Daniel R. Arban v. West Publishing Corp.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0341P (6th Cir.)
File Name: 03a0341p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DANIEL R. ARBAN,
Plaintiff-Appellee/
Cross-Appellant,
v.
WEST PUBLISHING CORP.,
Defendant-Appellant/
Cross-Appellee.
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Nos. 01-2278/2370
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-73520—Bernard A. Friedman, District Judge.
Argued: June 13, 2003
Decided and Filed: September 24, 2003
Before: KEITH, MOORE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Abraham Singer, PEPPER HAMILTON,
Detroit, Michigan, for Appellant. William G. Tishkoff,
LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan,
for Appellee. ON BRIEF: Abraham Singer, Michelle
2 Arban v. West Publishing Corp. Nos. 01-2278/2370
Motowski Lund, PEPPER HAMILTON, Detroit, Michigan,
for Appellant. William G. Tishkoff, Marvin B. Bartlett,
LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan,
for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Daniel R. Arban
brought this action against West Publishing Corporation
(West) pursuant to the Family Medical and Leave Act
(FMLA), 29 U.S.C. § 2611 et seq. Arban alleged that West
violated the FMLA by terminating him while he was on
medical leave and by failing to reinstate him at the
completion of the leave. Arban also alleged that West
violated the FMLA by interfering with, restraining, or
denying him his right to take an FMLA leave. The case was
tried before a jury, which returned a verdict in favor of Arban.
West then filed a motion for judgment as a matter of law or
for a new trial, which the district court denied. West appeals.
Arban cross-appeals the district court’s denial of front pay
and liquidated damages and the district court’s grant of a stay
without bond. For the reasons set forth below, we affirm the
district court’s denial of West’s motion for judgment as a
matter of law or for a new trial, reverse and remand the trial
court’s denial of an award of liquidated damages, affirm the
district court’s denial of Arban’s claim for front pay, and
affirm the district court’s grant of a stay without bond.
I.
Arban began working as a sales representative for Lawyer’s
Cooperative Publishing in 1995. Lawyer’s Cooperative
Publishing merged with West in 1996. Arban has a
documented history of gastrointestinal problems, including
chronic and severe esophagitis and irritable bowel syndrome,
which began in the middle of 1995 or early 1996. In 1997,

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Arban was promoted from a field sales representative to a
regional field sales manager. In this position, he supervised
other representatives, while continuing to make sales. In
January 1998, Arban voluntarily returned to the position of
field sales representative in order to spend more time with his
children. At that time Arban’s immediate supervisor was
Robert Wolfe, who held the position of regional field sales
manager. Wolfe, in turn, reported to Nick Nicolini, who
served as senior regional field sales manager, and to James
Colantino, who served as director of sales.
In February 1998, Richard Carlson, who had replaced
Arban as a regional field sales manager, learned that the
preexisting account of the Hervas, Sotos law firm in suburban
Chicago had been cancelled, that a new account had been
generated in the name of James Sotos, and that Arban had
misrepresented this account as “a new sales activity.”
Carlson brought this information to the attention of Wolfe,
Nicolini, and Arban. On April 1, 1998, Arban received a
warning letter from Wolfe, which stated:
I cannot overstate the seriousness of the situation. . . .
West Online Solutions will now be responsible for
supporting an account where the revenue has been cut in
half. . . . This letter will warn you that misrepresentations
concerning an account are unacceptable to WEST
GROUP. I am confident that there will be no future
occurrence of such activity. However, I must include
that any future occurrence will subject you to further
disciplinary action, up to and including termination from
West Group.
On December 16, 1998, Wolfe, Nicolini, and Carlson met
with Arban to discuss additional violations of company policy
committed by Arban and customer complaints that allegedly
had occurred in the intervening months. According to an e-
mail sent to Colantino by Wolfe the following day, the
meeting began “with a reminder that Dan has been involved
in switching names of accounts to achieve new sales that
4 Arban v. West Publishing Corp. Nos. 01-2278/2370
resulted in Dan benefitting from the sale.” Wolfe, Nicolini,
and Carlson then inquired about the “[i]nconsistency with
[Arban’s] reported numbers.” According to Wolfe, Arban
admitted “lack of follow up in getting his orders in.” Wolfe
also asked Arban about “sending in orders that do not have
signatures,” and Arban admitted that on at least nine
occasions he “did not talk to the decision maker to get a
verbal approval.” Wolfe explained to Arban that “this is not
allowable for Field Reps and is an abuse of our process.” In
his e-mail, Wolfe noted that Arban also “admitted to adding
products to the order without the customer’s permission.”
Wolfe described this as an “event that should cause
termination.” Wolfe concluded the e-mail with the following
statement:
We have numerous examples of gross negligence, fraud,
deceit and lack of moral character. These are not areas in
which corrective action can be taken. I can merely
monitor him more closely. I recommend that Dan be
terminated as an employee of West Group in the near
future. I also believe that everyone has a right to dignity
and respect, Dan should be given the chance to resign.
I welcome any and all feedback from my fellow
Managers to see if I have missed any major elements that
would allow Dan to continue. His production in [sic]
needed, I like the fellow and he truly has great sales
skills, unfortunately, the negative side outweighs the
positives. If I have not been open minded to an
alternative that I should consider, please let me know. I
have anguished over this decision and keep on coming up
with no other workable solutions.
(emphasis added). At trial, Wolfe testified that Colantino
“had the final authority to make the decision to terminate Mr.
Arban.”
In an e-mail to Colantino, Nicolini, and Wolfe sent on the
evening of December 17, Carlson noted that he “concur[red]

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in [Wolfe’s] summary” and added that he “believe[d] that
[Wolfe’s] conclusion is well-supported.” At trial, Carlson
explained that he believed that “Arban should be terminated
from the company” as a result of “[t]he account issues; the
misrepresentations of accounts to the company; the trouble to
the customers; the problems exceeded the good from Dan.”
At trial, Nicolini also testified that he agreed with the
recommendation to terminate Arban “[b]ecause of all the
ongoing things that Dan Arban had done.” Finally, Colantino
testified that after conferring with Wolfe, Nicolini, and Ira
Tiffenberg, a director of human resources for West, he
decided to terminate Arban in the middle of December.
Colantino testified that in the days following December 17, he
communicated to Nicolini his decision to terminate Arban
after the holidays. Wolfe also testified that “within a few
days of the December 16 meeting” Nicolini told him that “we
should go ahead and terminate after the holidays.”
On December 21, Wolfe accompanied Arban on a “field
ride.” At trial, Wolfe testified that the “Field Ride Recap” he
prepared after the field ride was “simply a review of what I
saw that day with one customer” and “not a general
evaluation of Mr. Arban.” According to the recap, Arban
received a rating of “meets expectations” in all areas. Wolfe
testified that he did not “tell Arban that all the problems that
were raised at the December 16 meeting were cured,” nor did
he tell Arban that “everything with him was in good
standing.” However, Arban testified that after the ride, Wolfe
made the following notation at the bottom of the recap:
“visited five accounts, all five accounts corrected.” The
handwritten comments on the form provided in the joint
appendix are illegible. Arban also testified that at no point
during the field ride did Wolfe indicate that he “hadn’t
properly followed up from the 16th.” Arban stated that Wolfe
told him that he was “very satisfied” and did not indicate that
any action would be taken against Arban.
Early in the morning of December 23, according to his
testimony, Arban awoke with “a severe amount of acid” in his
6 Arban v. West Publishing Corp. Nos. 01-2278/2370
throat. Arban called his physician’s office and described his
condition to an associate of his physician, who called in a
prescription to a pharmacy near Arban’s residence. The
office notes from the call state “anxiety reflux . . . wants time
off work.” Arban picked up the medication later that day.
On December 24, Arban contacted Joyce Van Sciver, a
human resources representative for West. Arban “explained
what had happened” and that he would “be needing to take
some time off.” Arban was told that there were no special
forms needed to request an FMLA leave, but that he should
contact West’s disability insurance carrier. Arban also told
Van Sciver that he had an appointment to see his physician on
December 28. A “leave of absence form” prepared by Van
Sciver on December 29 indicates that Arban’s leave began on
December 25, 1998. A January 19 letter to Arban from
West’s disability insurance carrier states that Arban’s claim
for short-term disability benefits was approved for the period
between January 4 and January 21.
On December 28, Arban visited his physician, who
provided him with a note stating that he had been treated for
“severe esophagitis and stress” and adding that Arban would
be “unable to work for 3wks.” Arban hand-delivered medical
certification forms he had received from West’s disability
insurance carrier to his physician’s office on December 29,
and Arban’s physician completed the forms on January 8.
Arban notified Wolfe of his medical leave via telephone on
December 28. In an e-mail to Nicolini sent that day, Wolfe
stated, “I have not called Dan regarding this yet, nor have I
spoke with Jim about this. I would think the first move would
be to check with HR.” Arban also notified Wolfe of his
medical leave via e-mail on December 28. Wolfe forwarded
Arban’s e-mail to Nicolini shortly after it was received, with
the words, “Here is a message from Dan. I would think you
also have some questions. Let’s talk and do the right thing.”

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 7
On December 29, Arban received a telephone call from
Don Owens, a sales representative, who explained that “Bob
Wolfe had instructed him to get these hot lists, to get the
different accounts and pending sales he could work with.”
Later that day, Wolfe called Arban at home. Arban testified
that Wolfe “wanted to kind of follow up on Don too to make
sure those sales got in, and he wanted to find out what it was
that I had done and how much I had given Don so he could
kind of track it.”
According to Arban, Owens called again the following day
“to check up with leads again.” Arban testified that Wolfe
also called on the afternoon of December 30. At trial, Arban
described the conversation:
Q. Okay, could you describe for the jury the phone call
that you had with Mr. Wolfe on the 30th?
A. He was upset. I thought that I was giving him
minimal effort. He said that the few leads that I
gave Don, you know, that was unacceptable, you
know, as a top performer, that I would have more
going than that and that I should be able to produce
a much more substantial list. And he said that he
really needed me to put an effort towards it – really
wanted me to come up with quite a bit, you know, as
much as I possibly could so again, he could make
these sales number.
Q. Did he describe why it was important to be doing
this at this time?
A. Well, we kind of knew – he reiterated just that it was
the end of the year and that there were – there was a
lot on the line for Jim Colantino and the exclusive
users. There were a lot of points involved. People
could win certain prizes and he wanted to make sure
that everybody got as much as they could.
8 Arban v. West Publishing Corp. Nos. 01-2278/2370
***
Q. Okay, I want to give you a chance to tell the jury
how it ended. What happened to conclude your
phone conversation with Mr. Wolfe on the 30th?
A. We were in the dialogue and Bob – you know, I
explained to Bob that I felt very uncomfortable,
based on the information that I knew about the
FMLA and based on what Hartford had told me, I
wasn’t supposed to be doing any work, that any
work I did could constitute jeopardizing my benefits
that I would get. So I told him that I felt that he was
really putting me on the spot here because I knew I
wasn’t supposed to be working; my doctor said I
wasn’t supposed to be working. And what he was
requesting was more than what I had given Don
initially. And he was asking me to do quite a bit
more and I didn’t think that was in the best interest
of what I was supposed to be doing at that point. I
think he said something like, you know, well, we’ll
see, and he slammed the phone down. The
conversation was over.
According to Arban, on December 31, Owens called him at
home again and stated that “Bob asked me to give you a call
and see if you’d reconsider.” Arban refused. On January 5,
Arban received another call at home from Wolfe. Arban
testified that Wolfe repeated his request that Arban provide
Wolfe with “different accounts that I can work so when you
come back from your leave you’re ready to roll.” In response,
Arban “explained that, again, I was certain that would be
against what I was supposed to be doing. I appreciated the
effort but, you know, that was not necessary. I would handle
it when I got back.”
Sometime between December 31 and January 3, Colantino
called Tiffenberg. Tiffenberg testified that Colantino
“indicated at that time that Mr. Arban had applied for short-

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 9
term disability and wanted to know whether or not we could
proceed – or he could proceed with the termination of Mr.
Arban’s employment.” Tiffenberg consulted with West’s in-
house counsel, who concluded that “there were no issues in
proceeding with the termination.” When asked at trial
whether he thought there was “any problem with terminating
Mr. Arban during his leave,” Tiffenberg said no, and
explained that “it had no relationship to the reasons for the
termination, and the termination we had made that decision
prior back in mid-December before Mr. Arban even had
applied for leave.” However, Tiffenberg also testified that he
was not “aware of any records or e-mail that documents an
actual decision being ordered by Mr. Colantino.”
Late in the afternoon on January 6, Arban received another
telephone call from Wolfe. At trial, Arban described the
conversation:
Q. All right. Go ahead. Will you describe that phone
call?
A. Bob called me again and asked me to come out and
meet with him, asked me to pick a spot where I
thought I could drive out and meet him. And I,
again, reiterated this to Bob, you know, I’m not
going to be able to do this. I can’t come to meet
with you. He suggested coming to my house and
meeting with me. I told him at this point, any work
that I did I thought was a violation, and he became
more and more insistent and said that it was not in
violation, that I needed to do this, this was
something I had to do.
***
Q. Okay. How did the phone conversation conclude?
A. He said if I wanted – he asked me why I was
unwilling to do that so I said I spoke with Hartford.
10 Arban v. West Publishing Corp. Nos. 01-2278/2370
Hartford said I was not supposed to do this. He said,
well, I’ll see about that. He’s going to call Hartford
and verify or check on whether or not that was to
take place – whether I could do that or not.
According to Arban, Wolfe called him again later that day.
Q. Okay, and what – go ahead. What was said to you
by Mr. Wolfe at that time?
A. Whole different tone at this point. He was very
upset, told me that I – he had called, spoke to
Hartford. They told him, you know, supposedly
from what he said that I had to do this and that I,
you know, my – if not, then I was going against
what was called insubordination.
***
Q. Okay, well, go ahead. If you could just describe to
the jury what was said in that phone conversation?
A. I asked Bob what was so important and why I had to
come and meet with him on this particular day at
this particular – you know, why I had to come and
do this. They said, Dan, what I want you to do is
gather all your materials. I want you to bring your
computer, your laptop, and I want you to come out
and meet me. We’ll pick a spot and we’ll meet. I
said this seems kind of unusual. You don’t need to
have all this material to go over hot lists that you’re
going to manage while I’m gone. And he said, Dan,
I need you to get all your – he wouldn’t tell me
basically what the reason was so I finally called and
said, Bob, it sounds to me like you’re firing me. Are
you terminating me, Bob? And he said, yes.
Q. Did he make any mention about any of the materials
or the computer that you had at your house?

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 11
A. Oh yeah. He said he wanted met you [sic] gather
my computer, any hot list, any company
information, anything at all that belonged to West he
wanted me to gather, put in my car and meet him.
Q. And did you – go ahead. Can you just describe the
end of the conversation? Did you agree to do that?
A. No. I told him that I was certain that being on
medical leave, I was not supposed to do that. It
would constitute work. And I asked him if, you
know, what was so important and why he had to do
this right now. I was simply going to be on leave for
another week, why don’t we just wait until the end
of the week and then I’d be back to work and we
could address whatever the reasons were then.
Q. What did he say?
A. He said no. He said, I want you to go and meet with
me. . . . And he said, well, you know, Dan if I have
to, I will come to your house. We’ll do this at your
house. I’m going to have to terminate you in front
of your own family. And I was concerned about
that. I have small kids.
When asked at trial whether it “would be a violation of the
policy . . . that West had, that you couldn’t ask an employee
to do work-related services during their leave,” Wolfe
responded, “If the leave were granted, yes.”
At trial, Arban described the final conversation that
occurred between himself and Wolfe on the evening of
January 6:
Q. Did the subject of resignation come up?
A. No, not at this point. What he said to me was, where
do you want to meet? I said, well Bob, I know for a
fact I’m not supposed to be going far. He said, no
12 Arban v. West Publishing Corp. Nos. 01-2278/2370
problem. I’ll come to you. Where would you like to
be? And I said I have no idea. He said, well, we’ve
met before at the Weber. Why don’t we use the
Weber. . . . I said Fine. I said, I’ll meet you there
and he said, Dan, you’ve got great reputation; you
know, employee file. He said, I were you, I’d be
worried about protecting that, being terminated. If
you wanted to come in and offer to me a letter of
resignation, I would probably accept it at that point.
On January 6, Nicolini forwarded an e-mail from Wolfe
regarding Arban to Colantino. In the e-mail, Nicolini stated,
“Below are the main issues we have regarding Dan Arban.”
Wolfe’s e-mail, which had been created earlier that same day,
began by stating, “You wanted an outline of events to
consider in terminating Dan Arban.” The e-mail went on to
describe the allegations against Arban, including
“misrepresentation concerning a new firm being started,” the
addition of “products to a signed contract,” double billing of
a customer’s account, the unsolicited sending of materials to
customers, and the “misrepresentation of when the trial period
would start” with respect to another client. At trial, Colantino
testified that he had no idea why Nicolini had sent him this e-
mail. Colantino also stated that the decision to terminate
Arban had been made before he received the e-mail. On
January 8, Arban prepared a letter of resignation, met Nicolini
and Wolfe, and handed his letter to Wolfe, who read it and
accepted it.
On July 14, 1999, Arban filed this lawsuit against West. In
October and November 2000, the case was tried before a jury.
West timely moved for judgment as a matter of law at the
close of all the evidence, which the district court denied after
the jury returned a verdict in favor of plaintiff in the amount
of $119,000. On March 2, 2001, the district court entered
judgment in favor of Arban in the amount of $119,000 plus
$11,448.88 in interest, $85,656.73 in attorney’s fees, and
$8,961.87 in costs. The district court declined to award front
pay or liquidated damages. On August 23, 2001, the district

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court denied West’s renewed motion for judgment as a matter
of law or new trial. On September 17, 2001, West filed its
notice of appeal. On September 27, 2001, Arban filed his
notice of appeal.
II.
This court reviews de novo a district court’s denial of a
motion for judgment as a matter of law. Monday v. Oullette,
118 F.3d 1099, 1101 (6th Cir. 1997). This court does not
weigh the evidence, evaluate the credibility of witnesses, or
substitute its judgment for that of the jury. Instead, this court
views the evidence in the light most favorable to the party
against whom the motion is made and gives that party the
benefit of all reasonable inferences. The motion should be
granted, and the district court’s decision reversed, only if
reasonable minds could not come to a conclusion other than
one in favor of the movant. Wehr v. Ryan’s Family Steak
Houses, Inc., 49 F.3d 1150, 1152 (6th Cir. 1995).
The FMLA entitles an eligible employee to as many as
twelve weeks of leave during any twelve-month period if the
employee has a “serious health condition that makes the
employee unable to perform the functions of the position of
such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious
health condition” is defined as “an illness, injury, impairment,
or physical or mental condition that involves (A) inpatient
care in a hospital, hospice, or residential medical care facility;
or (B) continuing treatment by a health care provider.” Id. at
§ 2611(11). An employee need not specifically mention the
FMLA when taking leave. All the employee must do is notify
the employer that FMLA-qualifying leave is needed. 29
C.F.R. § 825.303(b).
Two distinct theories for recovery on FMLA claims exist.
The “entitlement” or “interference” theory arises from
§ 2615(a)(1), which states that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided in this subchapter,”
14 Arban v. West Publishing Corp. Nos. 01-2278/2370
and from § 2614(a)(1), which provides that “any eligible
employee who takes leave . . . shall be entitled, on return from
such leave (A) to be restored by the employer to the position
of employment held by the employee when the leave
commenced; or (B) to be restored to an equivalent position.”
The “retaliation” or “discrimination” theory arises from
§ 2615(a)(2), which provides that “[i]t shall be unlawful for
any employer to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by this subchapter.”
The “entitlement” or “interference” theory is derived from
the FMLA’s creation of substantive rights. If an employer
interferes with the FMLA-created right to medical leave or to
reinstatement following the leave, a violation has occurred.
King v. Preferred Technical Group, 166 F.3d 887, 891 (7th
Cir. 1999).
The issue is simply whether the employer provided its
employee the entitlements set forth in the FMLA– for
example, a twelve-week leave or reinstatement after
taking a medical leave. Because the issue is the right to
an entitlement, the employee is due the benefit if the
statutory requirements are satisfied, regardless of the
intent of the employer.
Hodgens v. General Dynamics Corp., 144 F.3d 151, 159 (1st
Cir. 1998).
The substantive right to reinstatement provided in
§ 2614(a)(1), however, “shall [not] be construed to entitle any
restored employee to . . . any right, benefit, or position of
employment other than any right, benefit or position to which
the employee would have been entitled had the employee not
taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Similarly, the
right to non-interference with medical leave also is not
absolute. “[A]n employee who requests FMLA leave would
have no greater protection against his or her employment
being terminated for reasons not related to his or her FMLA

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request than he or she did before submitting that request.”
Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th
Cir. 1998). An employee lawfully may be dismissed,
preventing him from exercising his statutory rights to FMLA
leave or reinstatement, but only if the dismissal would have
occurred regardless of the employee’s request for or taking of
FMLA leave. Id.
At trial, Arban argued that West denied him his substantive
right to reinstatement and interfered with his substantive right
to take FMLA leave. First, with respect to Arban’s
reinstatement claim, Arban “must establish, by a
preponderance of the evidence, that he is entitled to the
benefit he claims.” Rice v. Sunrise Express, 209 F.3d 1008,
1018 (7th Cir. 2000).
[I]f the employer claims that the employee would have
been discharged . . . the employee, in order to establish
the entitlement protected by § 2614(a)(1), must, in the
course of establishing the right, convince the trier of fact
that the contrary evidence submitted by the employer is
insufficient and that the employee would not have been
discharged . . . if he had not taken FMLA leave.
Id. Here, West presented considerable evidence that the
decision to terminate Arban had been made before Arban
went on medical leave, but that his actual termination had
been deferred until after the holidays. While an employer has
the discretion to fire an at-will employee for poor
performance, at trial Arban cast doubt upon both the timing
of and the reasons for the decision to terminate him. For
example, the December 17 e-mail from Wolfe to Colantino
suggests that no final decision had been reached. In that e-
mail, Wolfe states: “I welcome any and all feedback from my
fellow Managers to see if I have missed any major elements
that would allow Dan to continue. . . . If I have not been open
minded to an alternative that I should consider, please let me
know.” Arban also testified that following the “field ride” on
December 21, Wolfe told Arban that he was “very satisfied.”
16 Arban v. West Publishing Corp. Nos. 01-2278/2370
The “Field Ride Recap” prepared after the ride also stated that
Arban “meets expectations” in all areas. In addition, the jury
considered an e-mail from Wolfe that Nicolini had forwarded
to Colantino on January 6, which stated, “You wanted an
outline of events to consider in terminating Dan Arban.”
(emphasis added). While this e-mail is open to several
interpretations, the jury was entitled to conclude that West
was continuing to study the matter and had not come to a final
decision by January 6. As the Seventh Circuit has observed,
“the timing of this decision could lead a fact finder to infer
that the employee would not have been fired absent her taking
of leave (if, for example, a supervisor who had been aware of
problems with an employee did not decide to fire the
employee until she took leave, and the supervisor based the
firing on the incidents of which the employer had already
been aware).” Kohls v. Beverly Enters. Wisconsin, Inc., 259
F.3d 799, 806 (7th Cir. 2001). In this case, while the
evidence permitted differing inferences, sufficient evidence
was presented at trial for the jury to conclude that West
denied Arban his substantive right to reinstatement.
Next, with regard to his interference claim, the jury was
entitled to find in Arban’s favor if he presented sufficient
evidence to establish that he was denied his substantive rights
under the FMLA “for a reason connected with his FMLA
leave.” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d
955, 961 (10th Cir. 2002). “Such a reason need not be
retaliation.” Id.; see also Miller v. Defiance Metal Prods.,
Inc., 989 F.Supp. 945, 946 (N.D. Ohio 1997) (noting that
plaintiff’s termination due to absenteeism caused by a
medical condition constituted “an interference under
FMLA”). Twenty-nine C.F.R. § 825.220(b) also explains
that “interfering with” the exercise of an employee’s rights
under the FMLA includes “discouraging an employee from
using [FMLA] leave.”
West argues that “it is undisputed that West promptly
granted Arban’s request for leave without any further
questions” and that Arban’s “allegations are, therefore,

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 17
insufficient to state a claim for interference.” As support for
this proposition, West cites Dodgens v. Kent Mfg. Co., 955
F.Supp. 560, 564 (D.S.C. 1997). In Dodgens, the court found
that a plaintiff employee’s claim that his FMLA rights were
“interfered with” when a plant manager called him twice
during his medical leave and requested that he take a
demotion was not cognizable under the FMLA. West’s
reliance on Dodgens is misplaced. Unlike the plaintiff in
Dodgens, who was not asked to work while on medical leave
but rather to accept a demotion upon returning to work, Arban
presented evidence that he was asked to continue to perform
work-related tasks while ostensibly on medical leave. Arban
testified that after notifying Wolfe of his medical leave on
December 28, Wolfe called him on several occasions and
requested that he provide customer lists and pending sales.
Moreover, Arban stated that during a January 6 conversation
with Wolfe, he explained that he could not meet with Wolfe
because he was on medical leave, to which Wolfe responded
that “he’s going to call [West’s disability insurance carrier]
and verify or check whether or not” Arban could meet with
him. Shortly thereafter, Wolfe called Arban and told him that
he had spoken with West’s disability insurance carrier, which
had “told him, you know, supposedly, from what he said that
I had to do this [meet with Wolfe].” Arban then asked him
whether he was being fired, and Wolfe responded that he was.
In light of this evidence, the jury was entitled to conclude that
Arban was terminated for reasons related to his FMLA leave.
As previously mentioned, in addition to the substantive
guarantees provided by the act, the FMLA also affords
employees protection in the event they suffer retaliation or
discrimination for exercising their rights under the FMLA.
Specifically, “[a]n employer is prohibited from discriminating
against employees . . . who have used FMLA leave,” nor can
they “use the taking of FMLA leave as a negative factor in
employment actions.” 29 C.F.R. § 825.220(c). This
prohibition includes retaliatory discharge for taking leave.
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314
(6th Cir. 2001). These protections have been described as
18 Arban v. West Publishing Corp. Nos. 01-2278/2370
proscriptive in nature. Hodgens, 144 F.3d at 160. If the
employer is found to have retaliated against the employee for
using FMLA leave, the employer is subject to a claim for
compensatory damages and, unless the court finds the
violation occurred in good faith, additional liquidated
damages. 29 U.S.C. § 2617(a)(1)(A).
With regard to Arban’s retaliatory discharge claim, there
was sufficient evidence to support the jury’s conclusion that
West retaliated against Arban for taking leave under the
FMLA. At trial, Arban testified that during the December 21
field ride Wolfe stated that he was “very satisfied” with
Arban’s performance. The “Field Ride Recap” prepared by
Wolfe also stated that Arban “meets expectations in all
areas.” West does not dispute that after the field ride, Arban
engaged in protected activity by taking leave pursuant to the
FMLA, nor does West dispute that its termination of Arban
qualifies as an adverse employment action. The evidence also
supports the jury’s finding of a causal link between Arban’s
participation in the protected activity (FMLA leave) and the
adverse employment action (his termination). Although
“temporal proximity is insufficient in and of itself to establish
that the employer’s nondiscriminatory reason for discharging
an employee was in fact pretextual,” Skrjanc, 272 F.3d at 317,
the jury weighed additional evidence, including evidence of
Arban’s performance appraisals and the demeanor of
witnesses on the stand. Moreover, as previously discussed,
Arban testified that after notifying Wolfe that he had taken
medical leave, Wolfe repeatedly called Arban at home “to get
different accounts and pending sales he could work with.”
Arban stated that Wolfe had indicated that “there was a lot on
the line for Jim Colantino and the exclusive users” and that
“[p]eople could win certain prizes and he wanted to make sure
that everybody got as much as they could.” Arban also
explained that when he told Wolfe that he “wasn’t supposed
to be doing any work,” Wolfe responded with anger. Arban
added that Wolfe described Arban’s failure to assist him as
“insubordination.” Although West argues that “Arban
changed his story so that it appears that Wolfe was upset that

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 19
he would not work or meet with him during his leave,” as
previously explained, the jury is in a better position to judge
witness credibility than the appellate court. The record thus
contains evidence that supports the jury’s finding that West’s
explanation for Arban’s termination was disingenuous and
that the real reason was the taking of FMLA leave.
III.
A district court’s disposition of a motion for a new trial is
reviewed for an abuse of discretion. Workman v. Frito-Lay,
Inc., 165 F.3d 460, 467 n. 7 (6th Cir. 1999). This court has
defined an abuse of discretion as a “definite and firm
conviction that the trial court committed a clear error of
judgment.” Cincinnati Ins. Co. v. Byers, 151 F.3d 574,
578-79 (6th Cir. 1998) (quotation omitted).
West argues that it is entitled to a new trial “based upon
critical errors in the jury instructions and the verdict form.”
Specifically, West argues that “the jury was not given any
guidance whatsoever regarding what constitutes ‘interference’
under the FMLA.” West contends that the jury improperly
could have found it guilty of “interference” while at the same
time “rejecting Plaintiff’s arguments that he was fired
because of his leave.”
This court reviews jury instructions as a whole to determine
whether they fairly and adequately submitted the issues and
applicable law to the jury. Jones v. Federated Fin. Reserve
Corp., 144 F.3d 961, 966 (6th Cir. 1998). A party is not
entitled to a new trial based upon alleged deficiencies in the
jury instructions unless the instructions, taken as a whole, are
misleading or give an inadequate understanding of the law.
Id. Here, the district court’s instructions to the jury state, in
relevant part:
Under the Family and Medical Leave Act it is unlawful
for any employer to interfere with, restrain or deny the
exercise of or the attempt to exercise any right under the
20 Arban v. West Publishing Corp. Nos. 01-2278/2370
Family and Medical Leave Act. It is also unlawful under
the Family and Medical Leave Act for an employer to
discharge or in any other manner discriminate against
any other individual for opposing any practice made
lawful by the Family and Medical Leave Act.
***
In order for Plaintiff to prove that West discriminated or
retaliated against him because he took leave, Plaintiff
must establish the following evidence by a
preponderance of the evidence.
(1) he engaged in an activity protected by the Act;
(2) that this exercise of his protected rights was known
to the defendant;
(3) that defendant thereafter took an employment action
adverse to the plaintiff; and
(4) that there was a causal connection between the
protected activity and the adverse employment
action.
To show such a causal connection [between the protected
activity and the adverse employment action], Plaintiff
must show that the reasons given for his termination
were not the true reasons, and that the true reason for his
termination was that he took a medical leave.
In this case, West claims that Plaintiff was not terminated
because of his leave, but because of misconduct. In order
to prevail on his retaliation claim, Plaintiff must also
prove, by a preponderance of the evidence, that West’s
stated reason for discharging Plaintiff is not the true
reason, but merely a pretext for retaliation, which means
that the true reasons for his termination were not the
reasons stated by West, but that Plaintiff took a medical
leave.
***

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 21
However, the plaintiff must prove by a preponderance of
the evidence that he would not have been discharged had
he not taken Family and Medical Leave Act leave.
Upon examination of the jury instructions, West’s
arguments lack merit. The trial in this matter was bifurcated,
and following the liability phase the jury answered “yes” to
the following question: “Did defendant West Publishing
Corporation violate plaintiff Daniel Arban’s rights under the
Family and Medical Leave Act?” This court must presume
that the jury followed the district court’s instructions. Weeks
v. Angelone, 528 U.S. 225, 234 (2000). As previously
discussed, Arban presented evidence sufficient for the jury to
find in his favor under an interference theory premised upon
the denial of his substantive rights under the FMLA “for a
reason connected with his FMLA leave.” Diffee
Ford-Lincoln-Mercury, Inc., 298 F.3d at 961. The foregoing
instructions ensured that the jury could not find West liable or
award any damages unless it found that West discharged
Arban for taking medical leave – a finding that also would
support Arban’s interference claim. Since the instructions,
taken as a whole, indicate that the jury was required to find
that the “true reason for [Arban’s] termination was that he
took a medical leave,” no error has been demonstrated.
IV.
Under the FMLA, a prevailing plaintiff is entitled to receive
damages in the amount of “any wages, salary, employment
benefits, or other compensation denied or lost to such
employee” as a result of the adverse employment action. 29
U.S.C. § 2617(a)(1)(A)(i)(I). The FMLA also provides that
“the employer . . . shall be liable . . . for equitable relief as
may be appropriate.” 29 U.S.C. § 2617(a)(1)(B). In this
case, the district court declined to submit the issue of front
pay to the jury, concluding that the FMLA “does not provide
for a remedy of front pay” and adding that “there is in this
case insufficient evidence for the question of front pay.”
Arban now argues that the district court erred “by ruling that
22 Arban v. West Publishing Corp. Nos. 01-2278/2370
1In an unpublished decision concerning an FMLA claim, this court
previously has held that “[t]he appropriateness of reinstatement and front
pay, as equitable remedies, are within the discretion of the district court.”
Taylor v. Invacare Corp., 64 Fed. Appx. 516, 523, 2003 WL 21212674,
at *6 (6th Cir. May 21 , 2003).
the FMLA cannot allow a recovery of front pay, and by not
properly considering an award of front pay to Mr. Arban, at
least as an alternative to reinstatement.”
The issue of whether front pay is available under the FMLA
is a question of law that this court reviews de novo. See
Gottfried v. Med. Planning Serv., 280 F.3d 684, 690 (6th Cir.
2002). Although this circuit has not directly considered this
question,1 other circuits have found that front pay is an
equitable remedy available under the FMLA, as have at least
two district courts in this circuit. See, e.g., Diffee Ford-
Lincoln-Mercury, Inc., 298 F.3d at 965; see also Nichols v.
Ashland Hosp. Corp., 251 F.3d 496, 503-504 (4th Cir. 2001);
Churchill v. Star Enters.,183 F.3d 184, 193 (3d Cir. 1999);
Rogers v. AC Humko Corp., 56 F.Supp.2d 972, 978 (W.D.
Tenn. 1999); Bryant v. Delbar Products, Inc., 18 F.Supp.2d
799, 810 (M.D. Tenn. 1998). Neither the district court nor
West cites any cases to the contrary. Instead, West argues
that “the plain language of the statute does not contemplate
any future damages as an available remedy under the FMLA,
because the language clearly identifies damages in the past
tense.” However, West focuses solely upon the language of
29 U.S.C. § 2617(a)(1)(A)(i)(I) and ignores the language of
29 U.S.C. § 2617(a)(1)(B), which provides for equitable
remedies. Although West adds that the legislative history
does not contain “any discussion of, or even reference to, the
availability of front pay or future damages under the FMLA,”
West has not identified any explicit prohibition against front
pay. In light of these authorities and the FMLA’s provision
for equitable remedies, we find that the FMLA provides for
front pay.

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 23
While the determination of the precise “amount of an award
of front pay is a jury question,” the initial “determination of
the propriety of an award of front pay is a matter for the
court.” Roush v. KFC Nat’l Mgmt. Co., 10 F.3d 392, 398 (6th
Cir. 1993) (ADEA claim). This court reviews the district
court’s conclusions regarding the propriety of an award of
front pay for an abuse of discretion. See Simpson v. Ernst &
Young, 100 F.3d 436, 444 (6th Cir. 1996) (ERISA claim) (“A
decision to submit the issue of front pay to the jury is
committed to the sound discretion of the trial court and is
reviewed on appeal for abuse of discretion.”).
Although “[r]einstatement is the presumptively favored
equitable remedy,” it is not appropriate “where the plaintiff
has found other work.” Roush, 10 F.3d at 398. In this case,
Arban testified that he accepted an offer to serve as a field
sales representative for Matthew Bender, a legal publishing
company, in July or August of 1999. The fact that
reinstatement is inappropriate, however, does not mean that
an award of front pay is required. “No per se rule governs the
appropriateness of front pay damages in a particular case. . . .
Ultimately, the question to be answered is whether front pay
damages are needed in a particular case to make the plaintiff
whole.” Wilson v. Int’l Bro. of Teamsters, 83 F.3d 747,
756-57 (6th Cir. 1996). Several factors must be considered
when determining the propriety of an award of front pay,
including “an employee’s duty to mitigate, the availability of
employment opportunities, the period within which one by
reasonable efforts may be re-employed, the employee’s work
and life expectancy, the discount tables to determine the
present value of future damages and other factors that are
pertinent on prospective damage awards.” Roush, 10 F.3d at
399 (quoting Shore v. Federal Express Corp., 777 F.2d 1155,
1160 (6th Cir. 1985)).
In this case, the district court refused to submit the issue of
front pay to the jury, stating:
24 Arban v. West Publishing Corp. Nos. 01-2278/2370
Number two is the Court believes that there is in this case
insufficient evidence for the question of front pay even if
it were allowed to go to the jury for the following
reasons: Number one, is there has been really – the
proofs here are that in terms of loss wages, loss
opportunity, and so forth, that there’s just not enough
evidence to go – especially on what he has made, and I
understand that part of it had to do with the law school
and so forth, but still based upon his mitigation of
damages which he has none, there is no reason that a
reasonable jury could believe that there’s going to be
front pay, number one.
A review of the evidence presented at trial indicates that the
district court’s decision was not an abuse of discretion. Arban
testified that after accepting employment with Matthew
Bender in July or August of 1999, his compensation was
$45,000. Arban also explained that in 2000, he became a
field sales manager, a position that he agreed was “similar to
the field sales manager position [he] had with West dating
back to 1997.” Through the first eleven months of 2000,
Arban had earned $185,000, $100,000 of which was
attributable to the opening of a new law school in his area.
Arban’s earnings as an employee of West in 1998, by
contrast, were $169,412. Consequently, Arban has shown no
damages warranting an award of front pay.
Arban argues that “[a] comparison of the earned wages in
1998 to the earned wages in 2000 clearly is not proper or
relevant in the determination of Mr. Arban’s front pay” and
that “a legitimate comparison for calculating front pay is the
amount Mr. Arban would have earned and the amount Mr.
Arban was earning.” Arban, however, did not provide
evidence by which the jury could make what he claims would
be a more accurate estimate of his earnings. “A plaintiff who
seeks an award of front pay must provide the district court
with the essential data necessary to calculate a reasonably
certain front pay award.” Bruso v. United Airlines, Inc., 239
F.3d 848, 862 (7th Cir. 2001); see also Tyler v. Union Oil Co.

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 25
of Cal., 304 F.3d 379, 402 (5th Cir. 2002) (affirming district
court’s denial of front pay where an award would be “purely
speculative”). At trial, William King, Arban’s economic
expert, testified as follows:
Q. Did you come up with a number for front pay,
taking the October 30 date and going forward?
A. Certainly.
Q. And what number did you come up with for that?
A. One Million, Eight Hundred and Eighty-Seven
Thousand, Three Hundred Eighty-Four Dollars.
Q. Now–
THE COURT: Hang on. Front pay is what Mr.
Arban told you? You didn’t do
any research or anything else?
It’s what he said that he thinks he
could make or not make?
THE WITNESS: Well, it’s based on that and the
Social Security Wage Index.
THE COURT: But it’s all based on what he hold
you?
THE WITNESS: Yes. The two years at the twenty
percent, and then the Social
Security Wage Index.
THE COURT: But all you did was take the
Social Security formula and add it
to what he told you–
THE WITNESS: Correct.
26 Arban v. West Publishing Corp. Nos. 01-2278/2370
THE COURT: – he thinks he could have made
somewhere else?
THE WITNESS: Well, he had said he was going to
go up thirty percent a year, and I
would do so–
THE COURT: But it’s all based on what he told
you?
THE WITNESS: Yes.
Arban’s evidence regarding front pay was purely speculative.
On the evidence before it, the district court thus did not abuse
its discretion in declining to submit the issue of front pay to
the jury.
V.
Arban contends that the district court erred in failing to
award liquidated damages under the FMLA. The FMLA
provides that a court shall award liquidated damages equal to
the damages due to lost compensation plus interest. 29
U.S.C. § 2617(a)(iii). However, if an employer proves that it
acted “in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a
violation” of the FMLA, the court may reduce the damages.
Id.
The FMLA does not explicitly define the term “good faith.”
However, this court previously has turned to the Fair Labor
Standards Act (FLSA), which contains similar remedial
provisions, for guidance in interpreting the FMLA. Both the
FMLA and the FLSA provide that an employer “shall” be
liable for damages and liquidated damages and that the
district court “may” reduce the amount of liquidated damages
if good faith is established. See 29 U.S.C. § 216(b)
(providing damages under FLSA); id. at § 260 (providing
good faith defense to liquidated damages under FLSA); id. at

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 27
§ 2617(a) (FMLA). “[T]he legislative history of the FMLA
reveals that Congress intended the remedial provisions of the
FMLA to mirror those in the FLSA.” Frizzell, 154 F.3d at
644 (citing S. Rep. No. 103-3, at 35 (1993), reprinted in 1993
U.S.C.C.A.N. 3, 37 (“[The FMLA’s] enforcement scheme is
modeled on the enforcement scheme of the FLSA. . . . The
relief provided in FMLA also parallels the provisions of the
FLSA.”)).
Under the FLSA, a district court may not exercise its
discretionary authority to reduce or eliminate a liquidated
damages award unless the employer first sustains its burden
of proving that its “failure to obey the statute was both in
good faith and predicated upon such reasonable grounds that
it would be unfair to impose upon it more than a
compensatory verdict.” Elwell v. Univ. Hosps. Home Care
Servs., 276 F.3d 832, 840 (6th Cir. 2002) (quotation omitted)
(FLSA context). This court thus must consider whether West
sustained its burden. “Although in the final analysis, we
review a district court’s decision on liquidated damages for
abuse of discretion, that discretion must be exercised
consistently with the strong presumption under the statute in
favor of doubling.” Elwell, 276 F.3d at 840 (quotation
omitted).
The district court found that West acted in good faith
because “they made their decision even before the medical
leave was – the Family Medical Leave Act request was even
put in. They wanted to delay it because of the holidays.”
However, as previously noted, the district court’s instructions
to the jury specifically state:
To show such a causal connection [between the protected
activity and the adverse employment action], Plaintiff
must show that the reasons given for his termination
were not the true reasons, and that the true reason for his
termination was that he took a medical leave.
28 Arban v. West Publishing Corp. Nos. 01-2278/2370
In this case, West claims that Plaintiff was not terminated
because of his leave, but because of misconduct. In order
to prevail on his retaliation claim, Plaintiff must also
prove, by a preponderance of the evidence, that West’s
stated reason for discharging Plaintiff is not the true
reason, but merely a pretext for retaliation, which means
that the true reasons for his termination were not the
reasons stated by West, but that Plaintiff took a medical
leave.
As previously noted, this court presumes that the jury
followed the district court’s instructions. Weeks, 528 U.S. at
234. In finding in favor of Arban, the jury thus necessarily
found that West made its decision because Arban “took a
medical leave,” not because of Arban’s misconduct. “[W]hen
legal and equitable issues to be decided in the same case
depend on common determinations of fact, such questions of
fact are submitted to the jury, and the court in resolving the
equitable issues is then bound by the jury’s findings on
them.” Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d at 965.
In this case, the district court disregarded the jury’s finding –
that West’s decision to fire Arban was a result of his medical
leave and not his misconduct – in considering the liquidated
damages issue. Instead, the district court made its own
contrary finding, which served as the basis for its denial of
liquidated damages. This was error. The district court thus
abused its discretion when it denied Arban liquidated
damages.
VI.
In its April 26, 2001, order, the district court granted
West’s motion for stay of execution of the judgment “pending
the disposition of post-trial motions and, if necessary, during
appeal.” Arban now argues that for West to obtain a stay of
execution of the judgment, West must give a supersedeas
bond pursuant to Fed. R. Civ. P. 62(d). This court reviews a
district court’s denial of a supersedeas bond for an abuse of

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Nos. 01-2278/2370 Arban v. West Publishing Corp. 29
discretion. Kennedy v. Uniroyal Pension Plan, 937 F.2d 608,
1991 WL 134613, at **8 (6th Cir. 1991) (unpublished).
Rule 62(d) entitles a party who files a satisfactory
supersedeas bond to a stay of money judgment as a matter of
right. Federal Prescription Serv., Inc. v. Am. Pharm. Ass’n,
636 F.2d 755, 759 (D.C. Cir. 1980) (citing Am. Mfr. Mut. Ins.
Co. v. Am. Broad. Paramount Theatres, Inc., 385 U.S. 931
(1966)). However, “the Rule in no way necessarily implies
that filing a bond is the only way to obtain a stay. It speaks
only to stays granted as a matter of right, it does not speak to
stays granted by the court in accordance with its discretion.”
Id. Arban claims that West must make “at least a showing
that it has adequate resources to satisfy the bond.” West has
done so here. At the hearing on West’s motion for stay
without bond on April 25, 2001, counsel for West stated that
“the revenues of the group of which West is a part is
approximately 2.5 billion.” The Seventh Circuit has noted
that “an inflexible requirement of a bond would be
inappropriate . . . where the defendant’s ability to pay the
judgment is so plain that the cost of the bond would be a
waste of money.” Olympia Equip. Leasing Co. v. Western
Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986). In light of
the vast disparity between the amount of the judgment in this
case and the annual revenue of the group of which West is a
part, the district court’s decision to grant a stay without a
bond was not an abuse of discretion.
VII.
For all of the foregoing reasons, we affirm the district
court’s denial of West’s motion for judgment as a matter of
law or for a new trial, reverse and remand the trial court’s
denial of an award of liquidated damages, affirm the district
court’s denial of Arban’s claim for front pay, and affirm the
district court’s grant of a stay without bond.

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