The Honorable Shira A. Scheindlin, of the United States District Court for the… v. Metro-North R.R. Co. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2…

* The Honorable Shira A. Scheindlin, of the United
States District Court for the Southern District of New York,
sitting by designation.
10-409-cv (L)
Millea v. Metro-North R.R. Co.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Argued: February 7, 2011 Decided: August 8, 2011) 4
Docket Nos. 10-409-cv (L); 10-564-cv (XAP) 5
6
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8
CHRISTOPHER MILLEA, 9
10
Plaintiff-Appellant-Cross- 11
Appellee, 12
13
-v.- 10-409-cv (L) 14
10-564-cv (XAP) 15
METRO-NORTH RAILROAD COMPANY, 16
17
Defendant-Appellee-Cross- 18
Appellant. 19
20
- - - - - - - - - - - - - - - - - - - -x 21
22
Before: DENNIS JACOBS, Chief Judge, 23
PETER W. HALL, Circuit Judge, 24
SHIRA A. SCHEINDLIN, District Judge.*
25
26
27
Following a jury trial in the United States District 28
Court for the District of Connecticut (Bryant, J.), 29

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2
plaintiff Christopher Millea won partial victory on his 1
claims under the Family Medical Leave Act (“FMLA”). He and 2
the defendant, Metro-North Railroad Co. (“Metro-North”), 3
cross-appeal. Millea argues that, on his retaliation claim, 4
the jury charge should have adopted the standard set forth 5
for Title VII retaliation in Burlington Northern & Sante Fe 6
Railway Co. v. White, 548 U.S. 53 (2006). Millea also 7
appeals the award of only $204 in attorneys’ fees on his one 8
successful claim, that Metro-North interfered in his 9
exercise of FMLA rights. Metro-North cross-appeals the 10
denial of its Rule 50 motion for judgment as a matter of law 11
on the interference claim. We affirm the district court’s 12
denial of Metro-North’s motion. Because the district court 13
erred in rejecting the Burlington Northern jury charge, and 14
this error prejudiced the plaintiff, we vacate and remand 15
for a new trial on the retaliation claim. We also vacate 16
the award of attorneys’ fees and remand for recalculation in 17
conformity with the lodestar method. 18
19
FOR APPELLANT: Joseph D. Garrison, Jr. 20
Garrison, Levin-Epstein, Chimes, 21
Richardson & Fitzgerald, P.C. 22
New Haven, CT 23
24
Charles C. Goetsch 25
Cahill Goetsch & Perry, P.C. 26
New Haven, CT 27

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3
FOR APPELLEE: Charles A. Deluca 1
Beck S. Fineman 2
William N. Wright 3
Ryan Ryan Deluca LLP 4
Stamford, CT 5
6
7
DENNIS JACOBS, Chief Judge: 8
9
Following a jury trial in the United States District 10
Court for the District of Connecticut (Bryant, J.), 11
plaintiff Christopher Millea won partial victory on his 12
claims under the Family Medical Leave Act (“FMLA”). He and 13
the defendant, Metro-North Railroad Co. (“Metro-North”), 14
cross-appeal. Millea argues that, on his unsuccessful 15
retaliation claim, the jury charge should have adopted the 16
standard set forth for Title VII retaliation in Burlington 17
Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 18
(2006). Millea also appeals the award of only $204 in 19
attorneys’ fees on his one successful claim, that Metro- 20
North interfered in his exercise of FMLA rights. Metro- 21
North cross-appeals the denial of its Rule 50 motion for 22
judgment as a matter of law on the interference claim. We 23
affirm the district court’s denial of Metro-North’s motion. 24
Because the district court erred in rejecting the 25
Burlington Northern jury charge, and this error prejudiced 26
the plaintiff, we vacate and remand for a new trial on the 27

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4
retaliation claim. We also vacate the award of attorneys’ 1
fees and remand for recalculation in conformity with the 2
lodestar method. 3
4
BACKGROUND 5
Christopher Millea suffers from severe post-traumatic 6
stress disorder as a result of combat as a Marine during 7
the First Gulf War. Notwithstanding psychotherapy and 8
medication, he suffers unpredictable panic attacks and 9
exhaustion that can require time off work on short notice. 10
In 2001, Millea began working for Metro-North, a tri-state 11
area commuter railroad. In 2005, he applied for special 12
leave under the FMLA; Metro-North approved his application 13
and granted him 60 days of intermittent FMLA leave for 14
2006. 15
The Incident. In the summer of 2006, Millea was 16
working in a Stamford storeroom under supervisor Earl 17
Vaughn, with whom Millea had developed a contentious 18
relationship. A phone conversation with Vaughn on 19
September 18, 2006, developed into a heated disagreement 20
that triggered one of Millea’s panic attacks. Millea 21
immediately left work to see his doctor. Because the 22
encounter with Vaughn led to the attack, Millea did not 23

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5
inform Vaughn about his unforeseen FMLA leave; instead, he 1
advised Garrett Sullivan, the Lead Clerk, and asked 2
Sullivan to advise Vaughn, which Sullivan did. The next 3
day, Millea called Sullivan at 5:45am to report that he was 4
taking another FMLA day; Sullivan again relayed the 5
information to Vaughn. In both instances, Vaughn received 6
timely, although indirect, notice of Millea’s use of FMLA 7
leave. 8
Metro-North’s internal leave policy provides, in 9
relevant part, “[i]f the need for FMLA leave is not 10
foreseeable, employees must give notice to their supervisor 11
as soon as possible.” Because Millea did not notify Vaughn 12
of his two absences directly, Vaughn told Metro-North’s 13
payroll department to log Millea’s absences as non-FMLA 14
leave. Metro-North then opened an official investigation 15
of Millea, which resulted in a formal Notice of Discipline 16
being placed in his employment file for one year. The 17
Notice was expunged after a year, Millea having had no 18
further disciplinary incidents. After the investigation, 19
Millea voluntarily transferred to a custodian janitorial 20
job, which paid slightly less but was not supervised by 21
Vaughn. 22

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6
The Complaint. Millea’s complaint against Metro-North 1
alleges that he never violated Metro-North’s internal leave 2
policy because he notified Vaughn (indirectly) of his 3
absences, or, in the alternative, that the aspect of Metro- 4
North’s policy he violated was void because it conflicted 5
with the regulations implementing the FMLA. Millea alleges 6
three claims: 7
1. Interference with Millea’s ability to take FMLA 8
leave. See 29 U.S.C. § 2615(a)(1) (“It shall be 9
unlawful for any employer to interfere with, 10
restrain, or deny the exercise of or the attempt 11
to exercise, any right provided under this 12
subchapter.”). 13
14
2. Retaliation against Millea for taking FMLA leave 15
by: (i) placing a notice of discipline in his 16
employment file for a year; (ii) requiring him to 17
update his FMLA certification; (iii) creating a 18
work environment that motivated him to transfer to 19
a lower paying job; (iv) delaying approval of his 20
bid for the lead custodian position in 2009; and 21
(v) subjecting him to heightened managerial 22
surveillance. See 29 U.S.C. § 2615(a)(2) (“It 23
shall be unlawful for any employer to discharge or 24
in any other manner discriminate against any 25
individual for opposing any practice made unlawful 26
by this subchapter.”). 27
28
3. Intentional infliction of emotional distress 29
(“IIED”). 30
31
The Answer. On the interference claim, Metro-North 32
answered that it was entitled to log Millea’s absences as 33
non-FMLA leave because he violated Metro-North’s legally 34
valid internal leave policy. On the retaliation claim, 35

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7
Metro-North answered that none of the claimed acts of 1
retaliation was the result of Millea’s use of FMLA leave, 2
and none was materially adverse. On the IIED claim, Metro- 3
North answered that any violation of the FMLA was not done 4
intentionally or outrageously and so could not amount to 5
IIED. 6
The Trial. Millea’s suit against Metro-North was 7
tried in May 2009. Millea requested that the court charge 8
the jury on the definition of “materially adverse 9
employment action” using the standard articulated by the 10
Supreme Court in Burlington Northern & Santa Fe Railway Co. 11
v. White, 548 U.S. 53 (2006) (“Burlington Northern”), a 12
Title VII retaliation claim case. The court rejected the 13
proposed charge on the ground that this case involved the 14
FMLA, not Title VII, and instead issued an instruction with 15
a narrower definition of “materially adverse.” 16
The jury returned a verdict in favor of Millea on his 17
interference claim, awarding him $612.50 in lost wages and 18
other damages. The jury found in favor of Metro-North on 19
both the retaliation and IIED claims. Millea moved for 20
costs and attorneys’ fees, and the court awarded $204 in 21
attorneys’ fees and $18,643 in costs. Metro-North moved 22
for judgment as a matter of law on the interference claim 23

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8
and for its costs associated with the retaliation and EEID 1
claims. The court denied these motions. 2
Both parties now appeal. 3
4
DISCUSSION 5
This appeal and cross-appeal together present three 6
questions. First, did the district court err in denying 7
Metro-North’s request for judgment as a matter of law on 8
Millea’s interference claim? Second, did the district 9
court commit nonharmless error when it rejected Millea’s 10
proposed retaliation instruction based on the Burlington 11
Northern standard? Third, did the district court abuse its 12
discretion in awarding Millea only $204 in attorneys’ fees 13
for his successful interference claim? 14
15
I 16
“We review a district court’s ruling on a Rule 50 17
motion de novo, and apply the same standard used by the 18
district court below.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d 19
Cir. 2004). Judgment as a matter of law is available only 20
if there is no “legally sufficient evidentiary basis” for a 21
reasonable jury to find for the prevailing party on that 22
claim. Fed. R. Civ. P. 50(a)(1). Judgment as a matter of 23

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9
law is only granted when “(1) there is such a complete 1
absence of evidence supporting the verdict that the jury’s 2
findings could only have been the result of sheer surmise 3
and conjecture, or (2) there is such an overwhelming amount 4
of evidence in favor of the movant that reasonable and fair 5
minded persons could not arrive at a verdict against it.” 6
Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. 7
Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (brackets and 8
internal quotation marks omitted). 9
10
A 11
Metro-North argues there is no legal basis on which 12
the jury could have concluded that Metro-North interfered 13
with Millea’s exercise of his FMLA rights. Metro-North 14
concedes that Millea was entitled to take FMLA leave and 15
that it disciplined Millea for his use of such leave, but 16
argues that such discipline was justified as a matter of 17
law by Millea’s failure to comply with Metro-North’s 18
internal leave policy requiring an employee to notify his 19
supervisor directly when FMLA leave is taken. There is no 20
dispute that a company may discipline an employee for 21
violating its internal leave policy as long as that policy 22
is consistent with the law; however, we conclude that, on 23

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10
these facts, Metro-North’s internal leave policy is 1
inconsistent with the FMLA. 2
The FMLA generally requires employees to “comply with 3
the employer’s usual and customary notice and procedural 4
requirements for requesting leave.” 29 C.F.R. § 5
825.303(c). However, this requirement is relaxed in 6
“unusual circumstances” or where the company policy 7
conflicts with the law. Id. 8
The regulations implementing the FMLA provide that 9
when an employee’s need for FMLA leave is unforeseeable (as 10
Millea’s was), “[n]otice may be given by the employee’s 11
spokesperson (e.g., spouse, adult family member, or other 12
responsible party) if the employee is unable to do so 13
personally.” Id. § 825.303(a). Because this regulation 14
expressly condones indirect notification when the employee 15
is unable to notify directly, Metro-North’s policy 16
conflicts with the FMLA and is therefore invalid to the 17
extent it requires direct notification even when the FMLA 18
leave is unforeseen and direct notification is not an 19
option. 20
Whether Millea’s situation on September 2006 21
constituted an “unusual circumstance” in which he was 22
“unable” to personally notify Vaughn is a question of fact, 23

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11
not of law. The jury found that Millea gave proper notice, 1
meaning his notice complied with the FMLA and all legally 2
valid aspects of Metro-North’s internal leave policy. 3
Neither the district court nor this Court may second-guess 4
this finding. 5
6
B 7
Metro-North also argues that the jury verdict on the 8
interference claim must be vacated because the district 9
court committed legal error by charging the jury that an 10
employer’s internal leave policy may not be more strict 11
than the requirements of the FMLA. Metro-North argues this 12
instruction was impermissibly broad and vague. We 13
disagree. 14
The district court charged the jury: 15
In determining whether [Millea’s] notice occurred 16
as soon as practicable, you must consider all of 17
the facts and circumstances of the situation. You 18
should note that under the FMLA, notice may be 19
given by the employee, by a family member, or 20
other responsible adult, such as a treating 21
physician or other medical professional. You 22
should also note that an employer may impose 23
customary rules and procedures for notification, 24
provided that they are not more stringent than the 25
requirements under the Family Medical Leave Act. 26
27
This instruction is not misleading: It correctly explains 28
that the FMLA authorizes indirect notification and that an 29

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12
employer is free to implement internal notification rules 1
only to the extent those rules are not more strict than the 2
law allows. 3
Metro-North argues that the “not more stringent” 4
language is overly broad because companies may implement 5
internal leave policies more strict than the FMLA as long 6
as the “timing requirement” is not more strict than the 7
FMLA permits. This is incorrect: The FMLA limits 8
stringency, requiring certain latitude in terms of timing, 9
method of notification, etc. If the law expressly states 10
that an employee may do a thing, a company’s internal leave 11
policy may not prohibit it. In this case, the FMLA’s 12
implementing regulations state that an employee in Millea’s 13
position may notify his employer indirectly of his need for 14
unforeseen medical leave; a company’s internal leave policy 15
may not require otherwise. The jury instruction correctly 16
captured this idea. 17
18
C 19
Even if Millea prevails on his interference claim, he 20
would be entitled to no damages unless he suffered a 21
compensable loss as a result of the alleged interference. 22
The FMLA provides that an employer interfering with its 23

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13
employee’s legitimate use of FMLA-protected leave “shall be 1
liable to [the] employee affected...for damages equal 2
to...the amount of...any wages, salary, employment 3
benefits, or other compensation denied or lost to such 4
employee by reason of the violation.” 29 U.S.C. § 5
2617(a)(1)(A)(i)(I). Metro-North argues that when it 6
logged Millea’s medical leave as “sick leave” instead of 7
“FMLA leave,” Millea suffered no compensable loss because 8
both types of leave were unpaid, and that it is therefore 9
entitled to judgment as a matter of law that it owes Millea 10
nothing. 11
It appears from the record that Metro-North never made 12
this argument before the district court. Its opposition to 13
Millea’s motion for attorneys’ fees implicitly conceded the 14
validity of the $612.50 damages award: It used this award 15
as the basis for its calculation of attorneys’ fees. 16
Arguments raised for the first time on appeal are deemed 17
waived. Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 18
(2d Cir. 2006) (“[T]his court ordinarily will not hear 19
arguments not made to the district court.”). Having 20
tacitly accepted the validity of the damage award before 21

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2 Section 2617(a)(1)(A) allows recovery for lost
“benefits” and “other compensation” in addition to lost
wages. Logging Millea’s FMLA leave as “sick leave”
presumably reduced the number of remaining sick leave days
to which Millea was entitled--“presumably,” because it is
assumed that Metro-North does not grant limitless unpaid
sick leave (the record was never developed on this point
precisely because Metro-North failed to raise the issue
before the district court). Furthermore, the controversy
created by Vaughn’s decision to change Millea’s leave from
“FMLA leave” to “sick leave” forced Millea to spend
considerable time on the internal investigations and
disciplinary proceeding, which may have resulted in missed
work hours and lost wages.
14
the district court, Metro-North waived this argument even 1
if it had merit, which is doubtful. 2
2
3
II 4
Millea challenges the judgment dismissing his 5
retaliation claim on the ground that the jury instruction 6
defining “materially adverse action” constituted reversible 7
error. We review de novo a claim of an erroneous jury 8
instruction. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 9
115 (2d Cir. 2000). To justify a new trial, a jury 10
instruction must be both erroneous and prejudicial. Id. at 11
116. “A jury instruction is erroneous if it misleads the 12
jury as to the correct legal standard or does not 13
adequately inform the jury on the law.” Id. An erroneous 14

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15
jury instruction is prejudicial unless “the court is 1
convinced that the error did not influence the jury’s 2
verdict.” Id. 3
4
A 5
Millea sought a charge using the definition of 6
“materially adverse employment action” articulated by the 7
Supreme Court in the Title VII lawsuit, Burlington Northern 8
& Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006). In 9
particular, Millea proposed that an adverse employment 10
action occurs when “a reasonable employee in the 11
plaintiff’s position would have found the alleged 12
retaliatory action materially adverse,” and that a 13
retaliatory action is “materially adverse” when the action 14
“would have been likely to dissuade or deter a reasonable 15
worker in the plaintiff’s position from exercising his 16
legal rights.” 17
The district court rejected Millea’s proposed 18
instruction, instead charging the jury: 19
An “adverse employment action” is a materially 20
adverse change in the terms and conditions of 21
employment. Examples of material adverse change 22
in the terms and conditions of employment are 23
termination, demotion, loss of benefits, or 24
significantly diminished responsibilities. An 25
alteration of job responsibilities and a mere 26

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16
inconvenience are not examples of materially 1
adverse changes in the terms and conditions of 2
employment. 3
Millea argues that in light of the reasoning in Burlington 4
Northern, the district court’s definition of “materially 5
adverse” was impermissibly narrow and therefore erroneous. 6
We agree. 7
Burlington Northern expanded the definition of 8
“materially adverse employment action” for purposes of 9
Title VII retaliation claims. Now, a Title VII plaintiff 10
“must show that a reasonable employee would have found the 11
challenged action materially adverse, which in this context 12
means it well might have dissuaded a reasonable worker from 13
making or supporting a charge of discrimination.” 548 U.S. 14
at 68 (internal quotation marks omitted). The Court 15
rejected the proposition that an actionable act of 16
retaliation must relate to the specific terms and 17
conditions of the employee’s employment, id. at 61, and 18
construed “materially adverse action” broadly to include 19
changes in employment life outside of the terms and 20
conditions of employment. Id. The Court concluded that 21
only this broader definition fulfilled the purpose of Title 22
VII’s anti-retaliation provision: preventing employers 23

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17
from deterring their employees from exercising their 1
legitimate legal rights. Id. at 68. 2
This rationale applies with comparable force to the 3
anti-retaliation provision of the FMLA. The FMLA’s anti- 4
retaliation provision has the same underlying purpose as 5
Title VII--and almost identical wording. Compare 29 U.S.C. 6
§ 2615(a)(2) (“It shall be unlawful for any employer 7
to...discriminate against any individual for opposing any 8
practice made unlawful by this subchapter.”), with 42 9
U.S.C. § 2000e-3(a) (“It shall be an unlawful employment 10
practice for an employer to discriminate against any of his 11
employees...because he has opposed any practice made an 12
unlawful employment practice by this subchapter.”). 13
We therefore join our sister circuits that have 14
considered this issue and apply the Burlington Northern 15
standard for materially adverse action to the FMLA context. 16
See Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th 17
Cir. 2008) (applying Burlington Northern anti-retaliation 18
standard to FMLA retaliation claims); Metzler v. Fed. Home 19
Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 20
2006) (same); McArdle v. Dell Prods., L.P., 293 F. App’x 21
331, 337 (5th Cir. 2008) (unpublished opinion) (per curiam) 22
(same); DiCampli v. Korman Cmtys., 257 F. App’x 497, 500-01 23

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18
(3d Cir. 2007) (unpublished opinion) (same); Csicsmann v. 1
Sallada, 211 F. App’x 163, 167-68 (4th Cir. 2006) 2
(unpublished opinion) (per curiam) (same). For purposes of 3
the FMLA’s anti-retaliation provision, a materially adverse 4
action is any action by the employer that is likely to 5
dissuade a reasonable worker in the plaintiff’s position 6
from exercising his legal rights. 7
By instructing the jury that a “material adverse 8
action” is restricted solely to changes in the employee’s 9
terms and conditions of employment, the district court 10
committed legal error. 11
12
B 13
Millea further argues that the erroneous jury 14
instruction prejudiced him, and that retrial is required on 15
his retaliation claim. We agree. 16
Of the five retaliatory acts alleged by Millea, the 17
jury found only one causally related to Millea’s use of 18
FMLA leave: the placement of a formal letter of reprimand 19
in Millea’s employment file. The error in the district 20
court’s jury instruction is harmless as to the four other 21
actions due to lack of causation, and we affirm the 22
judgment in favor of Metro-North as to those four actions. 23

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19
As for the letter of reprimand, Metro-North argues 1
that any error by the district court was harmless because 2
the adverse effect of the letter was not “material” even 3
under the Burlington Northern standard. We disagree. 4
The Burlington Northern materiality standard is 5
intended to “separate significant from trivial harms” so 6
that employee protection statutes such as Title VII and the 7
FMLA do not come to create “a general civility code for the 8
American workplace.” Burlington Northern, 548 U.S. at 68 9
(internal quotation marks omitted). To separate the 10
significant from the trivial, the Burlington Northern 11
standard employs an “objective” test, which considers 12
whether the action would deter a “reasonable employee” from 13
exercising his rights. Id. “[P]etty slights, minor 14
annoyances, and simple lack of good manners will not” give 15
rise to actionable retaliation claims. Id. In this 16
objective light, we think (and conclude that a reasonable 17
jury could decide) that a letter of reprimand would deter a 18
reasonable employee from exercising his FMLA rights. A 19
formal reprimand issued by an employer is not a “petty 20
slight,” “minor annoyance,” or “trivial” punishment; it can 21
reduce an employee’s likelihood of receiving future 22
bonuses, raises, and promotions, and it may lead the 23

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20
employee to believe (correctly or not) that his job is in 1
jeopardy. A reasonable jury could conclude as much even 2
when, as here, the letter does not directly or immediately 3
result in any loss of wages or benefits, and does not 4
remain in the employment file permanently. 5
Because the erroneous jury instruction differs 6
materially from the proper jury instruction that Millea 7
proposed, and because a reasonable jury could conclude that 8
the letter of reprimand constitutes retaliation under the 9
proper jury instruction, we conclude that the error was 10
prejudicial. 11
Metro-North argues that any error was harmless in any 12
event because Millea suffered no lost wages, salary, or 13
employment benefits as a result of the alleged retaliation, 14
and that no retrial is needed because Millea would receive 15
no relief even if he prevailed. We disagree. 16
First, because Millea did not prevail on his 17
retaliation claim, the jury made no factual findings as to 18
whether Millea suffered any lost wages or benefits as a 19
result of Metro-North’s alleged retaliation. Under 20
§ 2617(a)(1)(A), Millea is entitled to recover not just 21
lost wages and benefits but also any “actual monetary 22
losses sustained” as a direct result of Metro-North’s 23

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21
retaliation. Millea has asserted that he sustained such 1
losses: As a result of Metro-North’s actions, he felt 2
compelled to transfer to a lower paying job, thereby losing 3
income. Millea should have an opportunity before the trial 4
court to show that the letter of reprimand--if the jury 5
determines that it constituted retaliation--caused this 6
loss (and others). 7
Second, even if Millea cannot show specific monetary 8
losses caused by the letter of reprimand, he may be 9
entitled to equitable relief under § 2617(a)(1)(B), 10
including any promotions or job transfers he may have been 11
denied. Again, if Millea convinces a jury that the letter 12
of reprimand constituted illegal retaliation, he deserves 13
an opportunity to pursue such equitable relief. 14
Finally, the success of Millea’s retaliation claim 15
affects the attorneys’ fees to which Millea is entitled 16
under the FMLA’s fee-shifting provision. After the trial, 17
the district court reduced the attorneys’ fees 18
significantly because Millea prevailed only on the least 19
significant of his three claims. Millea v. Metro-North 20
R.R. Co., No. 3:06-cv-1929, 2010 WL 126186, at *4-8 (D. 21
Conn. Jan. 8, 2010). This would change if Millea succeeded 22
on his retaliation claim at retrial. 23

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22
In sum, we hold that the definition of “materially 1
adverse employment action” articulated by the Supreme Court 2
in Burlington Northern applies to FMLA retaliation claims. 3
The district court’s failure to instruct the jury using 4
this standard was an error that may have influenced the 5
verdict, so it is not harmless and necessitates a new 6
trial. We therefore vacate the judgment in favor of Metro- 7
North on Millea’s FMLA retaliation claim and remand for a 8
new trial on this claim alone. We affirm the judgment in 9
favor of Millea on his FMLA interference claim and the 10
judgment in favor of Metro-North on Millea’s IIED claim. 11
12
III 13
The FMLA directs that the district court “shall, in 14
addition to any judgment awarded to the plaintiff, allow a 15
reasonable attorney’s fee, reasonable expert witness fees, 16
and other costs of the action to be paid by the defendant.” 17
29 U.S.C. § 2617(a)(3). 18
We review attorneys’ fee awards for abuse of 19
discretion. McDaniel v. Cnty. of Schenectady, 595 F.3d 20
411, 416 (2d Cir. 2010). A district court abuses its 21
discretion if it (1) bases its decision on an error of law 22
or uses the wrong legal standard; (2) bases its decision on 23

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3 Because we vacated the judgment in favor of Metro-
North on Millea’s retaliation claim, Millea could succeed on
this claim at retrial, necessitating a recalculation of his
attorneys’ fees. Such a recalculation would render the
errors made by the district court in its original
calculation moot. However, we still must reach the fee
award issue here because the legal error in the district
court’s original calculation necessitates a recalculation
even if Millea’s retaliation claim fails when retried.
23
a clearly erroneous factual finding; or (3) reaches a 1
conclusion that, though not necessarily the product of a 2
legal error or a clearly erroneous factual finding, “cannot 3
be located within the range of permissible decisions.” Id. 4
(internal quotation marks omitted). 5
Millea argues the district court abused its discretion 6
by calculating the fee award as a proportion of his 7
monetary recovery. We agree, and we therefore vacate the 8
fee award and remand for recalculation in accordance with 9
the lodestar method and this opinion. 3
10
11
A 12
“The district court retains discretion to 13
determine...what constitutes a reasonable fee.” LeBlanc- 14
Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998) 15
(internal quotation marks omitted). However, this 16
discretion is not unfettered, and when a prevailing party 17

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24
is entitled to attorneys’ fees, the district court must 1
abide by the procedural requirements for calculating those 2
fees articulated by this Court and the Supreme Court. 3
Both this Court and the Supreme Court have held that 4
the lodestar--the product of a reasonable hourly rate and 5
the reasonable number of hours required by the case-- 6
creates a “presumptively reasonable fee.” Arbor Hill 7
Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 8
522 F.3d 182, 183 (2d Cir. 2008); see also Perdue v. Kenny 9
A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010). While the 10
lodestar is not always conclusive, its presumptive 11
reasonability means that, absent extraordinary 12
circumstances, failing to calculate it as a starting point 13
is legal error. A detailed explanation of the lodestar 14
calculation is unnecessary, but compliance with the Supreme 15
Court’s directive that fee award calculations be “objective 16
and reviewable,” implies the district court should at least 17
provide the number of hours and hourly rate it used to 18
produce the lodestar figure. Perdue, 130 S. Ct. at 1674. 19
It is unclear whether the district court calculated 20
the lodestar. The opinion references Millea’s request for 21
$144,792 in attorneys’ fees, but does not explain how this 22
figure was calculated. Millea, 2010 WL 126186, at *6. 23

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25
1
B 2
While a district court must calculate the lodestar, it 3
is not “conclusive in all circumstances.” Perdue, 130 S. 4
Ct. at 1673. A district court may adjust the lodestar when 5
it “does not adequately take into account a factor that may 6
properly be considered in determining a reasonable fee.” 7
Id. However, such adjustments are appropriate only in 8
“rare circumstances,” because the “lodestar figure 9
[already] includes most, if not all, of the relevant 10
factors constituting a reasonable attorney’s fee.” Id. 11
(internal quotation marks omitted). For example, a court 12
may not adjust the lodestar based on factors already 13
included in the lodestar calculation itself because doing 14
so effectively double-counts those factors. Instead, the 15
lodestar can be adjusted only by factors relevant to the 16
determination of reasonable attorneys’ fees that were not 17
already considered in the initial lodestar calculation. 18
The district court erred by adjusting the initial $144,792 19
figure--which is presumably the lodestar--by several 20
factors. 21
First, the district court reduced its initial figure 22
because it concluded Millea’s case was not particularly 23

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26
complicated and “did not involve any novel legal issues 1
significant to the legal community.” Millea, 2010 WL 2
126186, at *5. “[T]he novelty and complexity of a case 3
generally may not be used as a ground for [adjusting the 4
lodestar]” because they are already included in the 5
lodestar calculation itself, being “fully reflected in the 6
number of billable hours recorded by counsel.” Perdue, 130 7
S. Ct. at 1673 (internal quotation marks and bracket 8
omitted). Thus, while a district court may not adjust the 9
lodestar based on these factors, it may use them to 10
determine the reasonable number of hours the case requires. 11
That is a permissible consideration and one that a trial 12
judge is particularly well-situated to evaluate. 13
Second, the district court impermissibly reduced its 14
initial figure because it concluded that the interference 15
claim--the only claim on which Millea prevailed--had no 16
pubic policy significance. Millea, 2010 WL 126186, at *6. 17
By enacting a fee-shifting provision for FMLA claims, 18
Congress has already made the policy determination that 19
FMLA claims serve an important public purpose 20

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4 To the extent we have held otherwise in the past, see
Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997) (“[W]here
the damage award is nominal or modest, the injunctive relief
has no systemic effect of importance, and no substantial
public interest is served, a substantial fee award cannot be
justified.”), such holdings were (at least) impaired by the
declaration in Perdue that the lodestar is the “guiding
light of our fee-shifting jurisprudence,” that it is
“presumptively reasonable,” that it includes “most, if not
all, of the relevant factors” in determining a reasonable
fee award, and that it should only be deviated from in
“rare” and “exceptional” circumstances. Perdue, 130 S. Ct.
at 1672-73 (internal quotation marks omitted).
5 Hours spent on legal work that furthers both fee-
shifting and non-fee-shifting claims may be included in the
27
disproportionate to their cash value. We cannot second- 1
guess this legislative policy decision. 4
2
Third, the district court impermissibly reduced its 3
initial award because Millea was unsuccessful on his 4
retaliation and IIED claims. Millea, 2010 WL 126186, at 5
*5-6. Millea’s lack of success on the IIED claim provides 6
no reason to adjust the lodestar because the lodestar 7
should have already excluded this claim. When calculating 8
a lodestar, the number of hours spent on a case should 9
include only those hours spent on claims eligible for fee- 10
shifting. Hours spent solely on common law claims and 11
statutory claims not subject to fee-shifting must be 12
excluded to reflect the default rule that “each party must 13
pay its own attorney’s fees and expenses.” 5 Perdue, 130 S. 14

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lodestar calculation because they would have been expended
even if the plaintiff had not included non-fee-shifting
claims in his complaint.
28
Ct. at 1671. Excluding these ineligible claims prevents 1
abuse: Plaintiffs should not be able to inject frivolous 2
or borderline frivolous fee-shifting claims into a 3
litigation in order to collect attorneys’ fees on claims 4
for which fee-shifting is not available. For similar 5
reasons, Millea’s lack of success on his retaliation claim 6
also provided no basis for adjusting the lodestar. The 7
FMLA’s fee-shifting provision only applies to claims on 8
which the plaintiff prevails. See 29 U.S.C. § 2617(a)(3). 9
Hours spent on unsuccessful fee-shifting claims, like those 10
spent on claims wholly ineligible for fee-shifting, must be 11
excluded from the reasonable hours spent on the case when 12
calculating the lodestar. 13
Finally, the district court impermissibly reduced its 14
initial fee award based on an incorrect conclusion that 15
Millea’s victory was “de minimis.” Millea, 2010 WL 126186, 16
at *6. The $612.50 award was not de minimis; to the 17
contrary, the award was more than 100% of the damages 18
Millea sought on that claim. It was not a derisory or 19
contemptuous rejection by the jury. The district court 20

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29
conflated a small damages award with a de minimis victory. 1
True, where the plaintiff manages to prevail on a 2
technicality in a mostly frivolous lawsuit, a court should 3
award no attorneys’ fees to discourage such lawsuits. 4
Farrar v. Hobby, 506 U.S. 103, 114-15 (1992). However, 5
“[t]hat is not to say that all nominal damages awards are 6
de minimis. Nominal relief does not necessarily a nominal 7
victory make.” Farrar, 506 U.S. at 120-21 (O’Connor, J., 8
concurring). FMLA claims are often small-ticket items, and 9
small damages awards should be expected without raising the 10
inference that the victory was technical or de minimis. If 11
an expense of time is required to obtain an award that is 12
not available by voluntary compliance or offer of 13
settlement, the expense advances the purposes of the 14
statute. Absent a purely technical victory in an otherwise 15
frivolous suit, litigation outcomes are only relevant to 16
fee award calculations when they are a direct result of the 17
quality of the attorney’s performance. Perdue, 130 S. Ct. 18
at 1673-74. And “the quality of an attorney’s performance 19
generally should not be used to adjust the lodestar because 20
considerations concerning the quality of a prevailing 21
party’s counsel’s representation normally are reflected in 22
the reasonable hourly rate” used to calculate the lodestar 23

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30
initially. Id. at 1673 (brackets and internal quotation 1
markets omitted). Even in those “rare” and “exceptional” 2
instances where an adjustment is warranted by the 3
characteristics of the attorney, “the trial judge should 4
adjust the attorney’s hourly rate in accordance with 5
specific proof linking the attorney’s ability to a 6
prevailing market rate.” Id. at 1674. In other words, 7
such adjustments should be made when calculating the 8
original lodestar figure. The court must also link such 9
adjustments to specific actions of the attorney that 10
indicate a level of performance not accounted for in the 11
prevailing market rate. Id. The district court erred by 12
adjusting the attorneys’ fee award based on the outcome of 13
the litigation without tying that outcome to the quality of 14
Millea’s attorneys and without making the adjustment within 15
the lodestar calculation. 16
17
C 18
The district court calculated its final fee award as a 19
proportion of the damages Millea was awarded. Millea, 2010 20
WL 126186, at *6. This was legal error. While a court 21
may, in exceptional circumstances, adjust the lodestar, 22
Perdue, 130 S. Ct. at 1673, it may not disregard it 23

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31
entirely. Especially for claims where the financial 1
recovery is likely to be small, calculating attorneys’ fees 2
as a proportion of damages runs directly contrary to the 3
purpose of fee-shifting statutes: assuring that civil 4
rights claims of modest cash value can attract competent 5
counsel. The whole purpose of fee-shifting statutes is to 6
generate attorneys’ fees that are disproportionate to the 7
plaintiff’s recovery. Thus, the district court abused its 8
discretion when it ignored the lodestar and calculated the 9
attorneys’ fees as a proportion of the damages awarded. 10
11
CONCLUSION 12
For the reasons discussed above, the district court’s 13
judgment is affirmed in part and vacated in part, and the 14
case is remanded for a retrial solely on Millea’s FMLA 15
retaliation claim and for recalculation of attorneys’ fees 16
in accordance with this opinion and the results of that 17
retrial. 18

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