                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

MARY KATE BREEDEN,                 :
                                   :
           Plaintiff,              :
                                   :
     v.                            : Civil Action No. 08-0625 (JR)
                                   :
NOVARTIS PHARMACEUTICALS           :
CORPORATION,                       :
                                   :
           Defendant.              :

                              MEMORANDUM

           A jury found in favor of plaintiff Mary Kate Breeden on

her claim that her former employer, Novartis Pharmaceuticals

Corporation, had illegally retaliated against her for taking

Family and Medical Leave Act (“FMLA”) leave.    Novartis now moves

under Federal Rule of Civil Procedure 50(b) for judgment as a

matter of law notwithstanding the verdict.1    The motion will be

granted.

           The basic facts of this case are described in detail in

my memorandum opinion granting in part and denying in part

Novartis’ summary judgment motion.    See Breeden v. Novartis

Pharm. Corp., 2010 U.S. Dist. LEXIS 13232, at *1-4 (D.D.C.

Feb. 16, 2010).   In short: Breeden was a salesperson in Novartis’

transplant drugs unit.    In early 2005 she took FMLA leave because

she was pregnant.    Around the same time (and after Novartis knew

about Breeden’s pregnancy and her plan to take leave), Novartis



     1
       Novartis moves in the alternative for a new trial pursuant
to Rule 59(a).
realigned its transplant sales force and assigned Breeden a

smaller sales territory than she had had previously.    Breeden

complained about the change.    One of her supervisors promised her

that she would be “made whole” soon after her return from leave.

No change was made to Breeden’s sales territory, but over the

next few years her merit-based income was greater than it had

been before the realignment, and her “sales rank” among her peers

improved.    In 2008, a new management team carried out a new

general realignment.    Breeden’s territory was merged with that of

another salesperson.    The merger rendered one of the two

salespeople superfluous.    Breeden, whose territory was the

smaller of the two, was terminated.

            This case differs from the typical discrimination case,

in which an employee loses compensation or is fired and the

salary reduction or the termination itself is the alleged adverse

action.   Here, the claimed unlawful acts were the 2005 sales

territory realignment and Novartis’ failure to restore Breeden’s

customers, but the termination –- the event for which a remedy is

demanded –- did not occur until three years later, in 2008.

            Under the FMLA, “[t]he employer is liable only for

compensation and benefits lost ‘by reason of the violation,’ for

other monetary losses sustained ‘as a direct result of the

violation,’ and for ‘appropriate’ equitable relief . . . .”

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)


                                - 2 -
(quoting 29 U.S.C. § 2617(a)(1)(A)-(B)) (internal citations

omitted).   The central question is therefore whether Breeden was

terminated, and thus lost compensation, “by reason of” the 2005

realignment.   29 U.S.C. § 2617(a)(1)(A)(i)(I).   The three-year

gap between alleged unlawful act and claimed injury seriously

complicates that question.

            In my summary judgment memorandum, I expressed concern

about whether Breeden’s evidence would be legally sufficient to

meet the “by reason of” standard, but because the issue was not a

focus of the parties’ briefs, I withheld judgment until she

presented her case-in-chief.    See Breeden, 2010 U.S. Dist. LEXIS

13232, at *12-13.   At trial, Novartis moved under Rule 50(a) for

judgment as a matter of law on causation, but pursuant to Rule

50(b), I did not decide the issue, submitting the action to the

jury “subject to the court’s later deciding the legal issues

raised by the motion.”2

                          Standard of Review

            Courts “do not . . . lightly disturb a jury verdict.”

McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000).    Under the

Federal Rules of Civil Procedure, a court may direct entry of

judgment as a matter of law contrary to a jury verdict only if “a



     2
       Novartis’ post-trial motion also objects to my decision to
give a “mixed motive” instruction and to the jury’s (apparent)
determination that Breeden did not fail to mitigate her damages,
but I need not reach either issue.

                                - 3 -
reasonable jury would not have a legally sufficient evidentiary

basis to find for the party on th[e] issue [in question].”    Fed.

R. Civ. P. 50(a)(1).   “[I]n entertaining a motion for judgment as

a matter of law, the court should review all of the evidence in

the record.   In doing so, however, the court must draw all

reasonable inferences in favor of the nonmoving party, and it may

not make credibility determinations or weigh the evidence.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000).   In reviewing the non-moving party’s case, the question

is not whether there is some evidence, but whether there is

legally sufficient evidence.    Siegel v. Mazda Motor Corp., 878

F.2d 435, 437 (D.C. Cir. 1989).

                               Analysis

           The phrase “by reason of” imposes a causation

requirement upon recovery for lost compensation and benefits

under the FMLA.   The law knows multiple definitions of causation,

however, and the exact meaning of “by reason of” in the FMLA has

not been developed.

           The two most familiar standards of causation, borrowed

from tort law, are “factual” (or “but-for”) cause, and “legal”

(or “proximate”) cause.   Breeden did present evidence that the

2005 realignment was a but-for cause of her termination: she was

terminated because her territory was the smaller of the two that

Novartis merged; and, if she had not been given a smaller


                                - 4 -
territory in 2005, and if her supervisors had not failed to live

up to the promise to improve her territory, she would not have

been such a clear candidate for termination.

          But-for causation without more, however, will not

satisfy the FMLA’s “by reason of” standard of proof.   Although

the question appears to be one of first impression in this

circuit, a number of reasons strongly suggest that the FMLA’s “by

reason of” standard incorporates a proximate cause requirement.

First, the words “by reason of” indicate that the adverse action

must be the principal cause -- the reason -- for the loss of

compensation.   Second, “by reason of” has been interpreted to

incorporate a proximate cause requirement in several other

federal statutes.   See Holmes v. Sec. Investor Prot. Corp., 503

U.S. 258, 265-68 (1992) (RICO civil suits); Associated Gen.

Contractors v. Cal. State Council of Carpenters, 459 U.S. 519,

531-36 (1983) (Clayton Act § 4); Loeb v. Eastman Kodak Co., 183

F. 704, 709-10 (3rd Cir. 1910) (Sherman Act § 7); Rothstein v.

UBS AG, 647 F. Supp. 2d 292, 295 (S.D.N.Y. 2009) (Anti-Terrorism

Act); but see Boim v. Holy Land Found. for Relief & Development,

549 F.3d 689, 695-98 (7th Cir. 2008) (en banc) (adopting

“relaxed” causation standard, based on policy considerations, for

Anti-Terrorism Act).   Congress, which passed the FMLA in 1993,

see Pub. L. No. 103-3, 107 Stat. 6, is presumed to legislate with

knowledge of pre-1993 case law and, by using the same words


                               - 5 -
again, to desire that the same interpretation be given.    See,

e.g., Holmes, 503 U.S. at 268.    Finally, interpreting “by reason

of” to incorporate a proximate cause requirement comports with

the FMLA’s stated purpose of balancing employees’ interests in

family and health leave against the legitimate interests of

employers.   See 29 U.S.C. § 2601(b)(1)-(3).

           Proximate cause is subject to numerous definitions.

Two approaches are most common: one asks from an ex ante

perspective whether the harm was reasonably foreseeable by the

wrongdoer at the time of the wrongful act; the other asks from an

ex post perspective whether the harm was a direct result of the

wrongful act.   See W. Page Keeton et al., Prosser and Keeton on

the Law of Torts (5th ed. 1984) § 42, p.273; see also Fowler v.

Harper et al., Harper, James and Gray on Torts (3d ed. 2007)

§§ 20.5-20.6 (describing the foreseeability test as the most

common view).   Regardless of which approach is taken, the record

of this case does not contain legally sufficient evidentiary

basis for a reasonable jury to find that Novartis’ 2005

realignment was the proximate cause of Breeden’s termination in

2008.   The best Breeden can do is argue without evidence (except,

perhaps, for Breeden’s own opinion) that the 2005 realignment

rendered her termination “inevitable.”   It is true that she

adduced evidence that her post-realignment territory had fewer

customers, with fewer transplant operations, than her pre-


                                 - 6 -
realignment territory, and Breeden testified that she was no

longer busy throughout her workday after the 2005 realignment.

But Breeden did not prove that the realignment rendered her

services dispensable, or no longer economically valuable, nor did

she show that anyone expected a reduction in sales force as a

result of the 2005 realignment; the jury was left to reach its

own conclusion about the “inevitability” of Breeden’s

termination, without legally sufficient evidence of proximate

cause.

          If the record establishes anything, indeed, it is that

the 2005 and 2008 realignments were completely disconnected from

one another.   There is no evidence that those involved with the

2005 realignment -- primarily transplant unit head Brian

O’Callaghan and the ZS Associates consulting firm -- actually

anticipated Breeden’s termination.      Neither O’Callaghan nor ZS

Associates had any involvement with the 2008 realignment.      It was

a new transplant unit head, Jesus Leal, and a different outside

consulting firm, Powell & Associates, that reached the

realignment decisions that resulted in Breeden’s termination.

That second realignment implemented a new business strategy,

developed by new strategists.   There is no evidence that the 2008

realignment was foreseeable from 2005 (ex ante), and because the

2008 realignment was a substantial intervening cause, Breeden’s

termination cannot be staid to have been the direct result (ex


                                - 7 -
post) of the 2005 realignment,3   or of Novartis’ failure to

increase the size of Breeden’s sales territory thereafter.

                           Conclusion

          Because Breeden adduced no legally sufficient evidence

that she lost compensation or benefits “by reason of” the act and

failure to act about which she complains, judgment as a matter of

law must be entered for Novartis.   An appropriate order

accompanies this memorandum.




                                     JAMES ROBERTSON
                               United States District Judge




     3
       Breeden argues that she had the same direct supervisor
throughout the time period at issue, Tom Harper, and that his
constant presence undermines Novartis’s argument that the shift
in management team represents a substantial intervening cause.
But Breeden has presented no evidence that Harper had any
influence on the 2008 realignment or on the decision to terminate
her.

                               - 8 -
