Delores Nichols v. Ashland Hospital Corporation, d/b/a King’s Daughters’ Medical No. 00-1827 Center

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DELORES NICHOLS,
Plaintiff-Appellee,
v.
ASHLAND HOSPITAL CORPORATION,
d/b/a King’s Daughters’ Medical No. 00-1827 Center,
Defendant-Appellant,
and
FRED L. JACKSON,
Defendant. 
 DELORES NICHOLS,
Plaintiff-Appellant,
v.
ASHLAND HOSPITAL CORPORATION,
d/b/a King’s Daughters’ Medical No. 00-1832 Center,
Defendant-Appellee,
and
FRED L. JACKSON,
Defendant. 
Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CA-98-545-3)
Argued: April 2, 2001
Decided: May 25, 2001

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Before LUTTIG and TRAXLER, Circuit Judges, and
Lacy H. THORNBURG, United States District Judge for
the Western District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Traxler and Judge Thornburg joined.
COUNSEL
ARGUED: Carl D. Edwards, Jr., VANANTWERP, MONGE,
JONES & EDWARDS, Ashland, Kentucky, for Appellant. John Allen
Kessler, St. Albans, West Virginia, for Appellee. ON BRIEF: Ray-
mond C. Haley, WOODWARD, HOBSON & FULTON, L.L.P., Lou-
isville, Kentucky; Thomas J. Obrokta, Jr., JENKINS,
FENSTERMAKER, P.L.L.C., Huntington, West Virginia, for Appel-
lant. Timothy R. Murphy, Charleston, West Virginia; Jeffrey T.
Jones, LAW OFFICES OF JEFFREY T. JONES, P.L.L.C., Charles-
ton, West Virginia, for Appellee.
OPINION
LUTTIG, Circuit Judge:
Appellee Delores Nichols ("Nichols") brought this action against
her former employer, appellant Ashland Hospital Corporation
("Ashland"), alleging violations of the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2611 et seq., and the Kentucky Civil Rights
Act, Ky. Rev. Stat. Ann. § 344 et seq. Ashland appeals the district
court’s denial of its motion for a new trial on the FMLA claim, for
which the jury awarded damages and back pay to Nichols. Nichols
cross-appeals the district court’s denial of her post-trial motion for
front pay. For the reasons set forth below, we affirm.
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I.
Delores Nichols was employed by the King’s Daughters’ Medical
Center (the "Medical Center"), which is owned by Ashland Hospital
Corporation, from June 1991 to January 1997. Nichols was hired as
the Medical Center’s Director of Surgical Services and was subse-
quently promoted to Vice President of Nursing, a senior management
position that she held until she was terminated on January 16, 1997.
Following her termination, Nichols brought this action alleging that
Ashland violated the FMLA and Kentucky state law by firing her in
retaliation for her request for medical leave to recover from brain sur-
gery.
The evidence at trial focused primarily on the conflicting testimony
of Nichols and Fred Jackson, Ashland’s Chief Executive Officer, con-
cerning the events leading to Nichols’ termination. Jackson testified
that he fired Nichols for poor job performance and insubordination.
He stated at trial that he informed Nichols at her performance review
in November 1996 that he was dissatisfied with her work that year.
J.A. 462-72. Jackson also testified that following a staff meeting on
January 14, 1997, Nichols instigated a confrontation with him during
which she was "hostile, angry, and upset" and during which she
accused him of being dishonest and of not acting in the best interests
of the Medical Center. J.A. 501-02. Jackson then decided to fire Nich-
ols. At the suggestion of the Medical Center’s legal counsel, he pre-
pared a memorandum documenting Nichols’ supposed performance
deficiencies. J.A. 502, 637-41. Two days later, Jackson terminated
Nichols’ employment with Ashland.
Nichols’ account of the months leading up to her termination
directly contradicted Jackson’s testimony. Nichols testified that Jack-
son did not raise any criticisms at her performance evaluation in
November 1996, and that, in fact, he complimented both her work
ethic and her contribution to the Medical Center’s success. J.A. 49,
524-26. Nichols also testified, and Ashland did not dispute, that Jack-
son gave her a $9,000 bonus and a five-percent salary increase at the
end of 1996. Further, Nichols denied any insubordinate behavior
toward Jackson following the staff meeting on January 14. According
to her, when she entered Jackson’s office he was "furious" and "irate,"
having just completed a telephone conversation. Nichols testified that
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she then asked Jackson about scheduling her sick leave to recover
from brain surgery, which he angrily refused to discuss. J.A. 68-71.
Two days later, Jackson terminated Nichols’ employment.
After her termination, Nichols sought psychiatric treatment from
Dr. Jack Dodd, who testified on Nichols’ behalf at trial. Dodd diag-
nosed Nichols with "major depressive disorder, and panic disorder,
with agoraphobia," and he attributed her mental state to the loss of her
employment. J.A. 313, 318. He testified that he had recommended
Nichols not return to work as of the time of trial because she was not
"able to function well enough" to do so. J.A. 317.
Following three days of testimony by Jackson, Nichols, Dodd, and
several other witnesses, counsel made closing arguments. When Ash-
land’s counsel argued that Nichols timed her surgery to coincide with
her termination to create the appearance of a retaliatory discharge,
Nichols rose from her chair and exclaimed, "I’m going to have brain
surgery for a job?" The district court immediately admonished Nich-
ols for her behavior, told her to leave the courtroom, and specifically
instructed the jury to disregard the outburst. Counsel for both parties
then completed their closing arguments, and the case was submitted
to the jury.
The jury found for Ashland on the state-law claim and for Nichols
on her FMLA claim, awarding her full back pay and the value of lost
benefits. Ashland appeals the district court’s denial of its motion for
a new trial pursuant to Fed. R. Civ. P. 59. Nichols challenges the dis-
trict court’s denial of her post-trial motion for equitable relief in the
form of front pay.
II.
The decision to grant or deny a new trial under Fed. R. Civ. P. 59
rests "with the sound discretion of the district court, and we review
this decision for a clear abuse of discretion." Bristol Steel & Iron
Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.
1994). Indeed, the district court’s decision "is not reviewable upon
appeal, save in the most exceptional circumstances." Id. (internal cita-
tions omitted). Ashland argues that the district court abused its discre-
tion in denying the motion for a new trial because Nichols’ outburst
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during closing arguments irreparably prejudiced the jury’s delibera-
tions and because the jury’s finding of liability and damages on the
FMLA claim is unsupported by the evidence presented at trial. We
disagree.
A.
The district court described Nichols’ outburst as follows:
[Nichols] stood up from her seat at counsels’ table and, in
an emotionally charged outburst, addressed the Court. She
said something to the effect of, "your honor, please . . . I’m
going to have brain surgery for a job?" The courtroom fell
silent and the Court promptly instructed [Nichols] to exit the
courtroom. [Nichols] was visibly crying during her state-
ment to the Court. As [Nichols] was leaving, the Court gave
the jury the following instruction: "Ladies and gentlemen,
let me instruct you to ignore the outburst by the plaintiff. It
was inappropriate."
J.A. 1310. The district court denied Ashland’s Rule 59 motion
because it held that Nichols’ "comment was not so prejudicial to
[Ashland] as to warrant a new trial," particularly in light of the court’s
immediate curative instruction.
Despite the impropriety of Nichols’ conduct, we conclude that the
district court did not abuse its broad discretion in denying Ashland’s
motion for a new trial. First, the district court made an explicit finding
that the "emotionally charged" nature of Nichols’ conduct had an
effect on the jury that was "minimal at worst." J.A. 1311. We defer
to the district court’s finding because it was "in a position to see and
hear" Nichols’ demeanor and the jurors’ reactions to it "from a per-
spective that an appellate court can never match" by reading a cold
transcript of the proceedings. Bristol Steel, 41 F.3d at 186.
Second, the risk of any prejudice either from the emotional nature
of the outburst or from its substantive import was minimized by the
district court’s specific, contemporaneous instruction to the jury to
ignore Nichols’ comment. For, "while it may not always be simple for
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the members of a jury to obey" a curative instruction, there is an "al-
most invariable assumption of the law that jurors follow their instruc-
tions . . . ." Richardson v. Marsh, 481 U.S. 200, 206-07 (1987)
(internal citations omitted). Here, the verdict confirms the assumption
that the jury did, in fact, follow the court’s directive and that the
deliberations were not tainted by prejudice against Ashland. The jury
held the Medical Center liable only on the FMLA claim and not on
Nichols’ cause of action under the Kentucky Civil Rights Act. We can
infer from the partial verdict in favor of Ashland that the jury was not
swayed by passion or prejudice in the wake of the outburst, but rather
"conscientiously followed . . . instructions [to] disregard[ ] the
improper statements and conduct." United States v. West, 877 F.2d
281, 288 (4th Cir. 1989) (denial of criminal defendants’ motion for
mistrial was not an abuse of discretion since the defendants’ partial
acquittal supported the inference that the jury’s deliberations were not
tainted by prejudice and that the jury followed the court’s instructions
to ignore multiple outbursts). Accordingly, in light of the curative
instruction provided, we affirm the district court’s denial of Ashland’s
motion for a new trial based on Nichols’ outburst.
B.
Ashland next argues that the district court abused its discretion in
denying the motion for a new trial since the jury’s verdict was against
the clear weight of the evidence. But Ashland, as it conceded at oral
argument, did not move for judgment as a matter of law on Nichols’
FMLA claim pursuant to Fed. R. Civ. P. 50(a),1 and consequently
"our scope of review is exceedingly confined, being limited to
whether there was any evidence to support the jury’s verdict, irrespec-
tive of its sufficiency . . . ." Bristol Steel, 41 F.3d at 186 (emphasis
in original) (internal citations omitted). For, as we have explained:
1Ashland did make a post-trial motion for judgment as a matter of law
on the FMLA claim pursuant to Fed. R. Civ. P. 50(b). However, that
motion was effectively a nullity, since a Rule 50(b) motion may only be
made as a renewal of a motion previously made on the same grounds
under Rule 50(a). See Fed. R. Civ. P. 50(b) ("The movant may renew its
request for judgment as a matter of law by filing a motion no later than
10 days after entry of judgment . . . ." (emphasis added)). For this reason,
the district court denied Ashland’s motion under Rule 50(b). J.A. 1306.
Ashland does not challenge the district court’s ruling on appeal.
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[An appellant’s] motion for a new trial does not create the
avenue for searching review that its failure to move for
judgment as a matter of law foreclosed. . . . Were it other-
wise, a party could open the door to review via Rule 59,
even though its prior failure closed the same door via Rule
50. In reviewing the evidence through the medium of a
motion for a new trial after failure to move for judgment as
a matter of law, we do not review "sufficiency" in its techni-
cal sense. What is at issue is whether there was an absolute
absence of evidence to support the jury’s verdict.
Id. (internal citations omitted) (emphasis added).
Ashland argues that it is entitled to a new trial even under this
stringent standard because Nichols failed to prove that Ashland’s
proffered reasons for terminating her were pretextual, as required by
the FMLA, and because Nichols failed to mitigate her damages by
seeking other employment. Because we cannot say that there is an
absolute absence of evidence supporting the jury’s verdict, we affirm
the district court’s denial of Ashland’s motion for a new trial.
1.
If an FMLA plaintiff puts forth sufficient evidence to establish a
prima facie case of retaliation and the employer offers a non-
discriminatory explanation for the plaintiff’s termination, the plaintiff
bears the burden of establishing that the employer’s proffered expla-
nation is pretext for FMLA retaliation. See Hodgens v. General
Dynamics Corp., 144 F.3d 151, 160-61 (1st Cir. 1998); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)
(Title VII case). Ashland argues that there was no evidence to support
the jury’s finding that the proffered reasons for Nichols’ termination
— insubordination and poor job performance — were pretextual. We
disagree.
As to Nichols’ alleged insubordination, Jackson and Nichols testi-
fied to very different accounts of the encounter in Jackson’s office.
Indeed, Nichols flatly denied the insubordinate conduct of which
Jackson accused her. The jury was entitled to credit her testimony
over Jackson’s, and accordingly to conclude that Jackson’s account of
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Nichols’ insubordination was fabricated to mask the retaliatory reason
for her termination.
Likewise, the record also includes evidence from which a jury
could infer that Ashland was never dissatisfied with Nichols’ job per-
formance. First, the record establishes that no written complaints
about Nichols were documented in her personnel file until the day
before she was fired, despite Ashland’s policy that complaints about
employees should be recorded contemporaneously. J.A. 502, 639. The
jury could have concluded that the last-minute documentation of
Nichols’ job performance supports the inference that Jackson con-
trived Nichols’ alleged performance deficiencies, after learning of her
request for sick leave, in order to create the appearance of a non-
discriminatory reason for Nichols’ termination.
Second, based on conflicting testimony regarding Nichols’ perfor-
mance review, the jury could also have disbelieved Jackson’s trial tes-
timony that he was dissatisfied with Nichols’ performance in 1996.
For, while Jackson testified that during the performance review he
pointed out five deficiencies in Nichols’ work that needed improve-
ment, J.A. 462, Nichols testified emphatically that "there was no criti-
cism during the performance review" and that, in fact, Jackson
complimented her on her work ethic and contributions to the Medical
Center. J.A. 49.
Third, the jury could have believed not only that Nichols’ perfor-
mance evaluation was complimentary but also that Ashland was satis-
fied with Nichols’ performance because she received a $9,000 bonus
for 1996 and a five-percent pay increase at her performance review.
J.A. 50. Indeed, Nichols received bonuses for every year of her tenure
at the Medical Center, during which her salary increased from
$40,000 to $92,000. J.A. 35-40, 50.
Thus, we cannot say that there was no evidence from which a jury
could conclude that Ashland fabricated complaints about Nichols’ job
performance and alleged insubordination as pretextual reasons for her
termination.
2.
Ashland also argues that it is entitled to a new trial because Nichols
produced no evidence to rebut Ashland’s defense that she failed to
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mitigate her damages by seeking other paid employment. We reject
this argument as well.
In awarding back pay to Nichols, the jury concluded that the Medi-
cal Center had not:
proven by a preponderance of the evidence that plaintiff, at
some point, failed to exercise reasonable diligence and care
in seeking employment that is substantially equivalent to her
prior position in light of her individual characteristics, her
health, and the job market.
J.A. 914 (emphasis added).2 Evidence supporting Nichols’ claimed
inability to seek such employment was adduced through the testimony
of her treating psychiatrist, Dr. Dodd, who stated that Nichols was
"unable to function" in a paying job because of her severe depression
and panic disorder, which he attributed to her termination by Ashland.
J.A. 313, 318.
Ashland vigorously cross-examined Dodd, challenging his credibil-
ity based on, inter alia, the lack of formal tests underlying his diagno-
sis and recommendation. Yet Ashland presented no contrary
psychiatric testimony to rebut Dodd’s claim at trial, and the jury was
entitled to credit Dodd’s testimony about Nichols’ mental state in
considering whether Nichols’ admitted failure to seek paid employ-
ment was "reasonable . . . in light of her individual characteristics
[and] her health." J.A. 914. Accordingly, we cannot say there was a
lack of any evidence supporting the jury’s verdict, and we affirm the
district court’s denial of Ashland’s motion for a new trial on the ques-
tion of damages.
III.
Nichols cross-appeals the district court’s denial of her post-trial
motion for front pay from the date of trial through her expected retire-
ment at age 65. The FMLA provides that "the employer . . . shall be
liable . . . for equitable relief as may be appropriate . . . ." 29 U.S.C.
2Ashland does not challenge this jury instruction on appeal.
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§ 2617(a)(1)(B). Such equitable relief may include front pay. Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294, 307 (4th Cir. 1998). The award
of front pay rests squarely within the district court’s discretion, which
must be "tempered" by "the potential for windfall" to the plaintiff.
Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir. 1991) (Title VII
case); see also Hardin v. Caterpillar, Inc., 227 F.3d 268, 269 (5th Cir.
2000) (FMLA case).
Nichols argues that the emotional trauma she suffered as a result
of wrongful discharge impaired her so severely that she can never
return to gainful employment. At the post-trial hearing on Nichols’
motion for front pay, Dodd testified that Nichols’ condition had wors-
ened since trial and that she would not be able to work again. How-
ever, Dodd conceded that he had not performed any tests or formal
psychiatric assessments to support his conclusion. Moreover, unlike
at trial, Ashland put forth its own psychiatric expert, Dr. David Shra-
berg, who testified that he did not believe Nichols was "so depressed
and so neurocognitively impaired or so traumatized from work that
she couldn’t go back to a wide variety of jobs in the workplace . . . ."
J.A. 1240. Shraberg further testified that to the extent Nichols "indeed
is unable to work, it’s not attributed [sic] to her period of employment
at the [Medical Center]." J.A. 1225.
Faced with conflicting opinions about whether Nichols’ discharge
from the Medical Center so debilitated her that she will never be able
to return to work, the district court was not bound to accept Dodd’s
"dire forecast" — uncorroborated by clinical evidence — about Nich-
ols’ future employment prospects.3 J.A. 1300. Because the district
3Contrary to Nichols’ argument, the district court’s denial of front pay
is not inconsistent with the jury’s award of back pay. As the Eighth Cir-
cuit has explained, front pay and back pay are concerned with different
temporal periods, and "[t]he number of suitable jobs which a plaintiff
could be expected to locate would likely increase as the temporal length
of the job search increases." Excel Corp. v. Bosley, 165 F.3d 635, 640
(8th Cir. 1999). In awarding back pay to Nichols, the jury credited
Dodd’s trial testimony that Nichols was unable to work between the time
of her termination and the date of trial. In contrast, the issue before the
district court in ruling on Nichols’ motion for front pay turned on the
credibility of Dodd’s controverted post-trial testimony that Nichols
would be unable to work during a different temporal period — that is,
between the time of trial and her anticipated retirement age of 65.
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court was within its discretion to credit Shraberg’s testimony over
Dodd’s, we affirm the district court’s denial of front pay.
CONCLUSION
For the reasons stated herein, we affirm the judgment of the district
court.4
AFFIRMED
4Ashland also challenges the district court’s award of attorneys’ fees.
The district court did not abuse its discretion in setting the hourly rate for
Nichols’ attorney, since the court based its decision on affidavits from
lawyers in the community with comparable skills and experience. J.A.
1290-91; Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987) (court
must consider "specific evidence of the prevailing market rates in the rel-
evant community for the type of work" involved in the case). Nor did the
court abuse its discretion by refusing to reduce the award of attorneys’
fees to account for Nichols’ lack of success on her state-law claim, since
the state-law and FMLA claims contained "a common core of facts . . .
making it difficult to divide the hours expended." Hensley v. Eckerhart,
461 U.S. 424, 434 (1983).
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