                             In the

United States Court of Appeals
               For the Seventh Circuit
                         ____________

Nos. 07-2009, 07-3358

R ICHARD F RANZEN,
                                               Plaintiff-Appellant,
                                v.

E LLIS C ORPORATION,
                                              Defendant-Appellee.
                         ____________
          A ppeals from the U nited States District Court
      for the Northern District of Illinois, Eastern Division.
       N o. 03 C 641— M artin C. Ashm an, M agistrate Judge .
                         ____________

  A RGUED F EBRUARY 21, 2008—D ECIDED S EPTEMBER 10, 2008
                         ____________



  Before F LAUM, R IPPLE and R OVNER, Circuit Judges.
  R IPPLE, Circuit Judge. On January 29, 2003, Richard
Franzen filed a complaint against Ellis Corporation
(“Ellis”), his former employer. He alleged, inter alia, that
Ellis had interfered unlawfully with his right to take
medical leave under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2615(a)(1), and had discriminated
against him for taking leave, in violation of 29 U.S.C.
§ 2615(a)(2). Upon motion of Ellis, the trial was bifurcated
2                                     Nos. 07-2009, 07-3358

into liability and damages phases. A jury heard evidence
on the issue of liability and rendered a verdict in favor
of Mr. Franzen. The district court then held a bench trial on
the issue of damages. It found that Mr. Franzen was not
entitled to any damages; therefore, it also refused to grant
Mr. Franzen’s request for attorneys’ fees. For the reasons
set forth in this opinion, we affirm the judgment of the
district court.


                              I
                     BACKGROUND
                             A.
  Ellis Corporation employed Mr. Franzen as a mechanical
engineer from 1999 until mid-2002. At the end of April
2002, Mr. Franzen was seriously injured in an automobile
accident. On May 2, 2002, he called Jennifer Ruffolo, Ellis’
Human Resources Manager, and informed her that he
had been injured and was unsure when he would be able
to return to work. During this conversation, Ms. Ruffolo
requested that he provide her with a doctor’s note in
order to establish his eligibility to receive FMLA leave
and short-term disability benefits.
  On May 11, 2002, Mr. Franzen received in the mail a
packet that contained a number of forms, including a
medical certification form. Ellis employees were required
to complete this paperwork in order to receive short-
term disability and FMLA benefits. The forms stated that
Mr. Franzen had fifteen days from the date of receipt to
return the paperwork or his absences would be con-
Nos. 07-2009, 07-3358                                       3

sidered unexcused and he would not be entitled to these
benefits. His paperwork, including his medical certification
form, therefore was due to the company no later than
May 28, 2002.1
  After Mr. Franzen’s conversation with Ms. Ruffolo, Ellis
began paying Mr. Franzen short-term disability benefits
in anticipation of receiving proper medical documentation.
Nevertheless, Ellis claimed that, despite numerous calls
informing him of the necessity of the documentation and
the consequences of not sending it in a timely fashion, it
did not receive the proper medical certification from
Mr. Franzen by May 28, 2002. Accordingly, on May 28,
2002, Ellis denied Mr. Franzen’s request for FMLA leave.
  Because Mr. Franzen’s request for FMLA leave had been
denied, his absences from April 23 through May 28 were
considered unexcused. Ellis therefore terminated
Mr. Franzen’s employment on May 28, 2002, under the
terms of its Attendance and Punctuality policy. That day,
Ellis sent Mr. Franzen a letter notifying him that both
his short-term disability benefits and his employment
had been terminated because of his unexcused absences.


                             B.
 Complaining of severe back pain, Mr. Franzen made
numerous visits to physicians in the weeks after his


1
  This date is fifteen days from the date of receipt, plus two
additional days because May 26 was a Sunday and May 27
was a holiday.
4                                     Nos. 07-2009, 07-3358

accident. When conservative treatment failed, he visited
Dr. Avi Bernstein, an orthopedic surgeon. On June 13, 2002,
Dr. Bernstein issued Mr. Franzen a doctor’s note stating
that he was temporarily disabled and unable to work
until further notice.
  In July 2002, Dr. Bernstein performed surgery to repair
Mr. Franzen’s spine. Although the surgery was successful
from a medical standpoint, Mr. Franzen still complained
of severe pain in the months that followed. On Decem-
ber 9, 2002, in connection with Mr. Franzen’s application
for Social Security benefits, Dr. Bernstein offered his
medical opinion that Mr. Franzen was permanently and
totally disabled and that he therefore could not return to
any of his prior work activity or any other work. At no
time since his discharge from Ellis did Mr. Franzen seek
alternate employment.


                            C.
   In January 2003, Mr. Franzen filed a complaint in the
United States District Court for the Northern District of
Illinois, alleging that Ellis had interfered unlawfully with
the exercise of his FMLA rights under 29 U.S.C.
§ 2615(a)(1). He also alleged that Ellis had discriminated
against him in violation of 29 U.S.C. § 2615(a)(2), breached
his employment contract by failing to provide short-
term disability benefits, and violated a state law that
prohibits retaliatory discharge.
  Ellis moved for summary judgment on all claims. The
district court dismissed both the contract claim and the
Nos. 07-2009, 07-3358                                       5

retaliatory discharge claim on summary judgment, and
Mr. Franzen did not challenge this decision. The district
court denied Ellis’ summary judgment motion on the
FMLA claims. It held that a question of fact existed as to
whether Mr. Franzen had supplied Ellis with the
requisite documentation necessary for his receipt of
FMLA leave.
  Ellis then moved to bifurcate the trial on the FMLA
claims into separate liability and damages phases. Before
the district court could rule on this motion, however,
both parties consented to the exercise of jurisdiction by a
United States magistrate judge. Upon reassignment to
that judicial officer, the motion to bifurcate was granted.
  In April 2006, a jury trial was held on the issue of liabil-
ity. The sole issue of fact litigated before the jury was
whether Ellis had received the requisite medical docu-
mentation from Mr. Franzen prior to May 28, 2002. If it
had not received the requisite documentation, Mr. Franzen
was not entitled to FMLA protection. If it had, however,
then its termination of Mr. Franzen’s employment was
in violation of the FMLA.
  In support of his contention that Ellis in fact had re-
ceived his physician’s note prior to the deadline, Mr.
Franzen presented the testimony of Tamara Herman, a
secretary at his doctor’s office. 2 Ms. Herman testified
that, at least three times prior to May 28, she had faxed


2
  As a sanction for his failure to comply with a number of the
court’s prior discovery orders, Mr. Franzen was barred from
testifying himself at trial.
6                                        Nos. 07-2009, 07-3358

to Ellis’ Human Resources Department a note from
Mr. Franzen’s physician, Dr. Konowitz, stating that he
was temporarily unable to return to work.3 In its defense,
Ellis introduced testimony from Ms. Ruffolo, its Human
Resources Manager. Ms. Ruffolo testified that she had
not received the necessary documentation from Mr.
Franzen before May 28, 2002, despite numerous phone
calls informing him that she needed to receive it by
that date. Specifically, she denied having received any
fax from Dr. Konowitz’s office prior to May 28.
  At the conclusion of the trial, the jury was given the
following interrogatory:
      Did Plaintiff prove by a preponderance of the evi-
    dence that Defendant received the requested medical
    documentation by May 28, 2002? If you answer yes,
    then you are finding in favor of the Plaintiff. If your
    answer is no, then you are finding in favor of the
    defendant.
Tr. at 72. After deliberation, the jury answered “yes,”
finding in favor of the plaintiff. Id. On April 20, 2006, the



3
  Outside the presence of the jury, in an attempt to procure
the admission of the doctor’s note itself into evidence, Mr.
Franzen proffered the testimony of Dr. Konowitz regarding
the authenticity of the note. During this examination, Dr.
Konowitz stated that, based upon the information available to
him at the time, he believed that Mr. Franzen could have
returned to work full time as of May 31, 2002. Tr. Vol. 14 at 64.
This testimony was not refuted by the company at this time,
however, because it went to the question of damages rather
than liability.
Nos. 07-2009, 07-3358                                         7

court entered the following docket entry: “Jury returns
its verdict in favor of plaintiff Richard Franzen and
against Ellis Corporation as to liability only.” R.188.
  The district court then held a bench trial to determine
the appropriate amount of damages. Mr. Franzen sought
nearly $1 million in back pay and front pay, contending
that he would have been able to work and earn wages
from May 28, 2002 (the date of his discharge) through
the time of his planned retirement at age 65.
  In response, Ellis presented evidence that Mr. Franzen
was either unwilling or unable to return to work at any
time after his accident. It pointed to Mr. Franzen’s prior
deposition statements in which he admitted that he was
totally incapacitated and unable to work at all times
after his accident. Ellis also presented testimony from
Dr. Bernstein, the surgeon who had performed spinal
surgery on Mr. Franzen in July 2002. He stated that Mr.
Franzen was permanently disabled and unable to return
to work as of at least June 2002. Ellis noted that Mr.
Franzen had refused to appear for depositions during
discovery because he had claimed to have been too ill
to attend.4 Finally, Ellis contended that, if the court found
Mr. Franzen’s argument that he was able to return to



4
  Mr. Franzen filed a number of “emergency motions” request-
ing that he not be required to submit to depositions because
he was too ill to attend. Ellis filed a motion for discovery
sanctions. The district court ultimately barred Mr. Franzen
from testifying at trial as a sanction for his failure to comply
with discovery.
8                                     Nos. 07-2009, 07-3358

work immediately after his discharge to be credible, then
he was barred from recovery because he had failed to
mitigate his damages by seeking alternate employment.
  On April 3, 2007, the district court concluded that Mr.
Franzen had not proven that he was entitled to any dam-
ages. It stated in open court that “it is extremely clear
that the plaintiff was unable to work from the time of his
accident,” R.279 at 28, and that, even if Mr. Franzen had
been physically able to work, “there is no evidence that
he mitigated his damages . . . he never tried to work,”
R.279 at 30. The court therefore entered the following
minute order:
    The court finds that there are no damages that have
    been proven to this court, and therefore, the amount of
    damages is zero. There being no damages this case is
    dismissed with prejudice. . . . There are no attorneys’
    fees available where the defendant has prevailed for
    the reasons stated in open court. Civil case terminated.
R.253.
  Mr. Franzen then filed a motion to alter or amend the
judgment. He first contended that he was entitled to an
award of attorneys’ fees under 29 U.S.C. § 2617(a)(3)
because, even if he had failed to prove damages, the
jury had found that Ellis violated the FMLA. He also
submitted that Ellis should have been estopped at the
damages trial from introducing evidence of Mr. Franzen’s
inability to return to work because the issue already
had been decided implicitly by the jury. Finally, Mr.
Franzen argued that the district court improperly denied
him his right to a jury trial on the issue of back pay.
Nos. 07-2009, 07-3358                                     9

  The district court concluded that the jury verdict was not
a “judgment” on the issue of liability. Therefore, the jury
verdict was insufficient to satisfy the “judgment” require-
ment of the FMLA’s fee-shifting provision. It also decided
that estoppel was inappropriate here because the jury
had not been asked to determine whether Mr. Franzen
could have returned to work at the end of his twelve-
week leave period. Finally, he concluded that back pay
was an equitable remedy, and therefore a jury trial on
the issue of damages was not required. Accordingly, the
court denied the motion to alter or amend the judgment.
Mr. Franzen timely appealed.


                            II.
                        DISCUSSION
                            A.
  Mr. Franzen first submits that the district court improp-
erly denied him a jury trial on the question of damages,
in violation of his rights under both the FMLA and the
Seventh Amendment. The district court concluded that
a jury trial was not required in this case because the only
forms of relief that Mr. Franzen sought—“back pay” and
“front pay”—were both equitable in nature. In making
this determination, it relied upon language from a num-
ber of our cases in which we remarked that back pay, like
front pay, is an “equitable remedy.” See, e.g., Doe v.
Oberweis Dairy, 456 F.3d 704, 714 (7th Cir. 2006) (holding
that the common law doctrine of comparative fault is not
a defense to Title VII because back pay is equitable in
10                                         Nos. 07-2009, 07-3358

nature); David v. Caterpillar, Inc., 324 F.3d 851, 865-66 (7th
Cir. 2003) (stating that “the district court has broad equita-
ble discretion to fashion back pay awards to make the
Title VII victim whole” (citation omitted)); Pals v. Schepel
Buick & GMAC Truck, Inc., 220 F.3d 495, 500-01 (7th
Cir. 2000) (asserting that back pay, like front pay, is an
equitable remedy).
  As Mr. Franzen notes, however, each of the cases
relied upon by the district court involved back pay under
Title VII, not the FMLA, and none directly addressed the
right to a jury trial under either statute. Furthermore, he
submits, the only circuit to have addressed the issue
squarely concluded otherwise and held that a plaintiff
who requests back pay as a remedy does have a right to
a jury trial under the FMLA. See Frizzell v. S.W. Motor
Freight, 154 F.3d 641, 643-44 (6th Cir. 1998).5 In Frizzell, the
Sixth Circuit considered the structure and the legislative



5
  At least three district courts have agreed with the Sixth
Circuit’s interpretation of the FMLA. See Bryant v. Delbar Prods.,
18 F. Supp. 2d 799 (M.D. Tenn. 1998); Helmly v. Stone Container
Corp., 957 F. Supp. 1274, 1275 (S.D. Ga. 1997); Sounders v. Fleming
Co., 960 F. Supp. 218, 219 (D. Neb. 1997). Ellis cites only one
case—an unreported, one paragraph case out of the Eastern
District of Tennessee—that concluded otherwise. See Hicks v.
Maytag Corp., 1995 WL 908171 (E.D. Tenn. July 13, 1995). The
Tenth Circuit, in Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298
F.3d 955, 965 (10th Cir. 2002), also noted with approval a
district court’s decision to hold a jury trial on issues of back pay,
which it described as “legal” relief, and a bench trial on issues
of front pay, which it saw as “equitable” relief.
Nos. 07-2009, 07-3358                                      11

history of the FMLA, particularly its close ties to the
Fair Labor Standards Act (“FLSA”). Because courts have
“uniformly interpreted” the remedial provisions of the
FLSA to provide a right to a jury trial, see Feltner v. Colum-
bia Pictures Television, Inc., 523 U.S. 340, 347 (1998), and
both the structure and the legislative history of the
FMLA suggest that Congress intended the remedial
provisions of the FMLA to mirror those of the FLSA, the
court inferred that Congress had intended to provide a
right to a jury trial under the FMLA as well. Frizzell, 154
F.3d at 644. It also remarked that reliance on Title VII and
ERISA case law for the proposition that back pay is an
“equitable” remedy is inappropriate “[b]ecause the
FMLA’s link to the remedial provisions of the FLSA is
stronger than it is to Title VII or ERISA.” Id. Mr. Franzen
submits that we should adopt the Sixth Circuit’s
holding that the FMLA provides a right to a jury trial for
plaintiffs claiming back pay as a remedy for violations
of the statute.
  Whether a plaintiff seeking back pay under the FMLA
is entitled to a jury trial appears to be an issue of first
impression in this circuit. It is also, however, an issue that
we need not decide at this time. As we shall explain below,
the evidence in this case established, as a matter of law,
that Mr. Franzen was not entitled to damages because
(1) he was unable to return to work at the end of the 12-
week FMLA period, and (2) he failed to mitigate his
damages. On the evidence in this record, no reasonable
jury could have found otherwise. Therefore, if the dis-
trict court had held a jury trial on the issue of damages, it
would have been required to direct a verdict in favor of
12                                     Nos. 07-2009, 07-3358

Ellis. See Fed. R. Civ. P. 50(a). Consequently, we need not
decide today whether Mr. Franzen otherwise would
have had a right to a jury trial when requesting back pay
under the FMLA.


                             B.
  Mr. Franzen contends that, because the jury determined
that Ellis had received the doctor’s note prior to the
deadline and therefore discharged him in violation of the
FMLA, he was entitled to damages. Specifically, he re-
quested damages in an amount equivalent to his lost
wages from the date of his discharge to the date of trial
(“back pay”), his potential earnings from the date of trial
to his planned retirement date of 2011 (“front pay”) and
liquidated damages and attorneys’ fees as provided
under the statute.6 See 29 U.S.C. § 2617.
  An employee may be entitled to both back pay and front
pay as a remedy for losses flowing from an employer’s
interference with his substantive rights under the
FMLA; however, section 2617 provides no relief unless the
plaintiff can prove that he was prejudiced by the violation.
See Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81, 89
(2002). We have held that a plaintiff may not collect



6
  Mr. Franzen did not request nominal damages either before
the district court or on appeal; accordingly, we need not
determine whether nominal damages otherwise are available
under the FMLA. Cf. Walker v. United Parcel Service, Inc., 240
F.3d 1268, 1277-78 (10th Cir. 2001) (holding that nominal
damages are not available to plaintiffs under the FMLA).
Nos. 07-2009, 07-3358                                     13

damages for periods of time in which he otherwise
would have been unable to work for the company. Flowers
v. Komatsu Mining Sys., Inc., 165 F.3d 554, 557-58 (7th Cir.
1999). An employee also has no right to reinstate-
ment—and, therefore, damages—if, at the end of his
twelve-week period of leave, he is either unable or unwill-
ing to perform the essential functions of his job. See 29
C.F.R. § 825.214(b); Colburn v. Park Hanifin/Nichols Port-
land Div., 429 F.3d 325, 332 (1st Cir. 2005). Accordingly, if
Mr. Franzen was either unwilling or unable to return
to work at the expiration of his FMLA leave, Ellis lawfully
could have terminated his employment, and he would
not be entitled to damages resulting from this termination.
  At the bench trial on damages, Ellis introduced the
following excerpt from Mr. Franzen’s pre-trial deposition,
in which he admitted that he was unable to return to
work after his accident:
    Q. Mr. Franzen, have you been employed since you
    were terminated from Ellis Corporation?
    A. No, I have not.
    Q. Is there a reason why you have not been employed?
    A. Yes.
    Q. And what is that reason?
    A. I am unable to return to work.
    Q. Are you unable to work anywhere?
    A. That is correct.
    Q. Have you been unable to work since your termina-
    tion from Ellis Corporation?
14                                    Nos. 07-2009, 07-3358

     A. Since before.
     ....
     Q. At what point did you become unable to work?
     ....
     A. On the date of my auto accident, April 30th.
     Q. And when you say you’re unable to work, I believe
     you said in any position. Does that mean you could
     not have worked in any job in the universe since
     your auto accident?
     A. That’s correct.
     Q. Including your job at Ellis Corporation?
     A. That is correct.
     Q. And can I assume that you haven’t looked for work
     since your termination?
     A. Correct.
     Q. And I’m assuming you haven’t looked for work
     because you are unable to work?
     A. Correct.
     Q. Did your doctor tell you you were unable to work,
     or is that your own conclusion?
     A. No. My doctor told me.
     Q. Which doctor told you that?
     A. Dr. Bernstein.
R.216, Ex. 1 at 484-86.
Nos. 07-2009, 07-3358                                  15

  In addition to these admissions, Ellis presented testi-
mony from Dr. Bernstein, Mr. Franzen’s spinal surgeon,
who confirmed his previous opinion that Mr. Franzen
had been disabled and unable to work as of at least
June 2002. Ellis also introduced letters written by
Dr. Bernstein in connection with Mr. Franzen’s applica-
tion for social security benefits, in which he offered his
medical opinion that Mr. Franzen was permanently and
totally disabled. Additionally, Ellis pointed to Mr.
Franzen’s refusal on numerous occasions to appear for
depositions in these proceedings—asserting that he
was too disabled to participate—as proof that he was
unable and/or unwilling to return to Ellis at the end of
his FMLA leave period.
   As the district court noted, Mr. Franzen presented no
credible evidence to rebut Ellis’ submission that he was
unable and/or unwilling to return to work after his acci-
dent. In support of his claim, Mr. Franzen offered only
the testimony of two physicians who had treated him
after his accident: Dr. Konowitz and Dr. McCune. Dr.
Konowitz testified that, based on the information in his
file, he knew of no reason that Mr. Franzen would have
been unable to return to work as of May 31, 2002. Impor-
tantly, however, he also stated that his file contained
information on Mr. Franzen only until June 2002, and he
was not aware that Mr. Franzen subsequently had under-
gone surgery to repair his spine. Dr. McCune confirmed
that he had given Mr. Franzen a doctor’s note clearing
him for full-time work as of May 20, 2002; however, he
similarly testified that he was unaware of Mr. Franzen’s
surgery. Furthermore, Dr. McCune’s clearance note is of
16                                      Nos. 07-2009, 07-3358

limited usefulness to Mr. Franzen, considering the fact
that Mr. Franzen made no attempt to return to work on
May 20—more than a week before he was discharged from
Ellis. Finally, Mr. Franzen presented the testimony of
Tamara Herman, an administrative assistant to Dr.
Konowitz. She testified that she had seen Mr. Franzen
come to the doctor’s office on one occasion, and she had
not noticed him having any problems walking. To the
extent that this testimony is at all relevant, it certainly is
not indicative of Mr. Franzen’s ability to return to work.
Indeed, in his brief on appeal, Mr. Franzen does not
contend that any evidence in the record showed that he
was, in fact, able and willing to work; he contends only
that Ellis should have been estopped from presenting
evidence otherwise.
  Specifically, Mr. Franzen contends that Ellis should
have been barred from presenting evidence regarding
his ability to return to work at the damages phase of the
trial because either (1) it had conceded the issue at the
jury trial on liability, or (2) the jury implicitly had decided
the issue when it found Ellis liable under the FMLA, and
the district court was therefore barred from reaching
a contrary conclusion. These arguments are without merit.
  As the district court noted, Ellis had no reason to
present evidence of Mr. Franzen’s inability to return to
work at the jury phase of the trial. The sole question
before the jury was: “Did Plaintiff prove by a preponder-
ance of the evidence that Defendant received the re-
quired medical documentation by May 28, 2002?” Tr. at 72.
Mr. Franzen’s ability to return to work at the end of his
Nos. 07-2009, 07-3358                                       17

leave period is not relevant to this question; it is relevant
solely to the question of damages. Accordingly, Ellis did
not waive its right to contest Mr. Franzen’s ability to
return to work by waiting to present evidence at the
damages phase of the trial.
  Under the doctrine of issue preclusion or direct estoppel,
a district court may not re-decide factual issues already
necessarily determined by a jury. See United States v. Bailin,
977 F.2d 270, 276 (7th Cir. 1992); Lindsey v. Am. Cast Iron
Pipe Co., 810 F.2d 1094, 1098 (7th Cir. 1987). Mr. Franzen
submits that the jury’s finding of liability necessarily
included a finding that he would have been able to
return to work at least by the end of the twelve-week
period, and, therefore, the court may not find otherwise
at the damages stage of the proceedings.
   Each of the cases cited by Mr. Franzen, however, in-
volved a jury trial in which the jury had determined
both liability and damages issues, and the judge then
considered only whether the plaintiff was entitled to
equitable remedies. A jury award of back pay necessarily
includes a determination that the plaintiff was able to
return to work; therefore, under direct estoppel principles,
a district court could not refuse to grant equitable relief on
the ground that the plaintiff was unable to return to work.
See, e.g., Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d
955, 965-66 (10th Cir. 2002). In this case, however, the jury
did not consider Mr. Franzen’s entitlement to damages;
it merely determined that Ellis had received a doctor’s
note and therefore terminated Mr. Franzen in violation
of the FMLA. This conclusion does not necessarily
18                                    Nos. 07-2009, 07-3358

include a finding that he was entitled to reinstatement or
damages. Accordingly, the judge was not precluded
from finding otherwise at the damages portion of the trial.
  Mr. Franzen’s only plausible argument with respect to
damages involves the twelve-week period in which Mr.
Franzen’s employment was protected under the FMLA.
Although the FMLA itself does not require that the leave
provided to employees be paid, see 29 U.S.C. § 2612(c), Ellis
voluntarily maintained a company policy of awarding
short-term disability pay concurrently with FMLA leave.
In fact, Ellis paid Mr. Franzen $1500 biweekly, or 60
percent of his salary, from the date of his injury to the
date of his termination. This short-term disability pay-
ment, he contends, would have continued for at least
twelve weeks had he not been discharged prematurely in
violation of the FMLA. Relying on Strickland v. Water Works
& Sewer Board, 239 F.3d 1199, 1205 (11th Cir. 2001), Mr.
Franzen submits that, at a minimum, the district
court should have awarded him damages equivalent to
the short-term disability pay that he would have re-
ceived over this twelve-week period.
  The district court declined to award Mr. Franzen these
damages for three reasons: (1) the court already had
dismissed on summary judgment his contract claim for
short-term and long-term disability pay, a judgment that
Mr. Franzen declined to appeal; (2) Mr. Franzen had
waived any right to assert disability pay as a component
of his damages because, throughout the proceedings, he
had requested only back pay, front pay, liquidated dam-
ages and attorneys’ fees under the FMLA; and (3) Mr.
Franzen made no attempt to mitigate his damages.
Nos. 07-2009, 07-3358                                     19

  We agree with the court’s conclusion. We first note that,
until his motion to alter or amend the judgment, Mr.
Franzen’s only mention of an entitlement to disability
benefits was in connection with his contract claim. In his
initial complaint, Mr. Franzen contended that he was
entitled to both short-term and long-term disability
benefits under his employment contract with Ellis. The
district court concluded otherwise, however, noting that
he was an at-will employee and that Ellis’ employee
handbook, which was cited by Mr. Franzen as the basis for
his entitlement to disability benefits, also contained
language that specifically disclaimed the creation of a
contract. Accordingly, the court determined that Mr.
Franzen had no entitlement to either short-term or long-
term disability pay, and it dismissed his claim. R.112 at 10.
Mr. Franzen declined to appeal this judgment. He cannot
now subvert this conclusion by contending that he was
entitled to disability benefits during the twelve weeks
that he was protected under the FMLA.
  Moreover, Mr. Franzen failed to include disability pay as
a component of his asserted damages under his FMLA
claim until after a bench trial on damages was held and a
final judgment was entered. In his pre-trial submissions
to the court, Mr. Franzen set forth an itemized statement
of the damages that he requested. This itemization was
limited to back pay, front pay, interest, liquidated damages
and attorneys’ fees. Nowhere did he mention any entitle-
20                                    Nos. 07-2009, 07-3358

ment to short-term disability benefits.7 The Final Pretrial
Order similarly contains no reference to disability bene-
fits. Mr. Franzen did not proffer lost disability pay
as a form of damages under the FMLA until he filed his
Rule 59(e) motion to alter or amend the judgment. At this
point, it was too late. See Sigsworth v. City of Aurora, 487
F.3d 506, 512 (7th Cir. 2007) (“[I]t is well-settled that a
Rule 59(e) motion is not properly utilized to advance
arguments or theories that could and should have been
made before the district court rendered a judgment.”
(internal quotation marks omitted)).
  Indeed, with respect to disability payments as well as
any other form of damages, it is important to note that,
under his own theory of the case, Mr. Franzen claims
that he was able and willing to return to work as of
May 28, 2002. Nevertheless, he admitted in his deposi-
tion that he made no effort to obtain another position
elsewhere after his termination from Ellis. We have
cautioned that a person discharged—even illegally—
cannot simply refuse to seek other employment and
expect his former employer to pay his salary until he
reaches retirement age. Mattenson v. Baxter Healthcare
Corp., 438 F.3d 763, 771 (7th Cir. 2006). “The familiar
common law duty of mitigating damages is imposed: the
employee must make a diligent search for comparable
employment.” Id. If Mr. Franzen’s theory of the case is



7
  Indeed, even in his motion to alter or amend the judgment
and his brief on appeal, Mr. Franzen failed to quantify the
amount of disability pay to which he believes he is entitled.
Nos. 07-2009, 07-3358                                         21

true, and he in fact was able to return to work as soon as
May 28, 2002, then his failure to mitigate his damages by
seeking substitute employment was unreasonable and
bars his recovery of disability benefits, as well as any
other form of damages requested by Mr. Franzen.
  In sum, we conclude that Mr. Franzen failed to prove
that he was prejudiced by Ellis’ violation of the FMLA.
Overwhelming evidence in the record shows that he was,
at all times after his accident, unable and/or unwilling
to return to work. Mr. Franzen made no effort to rebut
Ellis’ overwhelming evidence that he had failed to
mitigate his damages. Accordingly, he cannot succeed on
his FMLA claim.


                               C.
  Finally, Mr. Franzen contends that, regardless of whether
he is entitled to damages, he is entitled to an award of
attorneys’ fees because he proved that Ellis had interfered
unlawfully with his rights under the FMLA. See 29 U.S.C.
§ 2617(a)(3) (“The court in such an action shall, in addition
to any judgment awarded to the plaintiff, allow a reason-
able attorney’s fee . . . .” (emphasis added)).
   Unlike most other statutory fee-shifting provisions,
section 2617 requires an award of attorneys’ fees to the
plaintiff when applicable. The award is not left to the
discretion of the district court. Id.; see also Sherry v. Protec-
tion, Inc., 14 F. Supp. 2d 1055, 1057 (N.D. Ill. 1998);
McDonnell v. Miller Oil Co., Inc., 968 F. Supp. 288, 292 (E.D.
Va. 1997). In this way, it is more favorable toward prevail-
22                                     Nos. 07-2009, 07-3358

ing plaintiffs than many other statutory fee-shifting
provisions. See McDonnell, 968 F. Supp. at 293. Further-
more, other courts have noted that the fee-shifting provi-
sion of the FMLA, which awards attorneys’ fees in addi-
tion to “any judgment” for the plaintiff, may apply more
broadly than similar provisions in other statutes that
refer instead to “prevailing parties.” See Sherry, 14 F. Supp.
2d at 1055, 1057; McDonnell, 968 F. Supp. at 293 (noting
that “ ‘any judgment’ likely includes such limited and
even Pyrrhic victories for a plaintiff that might fail to meet
the Supreme Court’s test of a ‘prevailing party’ ”). Never-
theless, the plain wording of the statute provides some
limit on this preference for awarding attorneys’ fees to
plaintiffs who prove that the defendant violated the
FMLA. According to 29 U.S.C. § 2617(a)(3), an actual
“judgment” in favor of the plaintiff is a necessary trigger-
ing event for an award of attorneys’ fees under the FMLA.
Id.; see also Stomper v. Amalgamated Transit Union, 27 F.3d
316, 318 (7th Cir. 1994) (holding that “the plaintiff must
prevail by judgment in order to receive an award of at-
torneys’ fees”).
  In this case, however, the district court did not enter
judgment in favor of the plaintiff. Although the jury
found that Ellis’ termination of Mr. Franzen’s employment
had been in violation of the FMLA, the district court also
found that Mr. Franzen had failed to prove that he was
entitled to any damages. Accordingly, the court dismissed
the case and entered judgment in favor of Ellis. Under
the plain wording of section 2617, then, Mr. Franzen is not
entitled to an award of attorneys’ fees because no “judg-
ment” was “awarded to the plaintiff.” 29 U.S.C.
§ 2617(a)(3); see also Stomper, 27 F.3d at 318.
Nos. 07-2009, 07-3358                                           23

  Despite the fact that the district court entered final
judgment in favor of Ellis, Mr. Franzen contends that he
nevertheless is entitled to attorneys’ fees. In his view, the
jury’s verdict in his favor on the issue of liability is a
sufficient “judgment” to warrant an award under
section 2617(a)(3).8 An interlocutory jury verdict on the



8
  In support, Mr. Franzen pieces together the language of some
unrelated sources to suggest that the jury verdict here was a
type of “interlocutory judgment” sufficient to satisfy Federal
Rule of Civil Procedure 54(a)’s definition of “judgment,” and,
therefore, that this verdict is sufficient to satisfy the “any
judgment” requirement of section 2617(a)(3). See Appellant’s Br.
at 10-11 (citing, inter alia, Fed. R. Civ. P. 56(c) & 58; Syvock v.
Milwaukee Boiler, 665 F.2d 149, 165 (7th Cir. 1981); Harris v.
Goldblatt, 659 F.2d 784, 786 (7th Cir. 1981)). These cases, how-
ever, involve only the appealability of interlocutory judg-
ments—they do not discuss the meaning of “judgment” for the
purpose of applying a fee-shifting provision in a statute.
   Mr. Franzen also invites our attention to a paragraph from
a prominent treatise on the subject; however, contrary to Mr.
Franzen’s inaccurate quotation, the cited source in fact
suggests that attorneys’ fees are available only when a plaintiff
is awarded damages in an amount greater than zero. Compare
Wright & Miller, Federal Practice & Procedure, § 2667 (3d ed.
2008) (noting that “when the jury finds for plaintiff as to
liability, it has been held that plaintiff is the prevailing party
and entitled to costs even though the jury determines that
plaintiff has suffered no more than nominal damages” (emphasis
added)), with Appellant’s Br. at 11 (misquoting Wright &
Miller to state that “when the jury finds for plaintiff as to
                                                     (continued...)
24                                        Nos. 07-2009, 07-3358

issue of liability alone, however, is insufficient to con-
stitute a judgment awarded to the plaintiff. See
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Res., 532 U.S. 598, 604-05 (2001) (noting that an
“interlocutory ruling” is insufficient to establish a judg-
ment on which an award of attorneys’ fees may be based
because it does not create a “material alteration of the
legal relationship of the parties”). As we noted in Stomper:
     “[I]n addition to any judgment awarded to the plain-
     tiff” implies a favorable judgment. Every case ends with
     a judgment of some kind; in this case the terminating
     order reads: “Judgment is entered dismissing this
     case with prejudice in light of the parties’
     settlement . . . .” So far as the merits go, plaintiffs not
     only did not prevail but also suffered dismissal of their
     complaint with prejudice. That is not a judgment
     “awarded to” the plaintiffs; it is a judgment suffered by
     the plaintiffs. If this were the sort of “judgment” to
     which fees may be added, even a judgment in defen-
     dants’ favor after full deliberation would produce an
     award of fees to plaintiffs—for a judgment reading
     “Plaintiffs shall take nothing by their complaint” is
     still a judgment.
27 F.3d at 318-19 (emphasis in original). We continued:



8
   (...continued)
liability, it has been held that plaintiff is the prevailing party
and entitled to costs even though the jury determines that
plaintiff has suffered no damages.” (emphasis added)).
Nos. 07-2009, 07-3358                                       25

    Delta Air Lines[, Inc. v. August, 450 U.S. 346 (1981)] held
    that a complete lack of success did not require the
    offeree to pay the other side’s costs. Only a positive
    award to the offeree permits cost shifting under Rule
    68, the Court concluded, because only a decision
    favorable in some respect is a judgment “obtained by”
    the plaintiff. By a similar approach, only concrete
    relief is a “judgment awarded to the plaintiff” that
    permits fee shifting under § 201(c).
Id. at 319 (emphasis added); see also Tunison v. Cont’l
Airlines Corp., 162 F.3d 1187, 1190 (D.C. Cir. 1998) (“Unlike
the award of nominal damages at issue in Farrar, a judg-
ment with no damages at all is not an ‘enforceable judg-
ment’—there is simply nothing to enforce.”); PH Group
Ltd. v. Birch, 985 F.2d 649, 652 (1st Cir. 1993) (“[A]n award
of zero damages, supported by a rational basis in the
record, is generally considered a judgment for defen-
dant.”).
  Mr. Franzen also invites our attention to some district
court cases, see Stomper, 27 F.3d at 318; Rice v. Sunrise
Express, 237 F. Supp. 2d 962, 969 (N.D. Ind. 2002); Sherry, 14
F. Supp. 2d at 1057; McDonnell, 968 F. Supp. at 292, in
which the court awarded attorneys’ fees to the plaintiff
under section 2617, even though the plaintiff received
either minimal or nominal damages and therefore
would not have been considered a “prevailing party”
under most fee-shifting provisions. Each of these cases
is readily distinguishable, however, as each involved an
award of at least a nominal amount of damages to
the plaintiff. Here, on the other hand, the court concluded
26                                      Nos. 07-2009, 07-3358

that Mr. Franzen had failed to prove that he was entitled
to any damages, and it therefore entered judgment in
favor of the defendant. As the district court remarked,
“[t]he difference between this case and [those cases cited
by the plaintiff] hinges on the difference between a judg-
ment and a verdict . . . .” R.269 at 6. This type of interlocu-
tory jury verdict, alone, is insufficient to establish a
“judgment awarded to the plaintiff” on which an award
of attorneys’ fees under section 2617 may be based.


                         Conclusion
 For the reasons set forth above, we affirm the judg-
ment of the district court.
                                                    A FFIRMED




                            9-10-08
