holding that “the district particularly in light of the fact that this matter matters and court conferences, summary never reached the point of collective action judgment and related briefing, the bench trial, certification and because the results achieved and the instant fees motion. Additionally, are dramatically disproportionate to plaintiffs are awarded $1,737.00 in fees the fees requested”
How later courts described this case
- holding that “the district particularly in light of the fact that this matter matters and court conferences, summary never reached the point of collective action judgment and related briefing, the bench trial, certification and because the results achieved and the instant fees motion. Additionally, are dramatically disproportionate to plaintiffs are awarded $1,737.00 in fees the fees requested”
- finding that district court erred in reducing lodestar figure of $144,792 in FMLA case wherein plaintiff recovered only $612.50, because the factors relied upon by the district court, including the disproportion between the amount recovered and the fees sought, are already represented in the lodestar calculation via attorney time records
- holding that the “FMLA’s anti-retaliation provision has the same underlying purpose as Title VII” and applied Title VII’s standard for determining what constitutes a materially adverse employment action by an employer to the FMLA’s anti-retaliation provision”
- explaining that it is legal error to fail to calculate the 7Citations to “Bauman Decl.” refer to the Declaration of Michael Bauman, dated April 17, 2020, filed in support of plaintiff’s motion for damages, ECF No. 21-1. 9 lodestar “as a starting point”
Written by the judges who cited it.
The opinion
10-409-cv (L)
Millea v. Metro-North R.R. Co.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2010
4 (Argued: February 7, 2011 Decided: August 8, 2011)
5 Docket Nos. 10-409-cv (L); 10-564-cv (XAP)
6
7 - - - - - - - - - - - - - - - - - - - -x
8
9 CHRISTOPHER MILLEA,
10
11 Plaintiff-Appellant-Cross-
12 Appellee,
13
14 -v.- 10-409-cv (L)
15 10-564-cv (XAP)
16 METRO-NORTH RAILROAD COMPANY,
17
18 Defendant-Appellee-Cross-
19 Appellant.
20
21 - - - - - - - - - - - - - - - - - - - -x
22
23 Before: DENNIS JACOBS, Chief Judge,
24 PETER W. HALL, Circuit Judge,
25 SHIRA A. SCHEINDLIN, District Judge.*
26
27
28 Following a jury trial in the United States District
29 Court for the District of Connecticut (Bryant, J.),
*
The Honorable Shira A. Scheindlin, of the United
States District Court for the Southern District of New York,
sitting by designation.
1 plaintiff Christopher Millea won partial victory on his
2 claims under the Family Medical Leave Act (“FMLA”). He and
3 the defendant, Metro-North Railroad Co. (“Metro-North”),
4 cross-appeal. Millea argues that, on his retaliation claim,
5 the jury charge should have adopted the standard set forth
6 for Title VII retaliation in Burlington Northern & Sante Fe
7 Railway Co. v. White, 548 U.S. 53 (2006). Millea also
8 appeals the award of only $204 in attorneys’ fees on his one
9 successful claim, that Metro-North interfered in his
10 exercise of FMLA rights. Metro-North cross-appeals the
11 denial of its Rule 50 motion for judgment as a matter of law
12 on the interference claim. We affirm the district court’s
13 denial of Metro-North’s motion. Because the district court
14 erred in rejecting the Burlington Northern jury charge, and
15 this error prejudiced the plaintiff, we vacate and remand
16 for a new trial on the retaliation claim. We also vacate
17 the award of attorneys’ fees and remand for recalculation in
18 conformity with the lodestar method.
19
20 FOR APPELLANT: Joseph D. Garrison, Jr.
21 Garrison, Levin-Epstein, Chimes,
22 Richardson & Fitzgerald, P.C.
23 New Haven, CT
24
25 Charles C. Goetsch
26 Cahill Goetsch & Perry, P.C.
27 New Haven, CT
2
1 FOR APPELLEE: Charles A. Deluca
2 Beck S. Fineman
3 William N. Wright
4 Ryan Ryan Deluca LLP
5 Stamford, CT
6
7
8 DENNIS JACOBS, Chief Judge:
9
10 Following a jury trial in the United States District
11 Court for the District of Connecticut (Bryant, J.),
12 plaintiff Christopher Millea won partial victory on his
13 claims under the Family Medical Leave Act (“FMLA”). He and
14 the defendant, Metro-North Railroad Co. (“Metro-North”),
15 cross-appeal. Millea argues that, on his unsuccessful
16 retaliation claim, the jury charge should have adopted the
17 standard set forth for Title VII retaliation in Burlington
18 Northern & Sante Fe Railway Co. v. White, 548 U.S. 53
19 (2006). Millea also appeals the award of only $204 in
20 attorneys’ fees on his one successful claim, that Metro-
21 North interfered in his exercise of FMLA rights. Metro-
22 North cross-appeals the denial of its Rule 50 motion for
23 judgment as a matter of law on the interference claim. We
24 affirm the district court’s denial of Metro-North’s motion.
25 Because the district court erred in rejecting the
26 Burlington Northern jury charge, and this error prejudiced
27 the plaintiff, we vacate and remand for a new trial on the
3
1 retaliation claim. We also vacate the award of attorneys’
2 fees and remand for recalculation in conformity with the
3 lodestar method.
4
5 BACKGROUND
6 Christopher Millea suffers from severe post-traumatic
7 stress disorder as a result of combat as a Marine during
8 the First Gulf War. Notwithstanding psychotherapy and
9 medication, he suffers unpredictable panic attacks and
10 exhaustion that can require time off work on short notice.
11 In 2001, Millea began working for Metro-North, a tri-state
12 area commuter railroad. In 2005, he applied for special
13 leave under the FMLA; Metro-North approved his application
14 and granted him 60 days of intermittent FMLA leave for
15 2006.
16 The Incident. In the summer of 2006, Millea was
17 working in a Stamford storeroom under supervisor Earl
18 Vaughn, with whom Millea had developed a contentious
19 relationship. A phone conversation with Vaughn on
20 September 18, 2006, developed into a heated disagreement
21 that triggered one of Millea’s panic attacks. Millea
22 immediately left work to see his doctor. Because the
23 encounter with Vaughn led to the attack, Millea did not
4
1 inform Vaughn about his unforeseen FMLA leave; instead, he
2 advised Garrett Sullivan, the Lead Clerk, and asked
3 Sullivan to advise Vaughn, which Sullivan did. The next
4 day, Millea called Sullivan at 5:45am to report that he was
5 taking another FMLA day; Sullivan again relayed the
6 information to Vaughn. In both instances, Vaughn received
7 timely, although indirect, notice of Millea’s use of FMLA
8 leave.
9 Metro-North’s internal leave policy provides, in
10 relevant part, “[i]f the need for FMLA leave is not
11 foreseeable, employees must give notice to their supervisor
12 as soon as possible.” Because Millea did not notify Vaughn
13 of his two absences directly, Vaughn told Metro-North’s
14 payroll department to log Millea’s absences as non-FMLA
15 leave. Metro-North then opened an official investigation
16 of Millea, which resulted in a formal Notice of Discipline
17 being placed in his employment file for one year. The
18 Notice was expunged after a year, Millea having had no
19 further disciplinary incidents. After the investigation,
20 Millea voluntarily transferred to a custodian janitorial
21 job, which paid slightly less but was not supervised by
22 Vaughn.
5
1 The Complaint. Millea’s complaint against Metro-North
2 alleges that he never violated Metro-North’s internal leave
3 policy because he notified Vaughn (indirectly) of his
4 absences, or, in the alternative, that the aspect of Metro-
5 North’s policy he violated was void because it conflicted
6 with the regulations implementing the FMLA. Millea alleges
7 three claims:
8 1. Interference with Millea’s ability to take FMLA
9 leave. See 29 U.S.C. § 2615(a)(1) (“It shall be
10 unlawful for any employer to interfere with,
11 restrain, or deny the exercise of or the attempt
12 to exercise, any right provided under this
13 subchapter.”).
14
15 2. Retaliation against Millea for taking FMLA leave
16 by: (i) placing a notice of discipline in his
17 employment file for a year; (ii) requiring him to
18 update his FMLA certification; (iii) creating a
19 work environment that motivated him to transfer to
20 a lower paying job; (iv) delaying approval of his
21 bid for the lead custodian position in 2009; and
22 (v) subjecting him to heightened managerial
23 surveillance. See 29 U.S.C. § 2615(a)(2) (“It
24 shall be unlawful for any employer to discharge or
25 in any other manner discriminate against any
26 individual for opposing any practice made unlawful
27 by this subchapter.”).
28
29 3. Intentional infliction of emotional distress
30 (“IIED”).
31
32 The Answer. On the interference claim, Metro-North
33 answered that it was entitled to log Millea’s absences as
34 non-FMLA leave because he violated Metro-North’s legally
35 valid internal leave policy. On the retaliation claim,
6
1 Metro-North answered that none of the claimed acts of
2 retaliation was the result of Millea’s use of FMLA leave,
3 and none was materially adverse. On the IIED claim, Metro-
4 North answered that any violation of the FMLA was not done
5 intentionally or outrageously and so could not amount to
6 IIED.
7 The Trial. Millea’s suit against Metro-North was
8 tried in May 2009. Millea requested that the court charge
9 the jury on the definition of “materially adverse
10 employment action” using the standard articulated by the
11 Supreme Court in Burlington Northern & Santa Fe Railway Co.
12 v. White, 548 U.S. 53 (2006) (“Burlington Northern”), a
13 Title VII retaliation claim case. The court rejected the
14 proposed charge on the ground that this case involved the
15 FMLA, not Title VII, and instead issued an instruction with
16 a narrower definition of “materially adverse.”
17 The jury returned a verdict in favor of Millea on his
18 interference claim, awarding him $612.50 in lost wages and
19 other damages. The jury found in favor of Metro-North on
20 both the retaliation and IIED claims. Millea moved for
21 costs and attorneys’ fees, and the court awarded $204 in
22 attorneys’ fees and $18,643 in costs. Metro-North moved
23 for judgment as a matter of law on the interference claim
7
1 and for its costs associated with the retaliation and EEID
2 claims. The court denied these motions.
3 Both parties now appeal.
4
5 DISCUSSION
6 This appeal and cross-appeal together present three
7 questions. First, did the district court err in denying
8 Metro-North’s request for judgment as a matter of law on
9 Millea’s interference claim? Second, did the district
10 court commit nonharmless error when it rejected Millea’s
11 proposed retaliation instruction based on the Burlington
12 Northern standard? Third, did the district court abuse its
13 discretion in awarding Millea only $204 in attorneys’ fees
14 for his successful interference claim?
15
16 I
17 “We review a district court’s ruling on a Rule 50
18 motion de novo, and apply the same standard used by the
19 district court below.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d
20 Cir. 2004). Judgment as a matter of law is available only
21 if there is no “legally sufficient evidentiary basis” for a
22 reasonable jury to find for the prevailing party on that
23 claim. Fed. R. Civ. P. 50(a)(1). Judgment as a matter of
8
1 law is only granted when “(1) there is such a complete
2 absence of evidence supporting the verdict that the jury’s
3 findings could only have been the result of sheer surmise
4 and conjecture, or (2) there is such an overwhelming amount
5 of evidence in favor of the movant that reasonable and fair
6 minded persons could not arrive at a verdict against it.”
7 Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec.
8 Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (brackets and
9 internal quotation marks omitted).
10
11 A
12 Metro-North argues there is no legal basis on which
13 the jury could have concluded that Metro-North interfered
14 with Millea’s exercise of his FMLA rights. Metro-North
15 concedes that Millea was entitled to take FMLA leave and
16 that it disciplined Millea for his use of such leave, but
17 argues that such discipline was justified as a matter of
18 law by Millea’s failure to comply with Metro-North’s
19 internal leave policy requiring an employee to notify his
20 supervisor directly when FMLA leave is taken. There is no
21 dispute that a company may discipline an employee for
22 violating its internal leave policy as long as that policy
23 is consistent with the law; however, we conclude that, on
9
1 these facts, Metro-North’s internal leave policy is
2 inconsistent with the FMLA.
3 The FMLA generally requires employees to “comply with
4 the employer’s usual and customary notice and procedural
5 requirements for requesting leave.” 29 C.F.R. §
6 825.303(c). However, this requirement is relaxed in
7 “unusual circumstances” or where the company policy
8 conflicts with the law. Id.
9 The regulations implementing the FMLA provide that
10 when an employee’s need for FMLA leave is unforeseeable (as
11 Millea’s was), “[n]otice may be given by the employee’s
12 spokesperson (e.g., spouse, adult family member, or other
13 responsible party) if the employee is unable to do so
14 personally.” Id. § 825.303(a). Because this regulation
15 expressly condones indirect notification when the employee
16 is unable to notify directly, Metro-North’s policy
17 conflicts with the FMLA and is therefore invalid to the
18 extent it requires direct notification even when the FMLA
19 leave is unforeseen and direct notification is not an
20 option.
21 Whether Millea’s situation on September 2006
22 constituted an “unusual circumstance” in which he was
23 “unable” to personally notify Vaughn is a question of fact,
10
1 not of law. The jury found that Millea gave proper notice,
2 meaning his notice complied with the FMLA and all legally
3 valid aspects of Metro-North’s internal leave policy.
4 Neither the district court nor this Court may second-guess
5 this finding.
6
7 B
8 Metro-North also argues that the jury verdict on the
9 interference claim must be vacated because the district
10 court committed legal error by charging the jury that an
11 employer’s internal leave policy may not be more strict
12 than the requirements of the FMLA. Metro-North argues this
13 instruction was impermissibly broad and vague. We
14 disagree.
15 The district court charged the jury:
16 In determining whether [Millea’s] notice occurred
17 as soon as practicable, you must consider all of
18 the facts and circumstances of the situation. You
19 should note that under the FMLA, notice may be
20 given by the employee, by a family member, or
21 other responsible adult, such as a treating
22 physician or other medical professional. You
23 should also note that an employer may impose
24 customary rules and procedures for notification,
25 provided that they are not more stringent than the
26 requirements under the Family Medical Leave Act.
27
28 This instruction is not misleading: It correctly explains
29 that the FMLA authorizes indirect notification and that an
11
1 employer is free to implement internal notification rules
2 only to the extent those rules are not more strict than the
3 law allows.
4 Metro-North argues that the “not more stringent”
5 language is overly broad because companies may implement
6 internal leave policies more strict than the FMLA as long
7 as the “timing requirement” is not more strict than the
8 FMLA permits. This is incorrect: The FMLA limits
9 stringency, requiring certain latitude in terms of timing,
10 method of notification, etc. If the law expressly states
11 that an employee may do a thing, a company’s internal leave
12 policy may not prohibit it. In this case, the FMLA’s
13 implementing regulations state that an employee in Millea’s
14 position may notify his employer indirectly of his need for
15 unforeseen medical leave; a company’s internal leave policy
16 may not require otherwise. The jury instruction correctly
17 captured this idea.
18
19 C
20 Even if Millea prevails on his interference claim, he
21 would be entitled to no damages unless he suffered a
22 compensable loss as a result of the alleged interference.
23 The FMLA provides that an employer interfering with its
12
1 employee’s legitimate use of FMLA-protected leave “shall be
2 liable to [the] employee affected...for damages equal
3 to...the amount of...any wages, salary, employment
4 benefits, or other compensation denied or lost to such
5 employee by reason of the violation.” 29 U.S.C. §
6 2617(a)(1)(A)(i)(I). Metro-North argues that when it
7 logged Millea’s medical leave as “sick leave” instead of
8 “FMLA leave,” Millea suffered no compensable loss because
9 both types of leave were unpaid, and that it is therefore
10 entitled to judgment as a matter of law that it owes Millea
11 nothing.
12 It appears from the record that Metro-North never made
13 this argument before the district court. Its opposition to
14 Millea’s motion for attorneys’ fees implicitly conceded the
15 validity of the $612.50 damages award: It used this award
16 as the basis for its calculation of attorneys’ fees.
17 Arguments raised for the first time on appeal are deemed
18 waived. Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221
19 (2d Cir. 2006) (“[T]his court ordinarily will not hear
20 arguments not made to the district court.”). Having
21 tacitly accepted the validity of the damage award before
13
1 the district court, Metro-North waived this argument even
2 if it had merit, which is doubtful.2
3
4 II
5 Millea challenges the judgment dismissing his
6 retaliation claim on the ground that the jury instruction
7 defining “materially adverse action” constituted reversible
8 error. We review de novo a claim of an erroneous jury
9 instruction. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111,
10 115 (2d Cir. 2000). To justify a new trial, a jury
11 instruction must be both erroneous and prejudicial. Id. at
12 116. “A jury instruction is erroneous if it misleads the
13 jury as to the correct legal standard or does not
14 adequately inform the jury on the law.” Id. An erroneous
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
1 jury instruction is prejudicial unless “the court is
2 convinced that the error did not influence the jury’s
3 verdict.” Id.
4
5 A
6 Millea sought a charge using the definition of
7 “materially adverse employment action” articulated by the
8 Supreme Court in the Title VII lawsuit, Burlington Northern
9 & Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006). In
10 particular, Millea proposed that an adverse employment
11 action occurs when “a reasonable employee in the
12 plaintiff’s position would have found the alleged
13 retaliatory action materially adverse,” and that a
14 retaliatory action is “materially adverse” when the action
15 “would have been likely to dissuade or deter a reasonable
16 worker in the plaintiff’s position from exercising his
17 legal rights.”
18 The district court rejected Millea’s proposed
19 instruction, instead charging the jury:
20 An “adverse employment action” is a materially
21 adverse change in the terms and conditions of
22 employment. Examples of material adverse change
23 in the terms and conditions of employment are
24 termination, demotion, loss of benefits, or
25 significantly diminished responsibilities. An
26 alteration of job responsibilities and a mere
15
1 inconvenience are not examples of materially
2 adverse changes in the terms and conditions of
3 employment.
4 Millea argues that in light of the reasoning in Burlington
5 Northern, the district court’s definition of “materially
6 adverse” was impermissibly narrow and therefore erroneous.
7 We agree.
8 Burlington Northern expanded the definition of
9 “materially adverse employment action” for purposes of
10 Title VII retaliation claims. Now, a Title VII plaintiff
11 “must show that a reasonable employee would have found the
12 challenged action materially adverse, which in this context
13 means it well might have dissuaded a reasonable worker from
14 making or supporting a charge of discrimination.” 548 U.S.
15 at 68 (internal quotation marks omitted). The Court
16 rejected the proposition that an actionable act of
17 retaliation must relate to the specific terms and
18 conditions of the employee’s employment, id. at 61, and
19 construed “materially adverse action” broadly to include
20 changes in employment life outside of the terms and
21 conditions of employment. Id. The Court concluded that
22 only this broader definition fulfilled the purpose of Title
23 VII’s anti-retaliation provision: preventing employers
16
1 from deterring their employees from exercising their
2 legitimate legal rights. Id. at 68.
3 This rationale applies with comparable force to the
4 anti-retaliation provision of the FMLA. The FMLA’s anti-
5 retaliation provision has the same underlying purpose as
6 Title VII--and almost identical wording. Compare 29 U.S.C.
7 § 2615(a)(2) (“It shall be unlawful for any employer
8 to...discriminate against any individual for opposing any
9 practice made unlawful by this subchapter.”), with 42
10 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment
11 practice for an employer to discriminate against any of his
12 employees...because he has opposed any practice made an
13 unlawful employment practice by this subchapter.”).
14 We therefore join our sister circuits that have
15 considered this issue and apply the Burlington Northern
16 standard for materially adverse action to the FMLA context.
17 See Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th
18 Cir. 2008) (applying Burlington Northern anti-retaliation
19 standard to FMLA retaliation claims); Metzler v. Fed. Home
20 Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir.
21 2006) (same); McArdle v. Dell Prods., L.P., 293 F. App’x
22 331, 337 (5th Cir. 2008) (unpublished opinion) (per curiam)
23 (same); DiCampli v. Korman Cmtys., 257 F. App’x 497, 500-01
17
1 (3d Cir. 2007) (unpublished opinion) (same); Csicsmann v.
2 Sallada, 211 F. App’x 163, 167-68 (4th Cir. 2006)
3 (unpublished opinion) (per curiam) (same). For purposes of
4 the FMLA’s anti-retaliation provision, a materially adverse
5 action is any action by the employer that is likely to
6 dissuade a reasonable worker in the plaintiff’s position
7 from exercising his legal rights.
8 By instructing the jury that a “material adverse
9 action” is restricted solely to changes in the employee’s
10 terms and conditions of employment, the district court
11 committed legal error.
12
13 B
14 Millea further argues that the erroneous jury
15 instruction prejudiced him, and that retrial is required on
16 his retaliation claim. We agree.
17 Of the five retaliatory acts alleged by Millea, the
18 jury found only one causally related to Millea’s use of
19 FMLA leave: the placement of a formal letter of reprimand
20 in Millea’s employment file. The error in the district
21 court’s jury instruction is harmless as to the four other
22 actions due to lack of causation, and we affirm the
23 judgment in favor of Metro-North as to those four actions.
18
1 As for the letter of reprimand, Metro-North argues
2 that any error by the district court was harmless because
3 the adverse effect of the letter was not “material” even
4 under the Burlington Northern standard. We disagree.
5 The Burlington Northern materiality standard is
6 intended to “separate significant from trivial harms” so
7 that employee protection statutes such as Title VII and the
8 FMLA do not come to create “a general civility code for the
9 American workplace.” Burlington Northern, 548 U.S. at 68
10 (internal quotation marks omitted). To separate the
11 significant from the trivial, the Burlington Northern
12 standard employs an “objective” test, which considers
13 whether the action would deter a “reasonable employee” from
14 exercising his rights. Id. “[P]etty slights, minor
15 annoyances, and simple lack of good manners will not” give
16 rise to actionable retaliation claims. Id. In this
17 objective light, we think (and conclude that a reasonable
18 jury could decide) that a letter of reprimand would deter a
19 reasonable employee from exercising his FMLA rights. A
20 formal reprimand issued by an employer is not a “petty
21 slight,” “minor annoyance,” or “trivial” punishment; it can
22 reduce an employee’s likelihood of receiving future
23 bonuses, raises, and promotions, and it may lead the
19
1 employee to believe (correctly or not) that his job is in
2 jeopardy. A reasonable jury could conclude as much even
3 when, as here, the letter does not directly or immediately
4 result in any loss of wages or benefits, and does not
5 remain in the employment file permanently.
6 Because the erroneous jury instruction differs
7 materially from the proper jury instruction that Millea
8 proposed, and because a reasonable jury could conclude that
9 the letter of reprimand constitutes retaliation under the
10 proper jury instruction, we conclude that the error was
11 prejudicial.
12 Metro-North argues that any error was harmless in any
13 event because Millea suffered no lost wages, salary, or
14 employment benefits as a result of the alleged retaliation,
15 and that no retrial is needed because Millea would receive
16 no relief even if he prevailed. We disagree.
17 First, because Millea did not prevail on his
18 retaliation claim, the jury made no factual findings as to
19 whether Millea suffered any lost wages or benefits as a
20 result of Metro-North’s alleged retaliation. Under
21 § 2617(a)(1)(A), Millea is entitled to recover not just
22 lost wages and benefits but also any “actual monetary
23 losses sustained” as a direct result of Metro-North’s
20
1 retaliation. Millea has asserted that he sustained such
2 losses: As a result of Metro-North’s actions, he felt
3 compelled to transfer to a lower paying job, thereby losing
4 income. Millea should have an opportunity before the trial
5 court to show that the letter of reprimand--if the jury
6 determines that it constituted retaliation--caused this
7 loss (and others).
8 Second, even if Millea cannot show specific monetary
9 losses caused by the letter of reprimand, he may be
10 entitled to equitable relief under § 2617(a)(1)(B),
11 including any promotions or job transfers he may have been
12 denied. Again, if Millea convinces a jury that the letter
13 of reprimand constituted illegal retaliation, he deserves
14 an opportunity to pursue such equitable relief.
15 Finally, the success of Millea’s retaliation claim
16 affects the attorneys’ fees to which Millea is entitled
17 under the FMLA’s fee-shifting provision. After the trial,
18 the district court reduced the attorneys’ fees
19 significantly because Millea prevailed only on the least
20 significant of his three claims. Millea v. Metro-North
21 R.R. Co., No. 3:06-cv-1929, 2010 WL 126186, at *4-8 (D.
22 Conn. Jan. 8, 2010). This would change if Millea succeeded
23 on his retaliation claim at retrial.
21
1 In sum, we hold that the definition of “materially
2 adverse employment action” articulated by the Supreme Court
3 in Burlington Northern applies to FMLA retaliation claims.
4 The district court’s failure to instruct the jury using
5 this standard was an error that may have influenced the
6 verdict, so it is not harmless and necessitates a new
7 trial. We therefore vacate the judgment in favor of Metro-
8 North on Millea’s FMLA retaliation claim and remand for a
9 new trial on this claim alone. We affirm the judgment in
10 favor of Millea on his FMLA interference claim and the
11 judgment in favor of Metro-North on Millea’s IIED claim.
12
13 III
14 The FMLA directs that the district court “shall, in
15 addition to any judgment awarded to the plaintiff, allow a
16 reasonable attorney’s fee, reasonable expert witness fees,
17 and other costs of the action to be paid by the defendant.”
18 29 U.S.C. § 2617(a)(3).
19 We review attorneys’ fee awards for abuse of
20 discretion. McDaniel v. Cnty. of Schenectady, 595 F.3d
21 411, 416 (2d Cir. 2010). A district court abuses its
22 discretion if it (1) bases its decision on an error of law
23 or uses the wrong legal standard; (2) bases its decision on
22
1 a clearly erroneous factual finding; or (3) reaches a
2 conclusion that, though not necessarily the product of a
3 legal error or a clearly erroneous factual finding, “cannot
4 be located within the range of permissible decisions.” Id.
5 (internal quotation marks omitted).
6 Millea argues the district court abused its discretion
7 by calculating the fee award as a proportion of his
8 monetary recovery. We agree, and we therefore vacate the
9 fee award and remand for recalculation in accordance with
10 the lodestar method and this opinion.3
11
12 A
13 “The district court retains discretion to
14 determine...what constitutes a reasonable fee.” LeBlanc-
15 Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)
16 (internal quotation marks omitted). However, this
17 discretion is not unfettered, and when a prevailing party
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
1 is entitled to attorneys’ fees, the district court must
2 abide by the procedural requirements for calculating those
3 fees articulated by this Court and the Supreme Court.
4 Both this Court and the Supreme Court have held that
5 the lodestar--the product of a reasonable hourly rate and
6 the reasonable number of hours required by the case--
7 creates a “presumptively reasonable fee.” Arbor Hill
8 Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany,
9 522 F.3d 182, 183 (2d Cir. 2008); see also Perdue v. Kenny
10 A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010). While the
11 lodestar is not always conclusive, its presumptive
12 reasonability means that, absent extraordinary
13 circumstances, failing to calculate it as a starting point
14 is legal error. A detailed explanation of the lodestar
15 calculation is unnecessary, but compliance with the Supreme
16 Court’s directive that fee award calculations be “objective
17 and reviewable,” implies the district court should at least
18 provide the number of hours and hourly rate it used to
19 produce the lodestar figure. Perdue, 130 S. Ct. at 1674.
20 It is unclear whether the district court calculated
21 the lodestar. The opinion references Millea’s request for
22 $144,792 in attorneys’ fees, but does not explain how this
23 figure was calculated. Millea, 2010 WL 126186, at *6.
24
1
2 B
3 While a district court must calculate the lodestar, it
4 is not “conclusive in all circumstances.” Perdue, 130 S.
5 Ct. at 1673. A district court may adjust the lodestar when
6 it “does not adequately take into account a factor that may
7 properly be considered in determining a reasonable fee.”
8 Id. However, such adjustments are appropriate only in
9 “rare circumstances,” because the “lodestar figure
10 [already] includes most, if not all, of the relevant
11 factors constituting a reasonable attorney’s fee.” Id.
12 (internal quotation marks omitted). For example, a court
13 may not adjust the lodestar based on factors already
14 included in the lodestar calculation itself because doing
15 so effectively double-counts those factors. Instead, the
16 lodestar can be adjusted only by factors relevant to the
17 determination of reasonable attorneys’ fees that were not
18 already considered in the initial lodestar calculation.
19 The district court erred by adjusting the initial $144,792
20 figure--which is presumably the lodestar--by several
21 factors.
22 First, the district court reduced its initial figure
23 because it concluded Millea’s case was not particularly
25
1 complicated and “did not involve any novel legal issues
2 significant to the legal community.” Millea, 2010 WL
3 126186, at *5. “[T]he novelty and complexity of a case
4 generally may not be used as a ground for [adjusting the
5 lodestar]” because they are already included in the
6 lodestar calculation itself, being “fully reflected in the
7 number of billable hours recorded by counsel.” Perdue, 130
8 S. Ct. at 1673 (internal quotation marks and bracket
9 omitted). Thus, while a district court may not adjust the
10 lodestar based on these factors, it may use them to
11 determine the reasonable number of hours the case requires.
12 That is a permissible consideration and one that a trial
13 judge is particularly well-situated to evaluate.
14 Second, the district court impermissibly reduced its
15 initial figure because it concluded that the interference
16 claim--the only claim on which Millea prevailed--had no
17 pubic policy significance. Millea, 2010 WL 126186, at *6.
18 By enacting a fee-shifting provision for FMLA claims,
19 Congress has already made the policy determination that
20 FMLA claims serve an important public purpose
26
1 disproportionate to their cash value. We cannot second-
2 guess this legislative policy decision.4
3 Third, the district court impermissibly reduced its
4 initial award because Millea was unsuccessful on his
5 retaliation and IIED claims. Millea, 2010 WL 126186, at
6 *5-6. Millea’s lack of success on the IIED claim provides
7 no reason to adjust the lodestar because the lodestar
8 should have already excluded this claim. When calculating
9 a lodestar, the number of hours spent on a case should
10 include only those hours spent on claims eligible for fee-
11 shifting. Hours spent solely on common law claims and
12 statutory claims not subject to fee-shifting must be
13 excluded to reflect the default rule that “each party must
14 pay its own attorney’s fees and expenses.”5 Perdue, 130 S.
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
1 Ct. at 1671. Excluding these ineligible claims prevents
2 abuse: Plaintiffs should not be able to inject frivolous
3 or borderline frivolous fee-shifting claims into a
4 litigation in order to collect attorneys’ fees on claims
5 for which fee-shifting is not available. For similar
6 reasons, Millea’s lack of success on his retaliation claim
7 also provided no basis for adjusting the lodestar. The
8 FMLA’s fee-shifting provision only applies to claims on
9 which the plaintiff prevails. See 29 U.S.C. § 2617(a)(3).
10 Hours spent on unsuccessful fee-shifting claims, like those
11 spent on claims wholly ineligible for fee-shifting, must be
12 excluded from the reasonable hours spent on the case when
13 calculating the lodestar.
14 Finally, the district court impermissibly reduced its
15 initial fee award based on an incorrect conclusion that
16 Millea’s victory was “de minimis.” Millea, 2010 WL 126186,
17 at *6. The $612.50 award was not de minimis; to the
18 contrary, the award was more than 100% of the damages
19 Millea sought on that claim. It was not a derisory or
20 contemptuous rejection by the jury. The district court
lodestar calculation because they would have been expended
even if the plaintiff had not included non-fee-shifting
claims in his complaint.
28
1 conflated a small damages award with a de minimis victory.
2 True, where the plaintiff manages to prevail on a
3 technicality in a mostly frivolous lawsuit, a court should
4 award no attorneys’ fees to discourage such lawsuits.
5 Farrar v. Hobby, 506 U.S. 103, 114-15 (1992). However,
6 “[t]hat is not to say that all nominal damages awards are
7 de minimis. Nominal relief does not necessarily a nominal
8 victory make.” Farrar, 506 U.S. at 120-21 (O’Connor, J.,
9 concurring). FMLA claims are often small-ticket items, and
10 small damages awards should be expected without raising the
11 inference that the victory was technical or de minimis. If
12 an expense of time is required to obtain an award that is
13 not available by voluntary compliance or offer of
14 settlement, the expense advances the purposes of the
15 statute. Absent a purely technical victory in an otherwise
16 frivolous suit, litigation outcomes are only relevant to
17 fee award calculations when they are a direct result of the
18 quality of the attorney’s performance. Perdue, 130 S. Ct.
19 at 1673-74. And “the quality of an attorney’s performance
20 generally should not be used to adjust the lodestar because
21 considerations concerning the quality of a prevailing
22 party’s counsel’s representation normally are reflected in
23 the reasonable hourly rate” used to calculate the lodestar
29
1 initially. Id. at 1673 (brackets and internal quotation
2 markets omitted). Even in those “rare” and “exceptional”
3 instances where an adjustment is warranted by the
4 characteristics of the attorney, “the trial judge should
5 adjust the attorney’s hourly rate in accordance with
6 specific proof linking the attorney’s ability to a
7 prevailing market rate.” Id. at 1674. In other words,
8 such adjustments should be made when calculating the
9 original lodestar figure. The court must also link such
10 adjustments to specific actions of the attorney that
11 indicate a level of performance not accounted for in the
12 prevailing market rate. Id. The district court erred by
13 adjusting the attorneys’ fee award based on the outcome of
14 the litigation without tying that outcome to the quality of
15 Millea’s attorneys and without making the adjustment within
16 the lodestar calculation.
17
18 C
19 The district court calculated its final fee award as a
20 proportion of the damages Millea was awarded. Millea, 2010
21 WL 126186, at *6. This was legal error. While a court
22 may, in exceptional circumstances, adjust the lodestar,
23 Perdue, 130 S. Ct. at 1673, it may not disregard it
30
1 entirely. Especially for claims where the financial
2 recovery is likely to be small, calculating attorneys’ fees
3 as a proportion of damages runs directly contrary to the
4 purpose of fee-shifting statutes: assuring that civil
5 rights claims of modest cash value can attract competent
6 counsel. The whole purpose of fee-shifting statutes is to
7 generate attorneys’ fees that are disproportionate to the
8 plaintiff’s recovery. Thus, the district court abused its
9 discretion when it ignored the lodestar and calculated the
10 attorneys’ fees as a proportion of the damages awarded.
11
12 CONCLUSION
13 For the reasons discussed above, the district court’s
14 judgment is affirmed in part and vacated in part, and the
15 case is remanded for a retrial solely on Millea’s FMLA
16 retaliation claim and for recalculation of attorneys’ fees
17 in accordance with this opinion and the results of that
18 retrial.
31