Too often in EEO cases, plaintiffs’ lawyers treat the clients’ damages as just an after-thought to liability. So in this ghastly FMLA decision, the plaintiff wins a jury verdict on liability but takes nothing in relief (not even attorney’s fees or costs), in part because his lawyer failed to request nominal damages.
Franzen v. Ellis Corp., No. 07-2009 (7th Cir. Sept. 10, 2008): The plaintiff charged Ellis Corp. with interfering with his right to take medical leave under the FMLA, 29 U.S.C. § 2615(a)(1), and discriminating against him for taking leave in violation of 29 U.S.C. § 2615(a)(2). The district court bifurcated his case, trying liability before a jury but reserving damages for a bench trial. (This case discusses — but leaves for decision another day — whether an FMLA claim for lost back pay ought to be tried to a jury, or is an equitable claim tried to the bench.) So the only issue before the jury was “whether Ellis had received the requisite medical documentation from Mr. Franzen prior to May 28, 2002.” The jury returned a verdict for plaintiff.
But the plaintiff, owing to severe back pain, was certified as totally disabled and dropped out of the job market. Hence, in phase II of the trial, the judge denied in its entirety the plaintiff’s demand for $1 million in back pay and entered a judgment for the defendant.
This judgment was affirmed on appeal: “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.” The Seventh Circuit rejected arguments that (1) the judge was barred from reconsidering the jury’s implicit conclusion that the plaintiff could have returned to work, however short a time that might have been, or (2) that at a minimum, the plaintiff ought to have been awarded twelve-weeks’ worth of short-term disability pay which he missed while on leave.
So could the plaintiff at least have prevailed (owing to the jury verdict) enough to warrant an attorney’s fee award under the FMLA, 29 U.S.C. § 2617(a)(3)? As the Seventh Circuit noted, under that section a fee award is compulsory for a successful plaintiff (“The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee . . . .” (emphasis added)). But in this case, holds the Seventh Circuit, no fees are allowed because the jury verdict itself was not a “judgment” in favor of the employee. And because “Mr. Franzen did not request nominal damages either before the district court or on appeal,” the case does not fall into the realm of Farrar v. Hobby, 506 U.S. 103 (1992), which allows attorney’s fee awards based on nominal damages. So in spite of a violation of the statute, Ellis Corp. skates away with no liability (and, most likely, with an award of its costs).