witness. The jury rejected Defendant’s interpretation of the
       record.

Hyldahl, 642 F. Supp. 2d at 715-16.2


       2
         In accord with the district court’s analysis is Brown v. Eastern Maine Medical Center, 514
F. Supp. 2d 104 (D. Me. 2007), in which the employer challenged the employee’s doctor’s FMLA
certification as lacking foundation because the doctor had not examined Brown until after she was
fired. The district court rejected the argument:


                                                 8
                                                C.

       In sum, Michigan Bell provided no authority holding that lack of a contemporaneous medical

examination renders invalid or unreliable a treater’s certification that the employee could not have

worked on a given day because of a serious health condition, where the existence of the serious

health condition is not disputed. Because Dr. Raval’s and Olsen’s supplemental certification met

all the requirements for an FMLA certification, § 2613(b), it was presumptively valid, Novak, 503

F.3d at 578. Michigan Bell did not rebut that presumption, thus the question whether the

supplemental certification was a reliable medical assessment supporting Hyldahl’s request for FMLA

leave was properly left to the jury, see, e.g., E. Maine Med. Ctr., 514 F.Supp.2d at 109, and the

district court properly denied Michigan Bell’s motion for directed verdict.

                                                III.

       Michigan Bell also argues (largely duplicatively) that Hyldahl failed to present sufficient

evidence that 1) she was too incapacitated to perform her job on December 14, 2006, and 2) that she

used FMLA leave for its intended purpose on that date. We agree with the district court that there

were disputed issues of fact on these questions on which reasonable persons could differ, thus these

matters were properly left to the jury:



       To the extent that EMMC also challenges Dr. Krause’s letter for lack of foundation
       because Dr. Krause did not examine Brown until after EMMC fired her, I conclude
       that Dr. Krause’s retroactive diagnosis is subject not to Rule 602 but Rule 702.
       There are currently no Daubert-type challenges to his opinion. The progression of
       medical conditions and symptoms over time is an expected component of a
       physician’s knowledge; it is not uncommon for a physician to draw conclusions
       about a patient’s past condition based on current observations. The underlying
       credibility and weight to be given these inferences is a matter for the fact-finder.

Id. at 109 (emphasis added).

                                                 9
       [] Defendant disputes that Plaintiff offered “specific evidence showing that she was
       unable to work due to that condition” on December 14, 2006, dkt. # 61 at 9 (citing
       Austin v. Haaker, 76 F. Supp. 2d 1213, 1221 (D. Kan. 1999)), and believes that the
       record supports a single conclusion – that Plaintiff’s activities demonstrated a
       capability to perform her duties on that date. With respect to Plaintiff’s
       symptomology on December 14, 2006, Plaintiff testified that she experienced
       anxiety, a feeling of being “overwhelmed,” physical pain, and she was still “reeling”
       from a work-related incident. Defendant argues that Plaintiff did not explain how
       these emotions impaired her capacity to perform her duties. Plaintiff’s testimony in
       conjunction with Dr. Raval’s and Olsen’s testimony concerning Plaintiff’s functional
       abilities provides a plausible basis for the finder of fact to conclude that her anxiety
       and associated emotions impaired her ability to perform her employment.

               Finally, Defendant argues that Plaintiff’s conduct was inconsistent [with] her
       contention she could not work on December 14, 2006. While a finder of fact could
       reasonably adopt Defendant’s view, the record also supported the jury’s conclusion.
       For instance, Olsen acknowledged that an appropriate response to her symptoms may
       be to remain at home, but Olsen also testified that, at times, it was appropriate that
       Plaintiff seek out a “supportive environment.” Dr. Raval echoed this view. Olsen
       also believed that Plaintiff’s employment environment included stressors that could
       exacerbate her symptoms. Accordingly, when her symptoms manifested, the medical
       providers authorized Plaintiff to be absent from work and to take the course of action
       that Plaintiff determined to be appropriate – either remaining home or seeking
       support.

               Plaintiff testified about the advice she had received from Dr. Raval and Olsen.
       She emphasized that she relied on their guidance in determining the symptoms that
       qualified her to be eligible for FMLA leave. Moreover, the record demonstrates,
       when confronted by Defendant’s investigators, that Plaintiff did not misrepresent or
       conceal her actions of December 14, 2006. While the Court, if it were the finder of
       fact, would have difficulty squaring Plaintiff’s activities and apparent cognitive and
       emotional capability with an inability to perform her employment responsibilities on
       December 14, 2006, Dr. Raval and Olsen’s testimony supports the jury’s conclusion
       that Plaintiff self reported consistently with an incapacity. The Court will deny the
       Rule 50(a) motion.

Hyldahl, 642 F. Supp. 2d at 716-17.




                                                 10
        The cases Michigan Bell cites3 are inapposite, as they hold that a plaintiff’s own testimony,

standing alone, is insufficient to prove incapacity under the FMLA, and/or that a plaintiff’s own

assertions regarding the severity of her medical condition are insufficient to establish a serious health

condition. In the instant case, the jury heard testimony not only from Hyldahl, but Dr. Raval and

Olsen, regarding Hyldahl’s status and functional abilities on December 14, 2006. And, Michigan

Bell did not dispute that Hyldahl suffered from a serious health condition on that date – depression

and PTSD.4

                                                  IV.

        Michigan Bell contends that, as an alternative to directing a verdict in its favor, the district

court erred in refusing to grant its motion for new trial for erroneously instructing the jury and

allowing Hyldahl’s counsel to make prejudicial misstatements of the law during closing argument.

We disagree.

                                                   A.

        The district court instructed the jury in accordance with section 2613 of the FMLA, quoted

supra, and Novak, that an employer who doubts a certification’s validity may, but is not required

to, obtain a second medical opinion, Novak, 503 F.3d at 580 (“we continue to view the language of


        3
        Deleva v. Real Estate Mortg. Corp., 2007 U.S. Dist. LEXIS 45136, at *37 (N.D. Ohio June
21, 2007); McClure v. Comair, Inc., 2005 WL 1705739, at *6 (E.D. Ky. July 20, 2005); Levine v.
Children’s Museum of Indianapolis, Inc., 2002 WL 1800254, at *6 (S.D. Ind. July 1, 2002); Joslin
v. Rockwell Int’l Corp., 8 F. Supp. 2d 1158, 1160-61 (N.D. Iowa 1998); Brannon v. Oshkosh
B’Gosh, Inc., 897 F. Supp. 1028, 1037 (M.D. Tenn. 1995).
        4
         Michigan Bell claims support for its position in the district court’s remarks suggesting that,
had it been the factfinder, it would have concluded contrary to the jury. These arguments
mischaracterize what the district court was actually explaining – that reasonable minds could differ
on whether Hyldahl was entitled to leave, and thus that Michigan Bell was not entitled to a directed
verdict.

                                                   11
29 U.S.C. § 2613(c)(1) as merely permissive; therefore an employer’s failure to require a second

certification does not preclude the employer from contesting the employee’s certification.”).

Because the jury instructions neither contravened the FMLA nor Novak, the district court did not

abuse its discretion by denying a new trial on the basis of instructional error. See Barnes v. Owens-

Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000).



                                                 B.

       Michigan Bell maintains that Hyldahl’s closing argument directly contravened Novak by

stating or suggesting that obtaining a second opinion is the only way an employer can challenge the

validity of a medical certification.

       Hyldahl’s closing argument urged the jury to consider that Michigan Bell could have but did

not challenge the supplemental medical certification while Hyldahl was still an employee, and that

it could have sought a second medical opinion. Hyldahl did not argue in closing that Michigan Bell

was required to obtain a second opinion or that it waived its right to challenge the medical

certification by failing to obtain a second opinion.

       As the district court observed, Michigan Bell’s trial strategy was to undermine the

supplemental certification Dr. Raval and Olsen supplied certifying that Hyldahl was incapable of

working on December 14, 2006. Under the FMLA, when an employer questions the adequacy of

a medical certification, the employer may seek a second medical opinion regarding the employee’s

condition. See 29 C.F.R. § 825.3075 (provision in effect to 1/16/2009, entitled “What may an


       5
           29 C.F.R. § 825.307 provided until January 16, 2009:

       (a) [] a health care provider representing the employer may contact the employee’s

                                                 12
employer do if it questions the adequacy of a medical certification?”) And “whenever the employer

finds a certification incomplete,” it must “provide the employee a reasonable opportunity to cure any

such deficiency.” 29 C.F.R. § 825.305(d) (provision in effect until 1/16/09); Novak, 503 F.3d at 579

(“We have indeed recognized that an employer who finds an employee’s certification to be

“incomplete” has a duty to inform the employee of the deficiency and provide the employee a

‘reasonable opportunity’ to cure it. Moreover, we have previously recognized that other courts will

impose this duty on employers when the FMLA certification is merely ‘inadequate,’ rather than

‘incomplete.’”) (internal citations omitted).

       The district court properly concluded that because Michigan Bell directly attacked Hyldahl’s

treaters’ belief that they could formulate a professional opinion in the manner that they did regarding


       health care provider, with the employee’s permission, for purposes of clarification
       and authenticity of the medical certification.
       ....
               (2) An employer who has reason to doubt the validity of a medical
       certification may require the employee to obtain a second opinion at the employer’s
       expense. Pending receipt of the second (or third) medical opinion, the employee is
       provisionally entitled to the benefits of the Act . . . If the certifications do not
       ultimately establish the employee’s entitlement to FMLA leave, the leave shall not
       be designated as FMLA leave and may be treated as paid or unpaid leave under the
       employer’s established leave policies. The employer is permitted to designate the
       health care provider to furnish the second opinion, but the selected health care
       provider may not be employed on a regular basis by the employer . . . .
       ....
               (c) If the opinions of the employee’s and the employer’s designated health
       care providers differ, the employer may require the employee to obtain certification
       from a third health care provider, again at the employer’s expense. This third opinion
       shall be final and binding. The third health care provider must be designated or
       approved jointly by the employer and the employee. The employer and the employee
       must each act in good faith to reach agreement on whom to select for the third
       opinion provider . . . . If the employer does not attempt in good faith to reach
       agreement, the employer will be bound by the first certification. If the employee does
       not attempt in good faith to reach agreement, the employee will be bound by the
       second certification . . . .

                                                  13
Hyldahl’s request for FMLA leave for December 14, 2006, it was not misleading for Hyldahl’s

closing argument to discuss the availability of a second opinion.

       Both Hyldahl’s closing argument and the district court’s jury instructions were in accord with

the language of the FMLA and did not contravene Novak. The district court thus did not err in

denying Michigan Bell’s motion for a new trial.



                                                V.

       Michigan Bell’s final argument is that we must vacate the liquidated-damages award and

enter judgment in its favor on that claim because it showed that Mary Glass, who denied Hyldahl’s

request for leave for December 14, 2006, had both a subjective good-faith belief and an objectively

reasonable belief that she did not interfere with Hyldahl’s FMLA rights by denying Hyldahl’s request

for leave.

       This court reviews for abuse of discretion an award of liquidated damages under the FMLA.

Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 243 (6th Cir. 2004).

       Section 2617(a)(1)(A)(iii) of the FMLA provides that an employer shall be liable for
       an amount of liquidated damages, in addition to compensatory damages equal to the
       amount of wages, salary, employment benefits, or other compensation denied or lost
       to an employee, plus interest, by reason of an employer’s violation of 29 U.S.C. §
       2615. Chandler [v. Specialty Tires of Am.], 283 F.3d [818,] 827 [(6th Cir. 2002)].
       Although liquidated damages are the norm in cases where an employer violates §
       2615, the district court may reduce such an award to comprise only compensatory
       damages if the employer “proves to the satisfaction of the court that the act or
       omission which violated section 2615 . . . was in good faith and that the employer
       had reasonable grounds for believing that the act or omission was not a violation of
       section 2615.” 29 U.S.C. § 2617(a)(1)(A)(iii). “The employer must therefore show
       both good faith and reasonable grounds for the act or omission.” Chandler, 283 F.3d
       at 827 (emphasis in original).




                                                14
Id. at 251 (emphasis added). Thus, to avoid liquidated damages, Michigan Bell had to prove to the

district court’s satisfaction that Glass’s decision to disallow FMLA leave for December 14, 2006 was

made in good faith and that Glass had reasonable grounds for believing that the decision did not

violate the FMLA. Id.

                                                  A.

       The district court awarded liquidated damages following a post-trial evidentiary hearing on

that issue, concluding that Glass had acted in good faith but did not have reasonable grounds for

believing that the FMLA authorized her to give prevailing weight to the opinion of Dr. Judith

Lichtenstein, Michigan Bell’s medical evaluator who had neither seen nor examined Hyldahl, and

reject the facially valid certification Dr. Raval and Olsen provided.

       Michigan Bell first argues that the district court could not have fairly concluded that Glass

did not have reasonable grounds for believing that the FMLA authorized her actions because the

district court itself stated that had it been the trier of fact, it would have had “difficulty squaring

Plaintiff’s activities and apparent cognitive and emotional capability” on December 14, 2006 with

her alleged inability to work. The district court did, indeed, make this observation in the course of

denying Michigan Bell’s Rule 50(a) motion. But in ruling on the liquidated damage issue the district

court made many other observations as well, including:

       Although a lay person can easily determine if an employee who is out of work
       because she cannot walk is improperly walking while on leave, it is more difficult for
       a lay person to determine if an employee is out of work because of anxiousness, and
       unable to concentrate to the point that she is unable to perform the essential functions
       of her work.




                                                  15
Taken in context, we cannot say that the district court’s earlier observation precluded it from finding

that in light of all the circumstances, Glass did not have reasonable grounds for believing that she

could rely on Lichtenstein’s opinion.

       Michigan Bell also argues that the liquidated damages award must be set aside because the

district court erroneously believed that Michigan Bell was required to seek a second opinion, in

direct contradiction to Novak, supra. It argues that the case the district court cited, Miller v. AT&T,

60 F. Supp. 2d 574, 580 (S.D. Va. 1999), affirmed in pertinent part on other grounds, 250 F.3d 820,

836 n.13 (4th Cir. 2001),was disapproved of by the Fourth Circuit in Rhoads v. FDIC, 257 F.3d 373,

385-86 (4th Cir. 2001), to the extent that it held that an employer who contests the validity of a

medical certification must use the second-opinion process. Rhoads, 257 F.3d at 385 (agreeing with

the Eighth Circuit’s determination in Stekloff v. St. John’s Mercy Health Sys., 218 F.3d 858, 860 (8th

Cir. 2000), that section 2613(c)(1) is merely permissive and thus that an employer does not waive

future opportunity to contest the validity of a medical certification by not seeking a second opinion.)

       Although the district court’s opinion can be read as Michigan Bell portrays it, there is no

question that the district court was aware of Novak and understood that the second-opinion process

is not required. In context, it is clear that the district court’s determination that Glass was obliged

to seek a second, or third, opinion was based solely on the facts of the case. Michigan Bell cites no

authority that precludes a district court from considering or weighing as a factor an employer’s

choice not to utilize the second-opinion process when determining whether to award liquidated

damages. As Rhoads observed, “This construction of the Act [that given section 2613(c)(1)’s

permissive language, the FMLA does not require an employer to obtain a second opinion or else




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waive any future opportunity to contest the validity of a certification] does not mean that there are

not potential pitfalls for an employer who chooses not to pursue a second opinion.” 257 F.3d at 386.

       Liquidated damages are presumptively awarded against an employer who violates the FMLA,

and it is the employer’s burden to demonstrate that its decision to deny leave was both made in good

faith and based on reasonable grounds. 29 U.S.C. § 2617(a)(1)(A)(iii). However, even if the

employer demonstrates both requirements, it is still within the district court’s discretion whether to

award liquidated damages. Id. In the instant case, the district court’s opinion, considered as a whole,

amply supports its conclusion that Glass did not have reasonable grounds for believing that “the

FMLA provided her with authority to give prevailing weight to a non-treating health care provider,

who had never examined the employee, and reject the facially valid certification of a treating

provider.” The court’s judgment was not an abuse of discretion.

       We AFFIRM the district court’s denial of Michigan Bell’s motions for directed verdict and

new trial, and uphold the award of liquidated damages.




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