Downey v. Strain

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 12, 2007

No. 06-30613 Charles R. Fulbruge III

Clerk

SUSAN DOWNEY

Plaintiff-Appellee-Cross-Appellant

v.

RODNEY J STRAIN, JR, Sheriff of Saint Tammany Parish Louisiana

Defendant-Appellant-Cross-Appellee

Appeals from the United States District Court

for the Eastern District of Louisiana

Before DAVIS, BARKSDALE, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant-Appellant-Cross-Appellee Sheriff Rodney Strain (“Strain”)

appeals from a jury verdict in favor of Plaintiff-Appellee-Cross-Appellant Susan

Downey (“Downey”) on Downey’s claim that Strain violated her rights under the

Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, by failing to

provide her with individualized notice that a period of leave would be counted

against her FMLA allowance and then transferring her to a different job upon

her return. Downey cross-appeals, alleging that the district court abused its

No. 06-30613

discretion by awarding her only two years of front pay. For the following

reasons, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1988, Downey was hired to work in the corrections division of the St.

Tammany Parish Sheriff’s Office. Subsequently, upon her request, she was

transferred to a position in the crime lab. In August 2000, Downey sustained a

work-related injury to her knee, and in May 2001, Downey sustained injuries to

her neck and shoulder in a motor vehicle accident. From November 7, 2002,

through March 16, 2003, Downey was on paid leave related to surgeries on her

knee and shoulder; on December 29, 2002, Strain notified Downey that he was

designating this as FMLA leave, effective December 29. Strain charged Downey

with 424 hours of FMLA leave for the period from December 29, 2002, through

March 17, 2003 (the “December 2002 leave”). This left Downey with fifty-two

hours1 of FMLA leave remaining through December 28, 2003, the last day of the

365-day FMLA leave period.

On June 18, 2003, Downey injured her left knee in a work-related incident,

but she continued to perform her duties through July 29, 2003. During this

period, she used eight hours of her FMLA leave, which left her with forty-four

hours. To have surgery related to the June 18 injury, Downey took a second

period of leave beginning July 30, 2003, and lasting through October 3, 2003 (the

“July 2003 leave”). Strain charged Downey with FMLA leave for this period,

though he did not specifically notify her that he would do so. As of August 7,

2003, Downey had exhausted her 480 hours of FMLA leave. However, as a

result of the other leave Strain provided, Downey was on paid leave through

October 3, 2003. When Downey returned to work, she was reassigned to the

1

It is not clear why Downey’s balance was fifty-two hours (subtracting the charged 424

hours from the FMLA allowance of 480 hours would appear to leave a balance of fifty-six

hours), but the parties stipulated to that figure and it is not relevant to this appeal.

2

No. 06-30613

corrections division. In her new position, she did not have some of the fringe

benefits she had in her previous position, such as overtime pay and the use of a

car.

Downey sued Strain in his official capacity, alleging violations of the

FMLA and several other statutes.2 The district court entered an order granting

summary judgment in favor of Strain on most of Downey’s claims, but it denied

summary judgment on her claim that Strain interfered with her rights under the

FMLA, in violation of 29 U.S.C. § 2615(a)(1), by failing to provide her with

individualized written notice that the July 2003 leave would be designated as

FMLA leave, as required by FMLA regulations. See 29 C.F.R. § 825.208(a)-

(b)(1). Downey contended that, had she been notified that her July 2003 leave

would be counted as FMLA leave, she would have postponed her knee surgery

to a time when it would not have caused her to exceed her FMLA allowance. The

district court entered an amended order noting that it was undisputed that

Downey did not receive individualized written notice that the July 2003 leave

would be treated as FMLA leave and leaving for the jury the question of whether

Downey was actually prejudiced by the lack of notice. The district court

instructed the jury that to prove prejudice, Downey had to show that (1) she

could have delayed the knee surgery from July 31, 2003, until December 22,

2003; (2) during this period, she would have been able to perform her full duties

in the crime lab; and (3) either it would not have been necessary for her to take

any FMLA leave during this period, or if it was, the leave would not have

exceeded five and a half work days and for each such day taken she would have

been able to delay her absence for surgery by an additional day.

2

Downey also brought claims under Title VII, 42 U.S.C. § 2000e; the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq.; and Louisiana statutes prohibiting gender and

disability discrimination. Those claims are not relevant to this appeal.

3

No. 06-30613

The jury returned a verdict in favor of Downey and awarded her $16,400

in compensatory back pay. The district court then awarded Downey two years

of front pay in the amount of $13,128 as well as reasonable attorney fees and

costs. Although Strain made a Rule 50(a) motion for judgment as a matter of

law at the close of evidence, he did not make a Rule 50(b) motion or a Rule 59

motion for a new trial after the jury’s verdict.

On appeal, Strain asserts that (1) because the regulations requiring

employers to provide individualized notice that leave will be counted as FMLA

leave are invalid, the district court erred in concluding that Downey did not

receive sufficient notice regarding her July 2003 leave; and (2) the jury ignored

significant evidence when it reached its conclusion that Downey was prejudiced

by the lack of notice. Downey cross-appealed, arguing that the district court

abused its discretion by awarding Downey only two years of front pay. We have

jurisdiction over this appeal of a final judgment of the United States District

Court under 28 U.S.C. § 1291.

II. DISCUSSION

A. Validity of the regulations requiring individualized notice

The FMLA guarantees eligible employees a total of twelve weeks of leave

in a one-year period when the leave is related to certain circumstances, such as

the birth of a child or the presence of a serious health condition. 29 U.S.C.

§ 2612(a)(1). Upon the employee’s timely return, the employer must reinstate

the employee in his or her previous position or an equivalent position. Id.

§ 2614(a)(1). The FMLA makes it unlawful for an employer to “interfere with,

restrain, or deny the exercise of” an employee’s FMLA rights. Id. § 2615(a)(1).

Employers who violate this provision are subject to consequential damages and

appropriate equitable relief. Id. § 2617(a)(1).

The FMLA contains a general notice provision requiring that employers

“keep posted, in conspicuous places . . . a notice . . . setting forth excerpts from,

4

No. 06-30613

or summaries of, the pertinent provisions of this subchapter and information

pertaining to the filing of a charge.” Id. § 2619. The FMLA itself does not

contain any more specific requirements governing notice to employees.

However, it contains a provision directing the Secretary of Labor (the

“Secretary”) to “prescribe such regulations as are necessary to carry out” the

FMLA. Id. § 2654. Pursuant to this directive, the Secretary issued regulations

requiring employers to provide employees with individualized notice when the

employers designate leave as FMLA leave. 29 C.F.R. § 825.208(a) provides, “In

all circumstances, it is the employer’s responsibility to designate leave, paid or

unpaid, as FMLA-qualifying, and to give notice of the designation to the

employee as provided in this section.” 29 C.F.R. § 825.208(b)(1) provides, “Once

the employer has acquired knowledge that the leave is being taken for an FMLA

required reason, the employer must promptly (within two business days absent

extenuating circumstances) notify the employee that the paid leave is designated

and will be counted as FMLA leave.” The notification must be “provided to the

employee no less often than the first time in each six-month period that an

employee gives notice of the need for FMLA leave.” Id. § 825.301(c).

Downey maintains that Strain interfered with her rights under the FMLA

when Strain failed to provide her with individualized notice, as required by these

regulations, that the July 2003 leave would be counted against her FMLA leave

allowance. Strain does not claim that he provided Downey with specific notice

regarding her July 2003 leave that complied with the regulations. Rather,

Strain argues that the regulations requiring individualized notice are invalid

and that therefore he was not required to provide Downey with individualized

notice regarding the July 2003 leave. He asserts that the notice he provided

Downey regarding the December 2002 leave was sufficient to inform her of her

rights under the FMLA.

5

No. 06-30613

Whether the notice regulations are valid is a legal question that this court

reviews de novo. See Herbel v. Comm’r of Internal Revenue, 129 F.3d 788, 790

(5th Cir. 1997). In determining whether an FMLA regulation is valid, this court

gives considerable weight to the judgment of the Secretary of Labor (the

“Secretary”) and may not substitute its own preference for a reasonable

alternative devised by the Secretary. See Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81, 86 (2002); Bellum v. PCE Constructors, Inc., 407 F.3d 734, 740

(5th Cir. 2005). A regulation will be given controlling weight unless it is

“arbitrary, capricious, or manifestly contrary to the statute.” Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

Neither the Supreme Court nor this court has specifically addressed the

validity of the FMLA’s individualized notice regulations. However, the Supreme

Court’s decision in Ragsdale is instructive. In Ragsdale, an employee was

granted and took thirty consecutive weeks of leave for treatment of Hodgkin’s

disease, during which time she was unable to work. 535 U.S. at 84-85, 90. Her

employer did not notify her that this leave would count against her twelve-week

FMLA entitlement. Id. at 85. Her condition persisted beyond the initial thirty

weeks, and when she did not return to work, her employer terminated her. Id.

She sued her employer, alleging that she was entitled to an additional twelve

weeks of leave based on a penalty regulation providing that if an employee takes

medical leave “‘and the employer does not designate the leave as FMLA leave,

the leave taken does not count against an employee’s FMLA entitlement.’” Id.

at 85 (quoting 29 C.F.R. § 825.700(a)). Her employer challenged the validity of

the penalty regulation. Id. at 85-86.

The Supreme Court struck down the penalty regulation, holding that

“[t]he challenged regulation is invalid because it alters the FMLA’s cause of

action in a fundamental way: It relieves employees of the burden of proving any

6

No. 06-30613

real impairment of their rights and resulting prejudice.” Id. at 90. The Court

noted,

To prevail under the cause of action set out in § 2617, an employee

must prove, as a threshold matter, that the employer violated

§ 2615 by interfering with, restraining, or denying his or her

exercise of FMLA rights. Even then, § 2617 provides no relief

unless the employee has been prejudiced by the violation.

Id. at 89. In finding that a showing of prejudice was required for a cause of

action under the FMLA, the Court relied on the language of the liability

provisions in 29 U.S.C. § 2617. Id. The Court stated, “The employer is liable

only for compensation and benefits lost ‘by reason of the violation,’ for other

monetary losses sustained ‘as a direct result of the violation,’ and for

‘appropriate’ equitable relief, including employment, reinstatement, and

promotion.” Id. (quoting 29 U.S.C. § 2617(a)(1)). The Court noted that the

penalty regulation at issue was “unconnected to any prejudice the employee

might have suffered from the employer’s lapse.” Id. at 88. It found that in the

case before it, applying the penalty regulation would allow the employee to sue

her employer under the FMLA even though she had not demonstrated that she

would have taken less leave had she received the required notice. Id. at 90-91.

The Ragsdale Court did “not decide whether the notice and designation

requirements are themselves valid or whether other means of enforcing them

might be consistent with the statute.” Id. at 96. However, the Court stated,

By its nature, the remedy created by Congress requires the

retrospective, case-by-case examination the Secretary now seeks to

eliminate. The purpose of the cause of action is to permit a court to

inquire into matters such as whether the employee would have

exercised his or her FMLA rights in the absence of the employer’s

actions. To determine whether damages and equitable relief are

appropriate under the FMLA, the judge or jury must ask what steps

the employee would have taken had circumstances been different.

7

No. 06-30613

Id. at 91. Moreover, when addressing the plaintiff’s contention that an

employer’s failure to give notice might sometimes burden an employee’s exercise

of his FMLA rights, the Court found that, although “[t]his position may be

reasonable, [] the more extreme one embodied in § 825.700(a) is not.” Id. at 90.

This court’s decision in Lubke v. City of Arlington provides some additional

guidance. 455 F.3d 489 (5th Cir. 2006). In that case, Lubke’s employer fired him

for missing two days of work without providing adequate medical certification

to justify his absence,3 and Lubke sued his employer under the FMLA. Id. at

493-94. Lubke contended that his employer could not rely on Lubke’s failure to

provide medical certification because the employer had not complied with

regulations specifying how employers must give notice to employees that the

employers require medical certification. Id. at 496-97; see 29 C.F.R.

§§ 825.301(b)(1), 305(b)-(d). The district court agreed with Lubke and applied

a sanction regulation stating that “[i]f an employer fails to provide notice in

accordance with the provisions of this section, the employer may not take action

against an employee for failure to comply with any provision required to be set

forth in the notice.” Lubke, 455 F.3d at 497; 29 C.F.R. § 825.301(f). On appeal,

this court assumed, without deciding, that the district court should not have

applied 29 C.F.R. § 825.301(f) as a sanction for the employer’s technical

noncompliance with the regulations governing requests for certification. Lubke,

455 F.3d at 497. However, applying the reasoning of Ragsdale, we found that

the error was harmless:

Ragsdale’s reasoning counsels that the district court could not

implement § 825.301(f) if the consequence of doing so was to afford

Lubke an FMLA remedy to which he was not otherwise entitled.

3

Under the FMLA, “[a]n employer may require that a request for leave . . . be

supported by a certification issued by the health care provider of the eligible employee

or . . . spouse . . . [and] [t]he employee shall provide, in a timely manner, a copy of such

certification to the employer.” 29 U.S.C. § 2613(a).

8

No. 06-30613

Absent such entitlement, Lubke could not demonstrate prejudice

from the City’s defective notice. The jury found, however . . . that

Lubke’s leave qualified under FMLA. Further, the City conceded

that had Lubke submitted the doctors’ letters earlier in its

investigatory process, it would have approved his FMLA leave.

Thus, Lubke clearly proved prejudice because, absent a finding . . .

that his medical certification was untimely as a matter of law, he

could have submitted the doctors’ reports and not been fired.

Id. at 497-98. As a result, we affirmed the judgment in favor of Lubke. Id. at

500.

The Third Circuit’s decision in Conoshenti v. Public Service Electric & Gas

Co., 364 F.3d 135 (3d Cir. 2004), provides further insight. In Conoshenti, an

employee was discharged after being absent from work for more than twelve

weeks. Id. at 140. The plaintiff sued his employer under the FMLA, arguing

that had the employer notified him of his FMLA rights as required by 29 C.F.R.

§ 825.208(a) and § 825.301(a)-(c), he would have structured his leave so that he

would not have exceeded twelve weeks of leave in a given FMLA period. Id. at

142-43. In concluding that the plaintiff stated a viable theory of recovery, the

Third Circuit noted that in light of the regulations imposing a duty to advise the

plaintiff of his FMLA rights, “[i]t follows . . . that [the plaintiff] will show an

interference with his right to leave under the FMLA, within the meaning of 29

U.S.C. § 2615(a)(1), if he is able to establish that this failure to advise rendered

him unable to exercise that right in a meaningful way, thereby causing injury.”

Id. at 143. The court found helpful the language in Ragsdale, which indicated

that the Supreme Court found “‘reasonable’” the suggestion that a failure to

advise of FMLA rights could constitute an interference with “‘an employee’s

exercise of basic FMLA rights in violation of § 2615.’” Id. (quoting Ragsdale, 535

U.S. at 89-90).

The reasoning of Ragsdale, Lubke, and Conoshenti supports the conclusion

that regulations are not arbitrary, capricious, or manifestly contrary to the

9

No. 06-30613

FMLA as long as they are enforced in a manner that is consistent with the

FMLA’s remedial scheme, which requires an employee to prove prejudice as a

result of an employer’s noncompliance. A regulation must not “relieve[]

employees of the burden of proving any real impairment of their rights and

resulting prejudice.” Ragsdale, 535 U.S. at 90. Rather, courts evaluating an

FMLA claim must conduct a “retrospective, case-by-case examination” that

addresses “whether the employee would have exercised his or her FMLA rights

in the absence of the employer’s actions.” Id. at 91.

Applying this reasoning to the case before us, we find that the

individualized notice regulations are valid as enforced here. This case is much

more like Lubke and Conoshenti than it is like Ragsdale. First, in contrast to

Ragsdale, in which the regulation at issue specified a remedy for the employer’s

noncompliance (additional leave beyond the twelve weeks prescribed by the

FMLA) regardless of whether the noncompliance prejudiced the employee, the

regulations at issue here do not. In this case, the employee whose employer

violated the individualized notice regulations still bears the burden of

demonstrating that her rights have been impaired and that she has been

prejudiced. Although the district court noted that Strain’s noncompliance was

undisputed, it still required Downey to prove that the noncompliance interfered

with her rights under the FMLA and thereby caused her prejudice before

providing her with a remedy. The district court properly enforced the

regulations by conducting the “case-by-case examination” described by the

Supreme Court in Ragsdale. Second, like the plaintiffs in Lubke and Conoshenti

and unlike the employee in Ragsdale, Downey proved that she was actually

prejudiced by her employer’s noncompliance with the regulations: had she

received individualized notice, she would have been able to postpone her surgery

to another FMLA period. This would have allowed her to exercise fully her right

10

No. 06-30613

to take twelve weeks of protected leave each year under the FMLA, and her

position in the crime lab would not have been jeopardized.

Strain urges us to follow the Eleventh Circuit’s decision in McGregor v.

Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999). In McGregor, an employee

claimed that because her employer had not notified her that her thirteen weeks

of employer-provided leave would run concurrently with her twelve weeks of

FMLA leave, she was entitled to be restored to her position after a fifteen-week

absence. Id. at 1307. She relied in part on 29 C.F.R. § 825.208(c), which

provides that when an employer fails to notify the employee that leave will be

designated as FMLA leave, “none of the absence preceding the notice to the

employee of the designation may be counted against the employee’s 12-week

FMLA leave entitlement.” 180 F.3d at 1307; 29 C.F.R. § 825.208(c). The court

held that the regulation was “invalid and unenforceable,” noting that the FMLA

statute “does not suggest that the 12 week entitlement may be extended” and

that “[w]here Congress wanted explicit notice provisions with significant

consequences, it provided for them.” 180 F.3d at 1308. It noted that the

regulations “add requirements and grant entitlements beyond those of the

statute” and “are inconsistent with the stated purpose of the statute,” which is

to “‘balance the demands of the workplace with the needs of families . . . in a

manner that accommodates the legitimate interests of employers.’” Id. (quoting

29 U.S.C. § 2601(b)(3)).

We decline to follow McGregor for several reasons. First, McGregor is of

limited usefulness because it preceded the Supreme Court’s decision in

Ragsdale, in which the Court emphasized the importance of conducting a case-

by-case examination of whether a plaintiff has been prejudiced by noncompliance

with a regulation. Second, the challenged regulation in McGregor involved 29

C.F.R. § 825.208(c), which provides for extension of the leave period due to an

employer’s technical noncompliance without reference to any prejudice suffered

11

No. 06-30613

by the employee. In light of Ragsdale, that provision would likely be invalid;

however, that provision is not at issue in this case. Finally, in McGregor, there

was no indication that the employer’s failure to give notice actually caused the

employee any prejudice regarding her ability to exercise her rights under the

FMLA.4

Strain also contends that language in this court’s decision in Hunt v.

Rapides Healthcare System, LLC, 277 F.3d 757 (5th Cir. 2001), supports his

position. In Hunt, an employee filed suit against her employer, claiming that

her employer violated the FMLA and notice regulations by failing to designate

her leave as FMLA leave until several weeks after it began and for failing to

restore her to her prior position upon her return. Id. at 762. She relied on 29

C.F.R. § 825.208(c), which prohibits an employer from retroactively designating

leave as FMLA leave. Id. at 767. We did not address the validity of the

regulation, but we stated, “If an employee has received her entitlements under

the FMLA, she does not have an FMLA claim regardless of the quality of notice

4

The other cases Strain cites in support of his position are inapposite because they

involved plaintiffs who did not necessarily show that they were prejudiced by their employers’

failure to notify them of their FMLA rights. Moreover, none of these cases are binding on this

court. See Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 F. App’x 688, 691 (3d Cir.

2002) (holding that an employee who did not present evidence that she could have returned

to work prior to the expiration of her FMLA leave allowance was not entitled to additional

leave merely because her employer had not properly provided her with notice that the leave

was designated as FMLA leave); Perkins v. Dollar Tree Stores, Inc., No. Civ.A. 2:04CV75-P-A,

2005 WL 1229695, at *5 (N.D. Miss. May 24, 2005) (concluding, in a case where the plaintiff

“received every benefit to which she was entitled under the FMLA,” that Ragsdale implicitly

invalidated 29 C.F.R. § 825.208(a)); Farina v. Compuware Corp., 256 F. Supp. 2d 1033, 1056-

57 (D. Ariz. 2003) (noting that under Ragsdale, a plaintiff “must show that she detrimentally

relied on and was prejudiced by Defendant’s improper notice” and that “[p]laintiff provides no

evidence that she was prejudiced”); Felder v. Winn-Dixie La., Inc., No. Civ.A.03-1438, 2003 WL

22966364, at *5 (E.D. La. Dec. 16, 2003) (holding, in a case where it was not clear whether the

plaintiff suffered prejudice from the lack of notice, that a plaintiff could not obtain

reinstatement based on lack of notice); Smith v. Blue Dot Servs. Co., 283 F. Supp. 2d 1200,

1205 (D. Kan. 2003) (holding that a plaintiff who was unable to return to work before his

FMLA leave expired did not allege any denial of an FMLA right but noting that Ragsdale left

open the possibility that employees could recover for notice violations on a case-by-case basis

if there was actual harm resulting from the violations).

12

No. 06-30613

that she received.” Id. at 767-68. This dictum does not help Strain. First, it

predates Ragsdale and Lubke, the cases that provide our current framework for

determining whether an employer’s noncompliance with a regulation gives rise

to a cause of action under the FMLA. Second, here, Downey did not receive all

of her entitlements under the FMLA; the jury found that had she received proper

notice, she would have restructured her leave in a way that allowed her to

receive those entitlements.

In sum, we hold that because Downey showed that Strain’s noncompliance

with the individualized notice regulations impaired her ability to exercise her

rights under the FMLA and thereby caused her prejudice, enforcement of the

notice regulations here is consistent with the FMLA’s remedial scheme. Thus,

the notice regulations are not arbitrary, capricious, or manifestly contrary to the

FMLA and are valid as enforced in this case.

B. Sufficiency of the evidence supporting the jury’s finding of prejudice

Strain maintains that the jury erred when it found that Downey was

prejudiced by Strain’s failure to provide her with notice regarding her second

period of absence. He argues that the jury either ignored or rejected testimony

by Downey’s treating physician showing that Downey would have been unable

to perform her job duties had she postponed her knee surgery until after

December 22, 2003. However, Strain waived his right to appeal on the grounds

of sufficiency of the evidence because he did not file a motion under Federal

Rule of Civil Procedure 50(b) for judgment as a matter of law after the jury’s

verdict. See Unitherm Food Sys., Inc. v. Swift-Ekrich, Inc., 546 U.S. 394, 400-

401 (2006).5

5

Strain’s argument that he is not challenging the overall sufficiency of the evidence,

but is instead asserting that the jury ignored or rejected a specific piece of evidence, is

unsupported by any authority and is without merit.

13

No. 06-30613

In Unitherm, the Supreme Court held that when a party files a Rule 50(a)

preverdict motion for judgment as a matter of law but files neither a Rule 50(b)

postverdict motion nor a Rule 59 motion for a new trial, the party is precluded

from seeking appellate review of the sufficiency of the evidence supporting the

verdict. Id. The Court held that the district court’s denial of a Rule 50(a) motion

cannot form the basis of a party’s appeal because such denial is “merely an

exercise of the District Court’s discretion, in accordance with the text of the Rule

and the accepted practice of permitting the jury to make an initial judgment

about the sufficiency of the evidence.” Id. at 406; see also FED. R. CIV. P. 50(a)

(“the court may determine” that there is no legally sufficient evidentiary basis

and “may grant a motion for judgment as a matter of law”) (emphasis added).

Strain asserts that such a motion was unnecessary because he filed a Rule 50(a)

preverdict motion and no additional evidence was introduced by either party

after that motion. Thus, he argues, renewing his motion when the district court

had already denied his previous motion based on the same evidence would have

been a “vain and useless” act. However, Strain cites no authority for this

proposition. Moreover, contrary to Strain’s assertion, Unitherm indicates that

a Rule 50(b) motion is necessary to preserve an argument for appellate review

even when a Rule 50(a) motion was denied after all the evidence was presented:

“Even at the close of all the evidence it may be desirable to refrain

from granting a motion for judgment as a matter of law despite the

fact that it would be possible for the district court to do so. If

judgment as a matter of law is granted and the appellate court holds

that the evidence in fact was sufficient to go to the jury, an entire

new trial must be had. If, on the other hand, the trial court submits

the case to the jury, though it thinks the evidence insufficient, final

determination of the case is expedited greatly. If the jury agrees

with the court’s appraisal of the evidence, and returns a verdict for

the party who moved for judgment as a matter of law, the case is at

an end. If the jury brings in a different verdict, the trial court can

grant a renewed motion for judgment as a matter of law. Then if

the appellate court holds that the trial court was in error in its

14

No. 06-30613

appraisal of the evidence, it can reverse and order judgment on the

verdict of the jury, without any need for a new trial. For this reason

the appellate courts repeatedly have said that it usually is desirable

to take a verdict, and then pass on the sufficiency of the evidence on

a post-verdict motion.”

546 U.S. at 405-06 (quoting 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2533, at 319) (2d ed. 1995) (footnote

omitted) (emphasis added).

Unitherm establishes that a party who wishes to appeal on grounds of

insufficient evidence must make a Rule 50(b) motion for judgment as a matter

of law after the jury’s verdict, even when the party has previously made a Rule

50(a) motion. Because Strain failed to make a Rule 50(b) motion, there is no

basis for this court to review his challenge to the sufficiency of the evidence.

C. Award of front pay

Downey argues that the district court erred in awarding her only two

years of front pay. We review the district court’s award of front pay for abuse of

discretion. Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir. 2001). The FMLA

provides that “[a]ny employer who violates section 2615 of this title shall be

liable to any eligible employee affected . . . for such equitable relief as may be

appropriate, including employment, reinstatement, and promotion.” 29 U.S.C.

§ 2617(a)(1)(B). Although reinstatement is the preferred equitable remedy, see

Giles, 245 F.3d at 489 n.27, the parties here stipulated that reinstatement was

not feasible. In exercising its discretion to award front pay, the district court

must consider whether an award of front pay is reasonable under the facts of the

case. Id. at 489. “Front pay can only be calculated through intelligent

guesswork, and we recognize its speculative character by according wide latitude

in its determination to the district courts.” Sellers v. Delgado Coll., 781 F.2d

503, 505 (5th Cir. 1986). This court has identified several factors to be

considered in determining the amount of a front pay award: (1) the length of

15

No. 06-30613

prior employment, (2) the permanency of the position held, (3) the nature of the

work, (4) the age and physical condition of the employee, (5) possible

consolidation of jobs, and (6) the myriad other non-discriminatory factors which

could validly affect the employer/employee relationship. Reneau v. Wayne

Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir. 1991).

Downey initially requested a front pay award of five years, and Strain

suggested an award of two to three years. In setting the award at two years, the

district court gave three reasons: (1) the uncertainty inherent in employment

in a political office (Sheriff Strain is an elected official), (2) the fact that Downey

had previously sought transfer from the crime lab, and (3) the speculative nature

of front pay. Downey argues that the district court’s reliance on each of these

factors was improper. First, she contends that her employment was stable,

noting that she had been employed in the sheriff’s office for eighteen years and

that there was no evidence in the record that she was so highly placed that she

could lawfully have been fired for political reasons. Second, she maintains that

the only reason she requested transfer from the crime lab was that she had

personal issues with her former supervisor and that his retirement prior to the

July 2003 leave eliminated any motivation she had to transfer. She argues that

there was no evidence of any conflict with her new supervisor aside from that

resulting from Downey’s lawsuit. Strain disputes this, claiming that Downey

actually had issues with the new supervisor. Third, Downey contends that the

speculative nature of front pay is not itself a reason for finding a particular

duration of an award of front pay.

We hold that the district court did not abuse its discretion in awarding

Downey two years of front pay. The district court’s examination of the likelihood

that the political nature of the sheriff’s office would impact the permanency of

Downey’s job was a proper part of the “intelligent guesswork” it must conduct.

See Decorte v. Jordan, No. Civ.A. 03-1239, 2005 WL 1431699, at *3 (E.D. La.

16

No. 06-30613

May 26, 2005) (noting that “the nature of employment in a political office such

as the District Attorney’s Office is subject to the vagaries of politics” and

awarding two years of front pay to plaintiffs who had worked in the District

Attorney’s Office). It was also a direct application of the second Reneau factor,

which directs the court to consider the permanency of the position held. The

district court’s consideration of Downey’s previous transfer requests was also

proper. Downey’s testimony suggests that her transfer requests were related to

a conflict with her former supervisor, and it is not clear from the record whether

Downey also had personal issues with her new supervisor or only with her

former supervisor. However, the mere fact that she had twice requested

transfers suggests that she was not completely dedicated to remaining in the

crime lab and was willing to initiate possible job changes. Finally, the district

court did not err in noting that the speculative nature of front pay factored into

its decision to award two years of front pay. See Burns v. Tex. City Ref., Inc., 890

F.2d 747, 753 n.4 (5th Cir. 1989) (“The longer the front pay period, the more

speculative the front pay award.”)

III. CONCLUSION

For the foregoing reasons, we hold that the FMLA regulations requiring

employers to provide individualized notice to employees when the employers

designate a period of leave as FMLA leave are valid as enforced in this case, that

Strain waived his right to appeal the jury’s conclusion that Strain’s failure to

comply with the regulations caused Downey prejudice, and that the district court

did not abuse its discretion in awarding Downey two years of front pay.

Therefore, we AFFIRM the judgment of the district court.

AFFIRMED.

17