and 09-1779 MELISSA BROWN v. Nutrition Management Services Co.

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 08-3840 and 09-1779
MELISSA BROWN
v.
NUTRITION MANAGEMENT SERVICES CO.; NEW
COURTLAND ELDER SERVICES; SCOTT MURRAY;
KAREN ZYWALEWSKI
Nutrition Management Services Co.
Appellant in No. 08-3840
Melissa Brown
Appellant in No. 09-1779
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-06-cv-02034)
District Judge: Hon. Norma L. Shapiro
Argued December 2, 2009
BEFORE: FISHER, HARDIMAN and STAPLETON,
Circuit Judges
(Opinion Filed: March 17, 2010)

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2
Alan B. Epstein (Argued)
Spector, Gadon & Rosen
1635 Market Street - 7th Floor
Philadelphia, PA 19103
Counsel for Appellant/Cross Appellee
Elliot B. Platt (Argued)
Two Penn Center Plaza - Suite 1930
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Counsel for Appellee/Cross Appellant
OPINION OF THE COURT
STAPLETON, Circuit Judge:
This appeal arises out of appellee and cross-appellant Melissa Brown’s lawsuit
against appellant and cross-appellee Nutrition Management Services Co. (“NMS”) and
two of its employees alleging violations of the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. § 2601, et seq., Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act (“PHRA”),
43 Pa. Cons. Stat. Ann. § 951, et seq. Brown’s claims were tried to a jury twice. After
the second trial, the District Court entered judgment in favor of Brown against NMS and
subsequently entered orders awarding Brown back pay, liquidated damages, and
attorney’s fees, but denying her motion for front pay. NMS appeals several of the Court’s

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Brown settled with New Courtland Elder Services before trial.1
3
orders, and Brown cross-appeals the orders denying her motion for front pay and reducing
the amount of attorney’s fees she requested.
Because we write only for the benefit of the parties, we assume familiarity with the
facts of this civil action and the proceedings in the District Court. We will affirm in part,
reverse in part, and remand for further proceedings.
I. Factual Background
The basic facts of this appeal are undisputed. In 2002, Brown began working as
the food service director at Plymouth House, a nursing home. After Plymouth House was
purchased by a new owner in 2004, NMS was hired to provide food service there. In
August 2004, Brown was hired by NMS to continue working in her position at Plymouth
House. Around that time, Brown informed several NMS employees that she was
pregnant and would need time off from work to give birth to her child. Approximately
two months later, Brown met with her supervisor, Karen Zywalewski, and NMS’s Human
Resources Manager, Scott Murray. NMS terminated Brown at that meeting.
Brown filed a complaint in the Eastern District of Pennsylvania alleging that NMS,
Zywalewski, Murray, and New Courtland Elder Services interfered with her right to take1
leave in violation of the FMLA, discriminated against her on the basis of her pregnancy

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The PHRA claim was dismissed by the District Court, and the dismissal was not2
appealed.
4
and sex in violation of Title VII, and discriminated against her on the basis of her
pregnancy and sex in violation of the PHRA.2
A jury trial on the FMLA and Title VII claims commenced in January of 2008. At
the conclusion of the trial, the jury returned a verdict, finding NMS and Zywalewski
liable for violating the FMLA, but not Title VII, and awarding Brown $275,000 in
compensatory and punitive damages, but no back or front pay. The District Court entered
judgment in favor of Brown in the amount of $1 against NMS and Zywalewski and then
sua sponte ordered a new trial. The second jury found defendant NMS liable for violating
the FMLA, but found no liability under Title VII, and found no liability on the part of
Zywalewski or Murray. The jury awarded Brown $74,000 in back pay and omitted any
award for front pay. The Court then awarded Brown liquidated damages, attorney’s fees,
and costs, but denied Brown’s motion for front pay. NMS filed a timely notice of appeal,
and Brown cross-appealed. On appeal, NMS argues that the Court erred by: 1) granting
judgment in favor of Brown after the first trial and ordering a new trial sua sponte, 2)
failing to charge the jury with an instruction explaining NMS’s affirmative defense to the
FMLA claim and failing to include a question about the affirmative defense in the jury
interrogatory, 3) awarding liquidated damages to Brown, and 4) awarding attorney’s fees
to Brown. In her cross-appeal, Brown contends that the District Court erred by refusing
to award front pay to her and reducing the amount of attorney’s fees she requested.

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Although this Court has not so held, the parties’ conclusion is supported by the3
statutory text of the FMLA, see 29 U.S.C. § 2617(a), and the decisions of our sister courts
of appeals. See, e.g., Farrell v. Tri-Country Metro Transp. Dist of Or., 530 F.3d 1023,
1025 (9th Cir. 2008); Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1007-08
5
II. Ordering A New Trial
First, NMS argues that the District Court erred by sua sponte ordering a new trial
after the jury returned its verdict in the first trial. Rule 59(d) permits a trial court to order
a new trial “for any reason that would justify granting one on a party’s motion.” Fed. R.
Civ. P. 59(d). A new trial may be granted “when the verdict is contrary to the great
weight of the evidence; that is where a miscarriage of justice would result if the verdict
were to stand” or when the court believes the verdict results from jury confusion. Pryer
v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 2001) (internal quotations and citations
omitted) (miscarriage of justice); Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729
F.2d 1530, 1538 (5th Cir. 1984) (jury confusion). We review a district court’s decision to
grant a new trial for abuse of discretion. William A. Graham Co. v. Haughey, 568 F.3d
425, 437 (3d Cir. 2009).
As discussed above, the jury found NMS and Zywalewski liable under the FMLA,
but not under Title VII. In response to specific questions on the verdict form, the jury
awarded Brown “$0” damages for back pay, and “$0” in front pay, but awarded her
$50,000 in compensatory damages for “past and future pain, suffering, or emotional
distress” and $225,000 in punitive damages — damages that the parties agreed were not
recoverable under the FMLA. See 29 U.S.C. § 2617. In response to this verdict, the3

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(6th Cir. 2005).
6
District Court entered judgment in favor of Brown in the amount of $1.00 and then sua
sponte ordered a new trial. The Court explained that it ordered a new trial because:
“1) manifest injustice would result if the verdict were allowed to stand; 2) there was
apparent jury confusion; 3) the jury form was flawed; and 4) the verdict was
inconsistent.” [A 91] During a hearing on the subsequent motion to reconsider, the
District Court gave a further explanation, stating, “I believe the verdict was against the
weight of the evidence . . . I feel that, as a result of how I crafted the interrogatories,
inadvertently there was juror confusion that resulted in manifest injustice or universal
injustice . . . .” [SA 41]
We conclude that the District Court did not err by ordering a new trial. Instead,
the Court acted within its considerable discretion when it ordered the new trial after
concluding that the verdict resulted from confusion because the jury instructions and the
verdict form may have misled the jury into believing that compensatory and punitive
damages were recoverable under the FMLA. Furthermore, the Court did not abuse its
discretion when it determined that manifest injustice would result if the verdict were
allowed to stand because the jury verdict was against the weight of the evidence.
Importantly, the jury found liability under the FMLA, but awarded no recoverable
damages under the FMLA even though the evidence established that Brown was
unemployed for several months and then took a lesser paying position after she was

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Because we conclude that the Court did not err by ordering a new trial, we need not4
decide whether the Court erred by entering a verdict in the amount of $1 in favor of
Brown after the first trial.
This argument was not waived because NMS presented a proposed jury instruction5
on the affirmative defense and objected to the Court’s decision not to give that instruction
at the charging conference.
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terminated from her position at Plymouth House. Because of this evidence, Brown was
entitled to back pay if the jury found, as it did, that NMS and Zywaleski violated the
FMLA by terminating her. For both of these reasons, the District Court did not abuse its
discretion by ordering a new trial.4
III. Failing to Charge on the Affirmative Defense
Next, NMS claims that the District Court abused its discretion when it refused to
instruct the jury on the affirmative defense to FMLA liability. NMS correctly argues that5
it was entitled to this instruction, as we have recognized that there is an affirmative
defense to an interference claim under the FMLA. See Sarnowski v. Air Brooke
Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007) (“[Plaintiff] will not prevail on his
interference claim if [his employer] can establish that it terminated [him] for a reason
unrelated to his intention to exercise his rights under the FMLA.”); see also 29 U.S.C.
§ 2614(a)(3)(B). Thus, NMS was entitled to an instruction that informed the jury that it
could not find NMS liable on the FMLA interference claim if NMS proved that it would
not have continued to employ Brown regardless of her request for FMLA leave.

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8
We review the jury instructions for abuse of discretion, evaluating “whether, taken
as a whole, the instruction properly apprised the jury of the issues and the applicable
law.” See Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir. 2009). “We
will not vacate a judgment if the errors in the charge are harmless.” Armstrong v.
Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 245–46 (3d Cir. 2006). Likewise, a district
court’s formulation of jury interrogatories is reviewed for abuse of discretion. Id. at 246.
“The only limitation [on this discretion] is that the questions asked of the jury be adequate
to determine the factual issues essential to the judgment.” Id. (internal quotations
omitted).
During the charge on FMLA liability, the Court instructed the jury that NMS could
legally terminate Brown, as long as it did not interfere with her FMLA leave by
terminating her because she was pregnant. The Court repeatedly admonished the jury that
it should not question NMS’s “business judgment.” Moreover, at some points during the
charge, the Court appeared to place the burden on Brown to prove that NMS fired her
because of the pregnancy, instead of requiring NMS to prove that it would have fired her
regardless of her request for leave related to her pregnancy. After a careful review of
these instructions, we conclude that, although the District Court erred by refusing to give
an instruction on the affirmative defense, the charge properly informed the jury of the
applicable law. Because NMS did not suffer any prejudice as a result of these
instructions, the error was harmless. See Armstrong, 438 F.3d at 246 (“Harmless errors in

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parts of a jury charge that do not prejudice the complaining party are not sufficient
grounds on which to vacate a judgment and order a new trial.”).
We also find no abuse of discretion in the District Court’s decision not to include a
question about the affirmative defense in the jury interrogatory. The jury was informed
that it could not find NMS liable under the FMLA unless it found Brown was terminated
because of her pregnancy. Thus, a positive answer to Interrogatory No. 2, which asked
whether Brown proved by a preponderance of the evidence that NMS interfered with her
rights under the FMLA, resolved any question as to whether the jury believed NMS had
terminated Brown for her poor performance. Accordingly, the questions asked were
“adequate to determine the factual issues essential to the judgment.” See id.
IV. Liquidated Damages
Third, NMS claims that the Court erred by awarding liquidated damages to Brown.
Section 2617 of the FMLA directs that “any employer who violates section 2615 of this
title shall be liable” to the employee for damages, including “an additional amount as
liquidated damages equal to the sum [of monetary damages and interest on those
damages].” 29 U.S.C. § 2617(a)(1)(A)(iii) (emphasis added). However, an employer
may avoid paying such damages “if [it] . . . proves to the satisfaction of the court that the
act or omission which violated section 2615 was in good faith and that the employer had
reasonable grounds for believing that the act or omission” was not a violation of that
section. Id. In such a case, the court has discretion to award only monetary damages and
interest. See id. Thus, we review a decision to grant liquidated damages under the abuse

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of discretion standard. See Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 908 (3d
Cir. 1991) (addressing liquidated damages claim under the Fair Labor Standards Act); see
also 29 U.S.C. § 2617(a)(1)(A)(iii) (stating that the decision not to award liquidated
damages is within “the discretion of the court”); Chandler v. Specialty Tires of Am., Inc.,
283 F.3d 818, 827 (6th Cir. 2002) (reviewing determination of liquidated damages under
the FMLA according to the standard applicable to FLSA claims because “the remedial
provisions of the FMLA mirror those of the [FLSA]”).
The District Court determined that NMS did not meet its burden of proving that it
terminated Brown in good faith or that it had reasonable grounds for believing it did not
violate the FMLA, and we find no error in its analysis. The Court based its decision in
part on its observation that the “witnesses involved in Brown’s termination offered
conflicting testimony . . . regarding [NMS’s] decision and justification for terminating
Brown.” [A 99] The Court also concluded that NMS did not have reasonable grounds
for believing it was not violating the FMLA because it failed to take any affirmative steps
to determine whether Brown was an eligible employee under the FMLA. Accordingly,
the District Court did not abuse its discretion by awarding liquidated damages to Brown.
V. Attorney’s Fees
Lastly, NMS contends that the District Court erred when it awarded attorney’s fees
to Brown, arguing that the lodestar amount should have been reduced because Brown’s
attorney’s time records were vague and insufficient and because of Brown’s lack of
success in the civil action. We review a district court’s award of attorney’s fees under the

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abuse of discretion standard. In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 256 (3d
Cir. 2009).
On the first issue, the District Court concluded that Brown’s attorney’s time
records were sufficient under our decision in Rode v. Dellarciprete, 892 F.2d 1177, 1190
(3d Cir. 1990). We agree. In Rode, we stated that “[a] fee petition is required to be
specific enough to allow the district court ‘to determine if the hours claimed are
unreasonable for the work performed.’” Id. (quoting Pawlak v. Greenawalt, 713 F.2d
972, 978 (3d Cir. 1983). Here, the time records included the date, a description of the
activity, and the time expended. The District Court found that these records were specific
enough for it to evaluate whether the attorney’s time was reasonably expended.
Accordingly, the District Court did not abuse its discretion by awarding the hours that
NMS disputed on specificity grounds.
With regard to NMS’s second argument, we note that the District Court did adjust
the lodestar by 20% based on Brown’s overall lack of success, her failure to prove that
she was entitled to front pay, and the difference between the award sought and actually
received from the jury. However, the Court did not abuse its discretion by refusing to
further reduce the lodestar amount, in part because it agreed with Brown that “the
discovery and evidence necessary to establish FMLA liability were the same for both
[the] FMLA and Title VII” and because it specifically deducted hours expended on the
PHRA claim. [A 125] Moreover, the sum of the attorney’s fees awarded, $146,784.00, is

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reasonable in light of the fact that the action was tried twice, and that Brown was awarded
$161,311.64 as a result of the suit.
VI. Front Pay
In her cross-appeal, Brown argues that the District Court erred by refusing to
award her front pay. See Donlin, 581 F.3d at 86 (decision to award front pay is reviewed
for abuse of discretion). The FMLA allows “equitable relief as may be appropriate,
including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B). Here,
Brown agreed that reinstatement was not feasible, and, thus, the case proceeded on the
issue of front pay. She consented to a jury determination of this issue.
During the jury instructions, the District Court explained that calculating front pay
required reducing any award to its present value. In the course of explaining the concept
of present value, the Court stated, “However, the lawyers have agreed that you shouldn’t
do it because, if you award front pay, I’ll do it. It’s a very complicated formula that we
don’t want to ask you to try and understand.” [A 258-59] In accordance with the
instructions, the jury interrogatory included questions about the amount of damages the
plaintiff proved. In response to Interrogatory No. 7, which asked about the amount of
“back pay” due to Brown, the jury wrote “$74,000.” [A 277] In response to Interrogatory
No. 8, which asked about “front pay,” the jury wrote “OMIT per Judge’s instructions.”
Id. In answering Interrogatory No. 9, regarding the amount the damages should be
reduced for failure to mitigate, the jury wrote “$0.” Id.

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After the verdict was returned, Brown promptly moved for post-judgment relief on
the issue of front pay. The District Court refused to award front pay, concluding that the
“jury awarded Brown no front pay.” [A 101] The Court rejected Brown’s argument that
the jury’s answer was ambiguous, explaining that “[w]e believe the jury chose to “omit”
an amount of monetary damages for front pay from its response to Interrogatory Number
8 because it found that Brown was not entitled to them.” [A 103]
Reading the jury’s response in the context of the jury instructions regarding front
pay and the jury’s answer — “$0” — to the question on mitigation, we think it is clear
that the jury wrote “OMIT per Judge’s instructions” because it believed the Court would
calculate the amount of front pay itself, not because it believed Brown was not entitled to
it. Therefore, we conclude that the District Court erred when it interpreted the jury’s
answer as denying Brown any award of front pay.
Although the jury’s answer indicated that the jury believed Brown was entitled to
front pay, the jury did not award a specific amount. We are thus faced with the question
of an appropriate remedy. Although Brown initially consented to a jury determination on
the issue of front pay, she now asks for a determination of this issue by the District Court.
The law permits the District Court to make this determination, see Donlin, 581 F.3d at 78
n.1, and such a course is more efficient than empaneling and educating a third jury.

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Judge Fisher believes that Brown consented to a jury determination on her front pay6
request, never objected to the District Court’s charge or verdict form and she did not,
after the verdict was returned, ask the District Court to resubmit what she now
characterizes as an ambiguous answer from the jury. Had NMS raised a waiver
argument, Judge Fisher would have voted to deny front pay and affirm the District Court.
14
Accordingly, we will remand so that the District Court may consider whether front pay is
appropriate and in what amount.6
VII. Conclusion
The District Court’s denial of Brown’s claim for front pay will be vacated, and that
matter will be remanded for further proceedings in accordance with this opinion. The
District Court’s judgment in favor of Brown against NMS will be affirmed in all other
respects. On remand, the District Court may reconsider the amount of its attorney’s fee
award in light of any award of front pay.

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