Neel v. Mid-Atlantic of Fairfield, LLC
Filing
107
MEMORANDUM OF DECISION. Signed by Magistrate Judge Stephanie A Gallagher on 8/9/12. (hmls, Deputy Clerk)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ELIZABETH J. NEEL,
Plaintiff,
v.
MID-ATLANTIC OF FAIRFIELD, LLC,
Defendant.
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Case No. SAG-10-cv-405
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MEMORANDUM OF DECISION
Plaintiff Elizabeth J. Neel, a licensed nursing home administrator, sued her former
employer Mid-Atlantic of Fairfield, LLC (“Mid-Atlantic”) for violation of the Family and
Medical Leave Act (“FMLA” or “the Act”). Am. Compl. ¶¶ 10-14. Mid-Atlantic owns the
Fairfield Nursing and Rehabilitation Center, the long-term care facility at which Ms. Neel
worked. Mem. 1 (Bredar, J.), [ECF No. 25]. District Judge James K. Bredar, who was assigned
this case for trial, granted summary judgment in Ms. Neel‟s favor on April 20, 2011. Mem. 20.
Judge Bredar concluded that
Mid-Atlantic interfered with Neel‟s FMLA rights by failing to provide her proper
notice of its unambiguous intent to deny restoration, by failing to explain to her
the basis for its determination that restoration would cause Mid-Atlantic
substantial and grievous economic injury to its operations, and by failing to offer
her a reasonable time in which to return to work after notification of its intent to
deny restoration. . . . Mid-Atlantic had no legitimate basis for denying restoration
of Neel‟s job to her.
Id. at 18. Judge Bredar also determined that Mid-Atlantic unlawfully terminated Ms. Neel
because she had taken FMLA leave. Id. at 19. The case proceeded to trial to ascertain the
remedies available to Ms. Neel. Id. at 20. The parties consented to referral of the case to a
magistrate judge. [ECF No. 69]. This Court tried the case on February 22, 23, and 24, 2012, for
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the sole purpose of determining Ms. Neel‟s damages and the appropriate remedies. (ECF Nos.
85, 86, 88.)
For the following reasons, the Court finds that Mid-Atlantic owes Ms. Neel $253,340.76
in damages, plus reasonable attorneys‟ fees.
I.
Findings of Fact
The Court finds the facts stated herein based upon its evaluation of the evidence,
including the credibility of witnesses, and the inferences that the Court has found reasonable to
draw from the evidence.
1. Ms. Neel is a nursing home administrator licensed by the State of Maryland. Testimony
of Elizabeth Neel (“Neel Test.”) 20:4-9, Feb. 22, 2012.
2. Ms. Neel has worked in assisted living facilities since at least 1999. Neel Test. 21:5-6.
3. In February, 2002, Ms. Neel was hired by HCR ManorCare for the company‟s
administrator-in-training program. Neel Test. 21:6-7; Def.‟s Exh. 33.
4. In April, 2003, after Ms. Neel had obtained her administrator‟s license, she became the
licensed nursing home administrator for HCR ManorCare‟s Dulaney facility in Towson,
Maryland. Ms. Neel worked at ManorCare‟s Dulaney facility for approximately nineteen
(19) months. Neel Test. 21:8-13, 66:9-15; Def.‟s Exh. 33.
5. In November, 2004, Ms. Neel became the licensed nursing home administrator for HCR
ManorCare‟s Roland Park facility in Baltimore, Maryland.
Ms. Neel worked at
ManorCare‟s Roland Park facility for approximately sixteen (16) months. Neel Test.
21:10-13, 66:2-8; Def.‟s Exh. 33.
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6. Ms. Neel left her position at ManorCare‟s Roland Park facility when she was recruited to
become an administrator at one of FutureCare Health & Management‟s facilities. Neel
Test. 21:13-20.
7. Ms. Neel worked at FutureCare‟s Chesapeake facility for approximately twenty-six (26)
months. Ms. Neel served as the care manager of the facility for four (4) months, then
became the facility‟s licensed nursing home administrator. Neel Test. 21:6-22:1, 66:6-8;
Def.‟s Exh. 33.
8. In May, 2008, Mid-Atlantic hired Ms. Neel to serve as the licensed nursing home
administrator for the Fairfield Nursing and Rehabilitation Center. Neel Test. 21:25-22:1.
9. Mid-Atlantic is a subsidiary of Mid-Atlantic Health Care, LLC. Testimony of Jeff Grillo
(“Grillo Test.”), 5:10-17.
10. The Fairfield Nursing and Rehabilitation Center is located at 1454 Fairfield Loop Road in
Crownsville, Maryland. Def.‟s Exh. 9.
11. When Ms. Neel was hired by Mid-Atlantic, her compensation package included:
$120,000 annual salary; a bonus of up to 25% of her previous year‟s earnings; health
insurance; and eligibility for a 401(k) plan after one year of service. Neel Test. 22:12-17;
Pl.‟s Exh. 1.
12. Ms. Neel‟s salary was subject to increase following annual performance evaluations.
These performance evaluations were supposed to be held each May, near the anniversary
of Ms. Neel‟s employment. Testimony of Traci Alley (“Alley Test.”), 192:16-23, Feb.
22, 2012.
13. From May, 2008 through December, 2008, Ms. Neel earned $71,538.30 in gross salary,
paid out in bi-weekly installments of $4,615.38. Neel Test. 24:11-14; Pl.‟s Exh. 2, 3.
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14. In April, 2009, Ms. Neel received a bonus of $10,731.00, which represented fifteen (15)
percent of her 2008 yearly gross earnings. Neel Test. 25:5-17.
15. Ms. Neel also received a three (3) percent salary increase in 2009. Ms. Neel‟s salary was
paid out in bi-weekly installments of $4,754.40, totaling $123,614.00. Neel Test. 25:2126:9, 30:9-11; Pl‟s Exh. 4; see also Def.‟s Exh. 45.
16. While employed at Mid-Atlantic, Ms. Neel received individual health insurance benefits
from Kaiser Permanente. Mid-Atlantic paid Ms. Neel‟s entire health insurance premium
of $541.22 per month. Ms. Neel did not contribute to her health insurance premium.
Neel Test. 27:4-15; Pl.‟s Exh. 5.
17. As of December 1, 2009, Mid-Atlantic required that its employees contribute to their
health insurance premiums. Alley Test., 179:21-180:10.
18. Had Ms. Neel continued to be employed at Mid-Atlantic, she would have had to
contribute $50 per pay period to her health insurance premium, beginning with the first
pay period in December 2009. Alley Test., 180:7-10.
19. Ms. Neel was married on September 25, 2009. Neel Test. 27:1.
20. After her wedding, Ms. Neel planned to add her husband to her health insurance coverage
at Mid-Atlantic. However, Ms. Neel did not add her husband to her health insurance plan
in the time period between returning from her honeymoon and leaving on her approved
FMLA leave. Neel Test. 28:2-8.
21. When she left for her unpaid FMLA leave, Ms. Neel‟s intention was to add her husband
to her health insurance coverage when she returned to work. Neel Test. 28:2-8.
22. Under the terms of Mid-Atlantic‟s health insurance plan, insured employees may not
make changes to their coverage at any time. Rather, those insured employees who wish
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to add a spouse to their plan must do so within thirty (30) days of their marriage. Alley
Test., 164:4-15.
23. On October 5, 2009, Ms. Neel notified Mid-Atlantic that she needed to take unpaid
FMLA leave to treat a neck injury she had suffered. Alley Test., 162:20-25.
24. Also on October 5, 2009, Mid-Atlantic Health Care‟s chief operating officer, Jeff Grillo,
and the company‟s human resources director, Traci Alley, spoke with employment
attorney Laura Rubenstein regarding Ms. Neel‟s FMLA request. Testimony of Laura
Rubenstein (“Rubenstein Test.”), 8:10-11, 10:1-16, Feb. 24, 2012; Grillo Test., 21:5-16;
Alley Test., 165:6-169:24.
25. Ms. Alley is very familiar with the FMLA, having attended seminars on the topic, read
both the Act and its accompanying regulations, and researched FMLA-related issues on
websites operated by the U.S. Department of Labor and the Equal Employment
Opportunity Commission. Alley Test., 151:6-152:4.
26. Ms. Rubenstein is also very familiar with FMLA and its implementing regulations, as she
gives advice to clients on the Act, keeps abreast of current case law, lectures and teaches
seminars about the Act, has assisted in drafting a book on the Act, and has read the Act
and its implementing regulations more than once. Rubenstein Test. 6:1-7:17.
27. During their October 5 conversation, Ms. Rubenstein, Ms. Alley, and Mr. Grillo
determined that Ms. Neel qualified as a “key employee” under the Act. They further
determined that Mid-Atlantic would have to grant FMLA leave to Ms. Neel, but that the
company need not necessarily restore Ms. Neel to her position after her FMLA leave
ended. Rubenstein Test., 14:2-7.
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28. Ms. Neel began her unpaid FMLA leave on October 6, 2009. She expected to return to
work at Mid-Atlantic in December, 2009. Neel Test. 28:2-24, 30:9-30:11; Neel Dep.
99:8-101:8, 115:14-16, Sept. 28, 2010.
29. During her absence from work, Ms. Neel kept her supervisor, Jeff Grillo, and MidAtlantic human resources personnel apprised of both her medical recovery and the date
by which she expected to return to work. Def.‟s Exh. 8.
30. On November 25, 2009, Ms. Neel emailed Ms. Alley and Mr. Grillo to inform them that
she expected her doctor to approve her return to work on or around December 14, 2009.
Def.‟s Exh. 8.
31. After receiving Ms. Neel‟s November 25 email, Ms. Alley again sought Ms. Rubenstein‟s
advice. Alley Test. 174:15-177:1.
32. As a result of her November 25 conversation with Ms. Alley, Ms. Rubenstein prepared a
letter to Ms. Neel under Ms. Alley‟s signature. That letter, dated December 1, 2009,
noted that Mid-Atlantic had identified Ms. Neel as a key employee under FMLA and had
notified her of her key employee status in October, 2009. The December 1 letter also
stated that Mid-Atlantic had “identified a successor” to Ms. Neel‟s position. Pl.‟s Exh. 6.
33. On December 9, 2009, Ms. Neel again wrote to Ms. Alley and Mr. Grillo. In this email,
she stated that her doctor had released her to return to work without restrictions on
December 16, 2009. Def.‟s Exh. 8.
34. After receiving the December 9 email, Ms. Alley again consulted Ms. Rubenstein. As a
result of their conversation, Ms. Rubenstein prepared another letter to Ms. Neel that was
sent under Ms. Alley‟s signature on December 11, 2009. Rubenstein Test. 22:22-25:12.
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35. The December 11 letter stated that, “Your position has been filled. At this time, there are
no alternative openings for you at the facility.” The letter informed Ms. Neel that her
“effective separation date of employment with Mid-Atlantic is December 2, 2009.”
Def.‟s Exh. 9.
36. After Ms. Neel received the December 11 letter informing her of her separation date from
Mid-Atlantic, Ms. Neel launched a search for a new job. Neel Test. 31:11-23.
37. Ms. Neel‟s job search spanned several months. During that time, she looked for longterm care jobs on CareerBuilder.com, Monster.com, and Jobs.com; contacted colleagues
in the industry; sent letters to long term care companies that did not have published job
openings; and applied for jobs online. Neel Test. 31:16-39:1.
38. Ms. Neel applied for the following positions, among others:
a. Director of electronic records, MRI Network;
b. Director of operations, Chimes Baltimore;
c. Benefits manager, Bravo Health;
d. Hospital liaison, Mid-Atlantic of Fairfield;
e. Interim program manager, Bravo Health;
f. Director of case management, a staffing solutions group;
g. Medical records site coordinator;
h. Director of health operations, KePRO;
i. Provider relations representative, United Healthcare;
j. Health sales representative, Bravo Health;
k. Corporate wellness director;
l. Executive director of assisted living, Lighthouse Corporation; and
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m. Licensed nursing home administrator, Collington Episcopal Life Care
Community.
Neel Test. 20:7-8, 35:2-44:4.
39. In December, 2009, Ms. Neel began training to become an independent insurance broker.
Neel Test. 39:19-40:7.
40. Ms. Neel became an independent insurance broker with Insphere Insurance Solutions in
February, 2010. Neel Test. 40:4-7.
41. Ms. Neel earned $7,182.23 in gross profits as an insurance broker with Insphere. On her
2010 tax return, she reported related expenses in the amount of $11,406.00. According to
Ms. Neel‟s 2010 tax return, her work as an insurance broker resulted in a net loss. Pl.‟s
Exhs. 15, 16; Neel Test. 52:8-21.
42. In June, 2010, Ms. Neel was offered a position as a corporate wellness director at a
company located near Rockville, Maryland. Neel Test. 43:4-17, 67:7-13.
43. The corporate wellness director position included a salary of $75,000-$80,000 per year.
Neel Test. 43:4-17, 67:7-13.
44. Ms. Neel rejected the corporate wellness director position that she was offered because
she felt it was too far away from her home in Severna Park, Maryland. Ms. Neel believed
that her daily commute to the company‟s offices would have been about ninety minutes
in each direction. Neel Test. 30:1, 43:7-13.
45. In late July or early August of 2010, Ms. Neel learned that she was one of the two final
candidates for a position as the executive director of an assisted living community run by
the Lighthouse Corporation (“Lighthouse”). Neel Test. 43:18-25.
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46. The executive director position at the Lighthouse community offered a salary of about
$80,000 per year. Neel Test. 44:8.
47. The Lighthouse community was located in an area that was a “fair drive” from Ms.
Neel‟s home. The community also was struggling with a resident population that fell
below industry-wide standards. Neel Test. 44:5-7.
48. At the same time that Ms. Neel was being considered for the position at the Lighthouse
community, she was also being considered for a position as the licensed nursing home
administrator for the Collington Episcopal Life Care Community (“Collington”). Neel
Test. 43:25-44:18.
49. As compensation for its licensed nursing home administrator position, Collington offered
a $95,000 annual salary, performance-based annual bonuses of up to fifteen (15) percent,
health insurance benefits, and paid time off. Neel Test. 44:12-18.
50. Ms. Neel withdrew her application for the Lighthouse position when she learned that she
was the final candidate for the Collington position. Ms. Neel chose to abandon her
candidacy for the Lighthouse position because she believed that she would likely be
offered the Collington position, and because she preferred Collington‟s benefits, location,
and organizational health. Neel Test. 44:3-18, 67:14-68:10.
51. Collington‟s executive director offered Ms. Neel the licensed nursing home administrator
position in a letter dated August 25, 2010. Pl.‟s Exh. 13.
52. Ms. Neel accepted Collington‟s offer, and began work at Collington on September 1,
2010. She remained employed at Collington through the date of this trial. Pl.‟s Exh. 13;
Neel Test. 51:18-23.
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53. Initially, Ms. Neel received bi-weekly gross salary payments of $3,653.85 from
Collington. Pl.‟s Exh. 13.
54. Ms. Neel has received two bonuses while at Collington. Neel Test. 51:5-16.
55. From September 1, 2010 through December 31, 2010, Ms. Neel earned $27,645.11 from
Collington. Pl.‟s Exh. 14.
56. From January 1, 2011 through December 31, 2011, Ms. Neel earned $122,075.17 from
Collington. Pl.‟s Exh. 18.
57. In September, 2011, Ms. Neel received a five (5) percent salary increase from Collington.
Ms. Neel‟s current salary is $3,836.54 per biweekly pay period, or $99,750.04 per year.
Pl.‟s Exh. 17; Neel Test. 52:22-53:14.
58. After a ninety (90) day waiting period, on December 1, 2010, Ms. Neel became eligible
for and enrolled in the health insurance plan that Collington offers. Neel Test. 50:11-18.
59. Ms. Neel‟s health insurance benefits extend to both herself and her husband. Neel Test.
50:19-24.
60. Ms. Neel contributes $128.59 per biweekly pay period to her health insurance coverage.
Pl.‟s Exh. 17.
61. Annually, Ms. Neel contributes $3,343.34 to the cost of the health insurance that she and
her husband receive through Collington. See id.
62. The health insurance coverage Ms. Neel receives through Collington is comparable to the
health insurance she received through Mid-Atlantic in terms of medical treatment
coverage and co-payment costs. Neel Test. 50:25-51:4.
63. After Ms. Neel lost her job at Mid-Atlantic, she obtained individual health insurance
coverage through COBRA. Neel Test. 44:19-23.
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64. Ms. Neel paid $981.03 for COBRA insurance coverage from December 10, 2009 through
April 30, 2010. Pl.‟s Exh. 10; Neel Test. 45:11-46:1.
65. Ms. Neel‟s COBRA insurance coverage was terminated effective April 30, 2010 because
her May, 2010 payment check bounced. Pl.‟s Exh. 10; Neel Test. 44:23-45:10.
66. After her COBRA coverage was terminated, Ms. Neel sought to obtain health insurance
coverage from alternative sources. Neel Test. 46:2-15.
67. Between May 1, 2010 and August 1, 2010, Ms. Neel had no health insurance coverage.
Neel Test. 46:10-15.
68. While Ms. Neel was uninsured, she continued to be treated for her neck injuries. These
medical treatments, which were administered in May, June, and July, 2010, cost
$1,914.82. Neel Test. 46:16-47:17; Pl.‟s Exh. 11.
69. Ms. Neel paid for this medical care herself. Had she had health insurance coverage
during the relevant time period, her health insurance would have paid for her treatment.
Neel Test. 46:16-21.
70. Ms. Neel was accepted into the Maryland Health Insurance Program (“MHIP”), a staterun insurance program, effective August 1, 2010. Neel Test. 46:4-9.
71. Ms. Neel paid a total of $1,280.00 ($320.00 per month) for MHIP coverage from August
1, 2010 through November 30, 2010. Pl.‟s Exh. 12; Neel Test. 48:21-23.
72. Ms. Neel cancelled her MHIP health insurance on November 30, 2010, because she
obtained employer-based health insurance that began on December 1, 2010. Neel Test.
48:17-20.
73. Mid-Atlantic froze all employee salaries effective February 1, 2010. Alley Test. 190:1119; Def.‟s Exh. 17.
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74. In the letter announcing that pay raises would be suspended, the CEO of Mid-Atlantic
Healthcare, LLC, Mid-Atlantic‟s parent company, stated that he would re-visit the issue
every six months and would reinstate employee raises as soon as possible. Def.‟s Exh.
17.
75. At Mid-Atlantic, the turnover rate for licensed nursing home administrators is between
two and three years. The average length of an administrator‟s employment at MidAtlantic is 2.8 years. Alley Test. 153:22-154:12; Grillo Test. 10:18-20.
76. At some time immediately prior to this trial, Mid-Atlantic provided Ms. Neel with a letter
that offered her the position of Nursing Home Administrator at Chapel Hill Health Care,
a nursing facility owned by Mid-Atlantic Health Care, LLC. Def.‟s Exh. 45.
77. The undated letter offers Ms. Neel an annual salary of $123,614.00, health insurance
benefits, paid time off, and access to a company-sponsored 401(k) plan. Def.‟s Exh. 45.
78. The offer letter does not mention salary increases or a bonus structure. The offer letter
also does not specify the location of Chapel Hill Health Care. Def.‟s Exh. 45.
II.
Conclusions of Law
Federal law provides that any employer who violates FMLA shall be liable to any eligible
employee affected by the violation. Family and Medical Leave Act, 29 U.S.C. § 2617(a)(1). An
employer who has violated FMLA is liable for damages equal to:
(i)
(ii)
(iii)
the amount of any wages, salary, employment benefits, or other
compensation denied or lost to such employee by reason of the violation;
...
the interest on the amount described in clause (i) calculated at the
prevailing rate; and
an additional amount as liquidated damages equal to the sum of the
amount described in clause (i) and the interest described in clause (ii).
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29 U.S.C. § 2617(a)(1)(A)(i)-(iii). An employer may avoid liability for liquidated damages if it
“proves to the satisfaction of the court that the act or omission which violated [FMLA] was in
good faith and that the employer had reasonable grounds for believing that the act or omission
was not a [FMLA] violation . . . .” 29 U.S.C. § 2617(a)(1)(A)(iii). An employer who has
violated FMLA is also liable “for such equitable relief as may be appropriate, including
employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B).
A. Mid-Atlantic Owes Ms. Neel $116,030.02 in Lost Wages for the Time Period
Running From December 2, 2009 Through the Date of this Verdict.
Ms. Neel seeks back pay to compensate her for the difference between (i) the wages and
other compensation she would have earned at Mid-Atlantic from the date she was terminated at
Mid-Atlantic through the date of this judgment, and (ii) her actual earnings during the same time
frame. Ms. Neel‟s proposed back pay calculations assume that she would have received a three
(3) percent salary increase for each year of her continued employment at Mid-Atlantic. Ms.
Neel‟s calculations also assume that, for each year of her continued employment, she would have
received a bonus in the amount of fifteen (15) percent of her previous year‟s salary.
Mid-Atlantic counters that this Court should reduce Ms. Neel‟s back pay award to the
equivalent of sixty (60) days of lost wages because she failed to properly mitigate her damages.
Mid-Atlantic also suggests that any amount of lost wages owed to Ms. Neel should be reduced
by the commissions she earned as an insurance broker during her unemployment period.
Finally, Mid-Atlantic argues that Ms. Neel‟s back pay calculations include speculative raise and
bonus figures that should be omitted from this Court‟s back pay award.
1. How the Court calculated Ms. Neel’s back pay award.
To determine the appropriate back pay award in FMLA cases, the court calculates the
wages the prevailing plaintiff would have earned had she remained in her original employment
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through the date of the verdict, then subtracts any earnings that the plaintiff received during that
time period. See Dollar v. Smithway Motor Xpress, Inc., 787 F. Supp. 2d 896, 917 (N.D. Iowa
2011); Dillon v. Md.-Nat’l Capital Park & Planning Comm’n, Civ. No. WGC-04-994, 2006 WL
5157076 at *20 (D. Md. Oct. 27, 2006); see also Brady v. Thurston Motor Lines, Inc., 753 F.2d
1269, 1278 (4th Cir. 1985) (Title VII case); Cline v. Roadway Express, Inc., 689 F.2d 481, 489
(4th Cir. 1982) (ADEA case). An employee who has been unlawfully discharged has a duty to
mitigate her damages by being “reasonably diligent in seeking and accepting new employment
substantially equivalent to that from which [s]he was discharged.” Brady, 753 F.2d at 1273. The
employer bears the burden of demonstrating that the employee failed to mitigate damages.
Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995) (Title VII case); Dillon,
2006 WL 5157076 at *24.
Ms. Neel‟s proposed back pay calculations are, indeed, too speculative in regards to her
suggested bonus payments and salary increases.
Mid-Atlantic froze employee salaries in
February 1, 2010; there is no evidence to suggest that the freeze has been lifted. In addition,
Mid-Atlantic‟s bonuses are based on employee performance and other factors, such as the overall
performance of the facility. See Grillo Test. 53:9-18. It is impossible for this Court to predict
whether Ms. Neel would have received bonus payments had she remained at Mid-Atlantic. As a
result, the Court will use Ms. Neel‟s 2009 annual salary at Mid-Atlantic when calculating Ms.
Neel‟s back pay award.
2. Ms. Neel properly mitigated her damages.
Mid-Atlantic‟s suggested sixty-day limitation on back pay is unsupported by the evidence
presented at trial. After her wrongful termination, Ms. Neel certainly had a duty to mitigate her
damages. Miller v. AT&T, 83 F. Supp. 2d 700, 706 (S.D.W. Va. 2000) (“[A]n improperly
dismissed employee may not remain idle and recover lost wages from the date of discharge”)
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(internal citations omitted). However, Ms. Neel testified convincingly that she diligently sought
work during the length of her unemployment period. Ms. Neel searched for long-term care jobs
on job-posting websites; contacted colleagues in the industry; sent letters to long term care
companies that did not have published job openings; and applied for a variety of positions. MidAtlantic relies on the testimony of Keith Minton and Carole Campbell to suggest that Ms. Neel
failed to properly mitigate her damages. While Mr. Minton‟s and Ms. Campbell‟s testimony
present generalized views of the market for licensed nursing home administrators in Maryland,
their testimony is less relevant than Ms. Neel‟s testimony regarding her own job search. Ms.
Neel‟s failure to find a suitable position was not due to inaction on her part.
Nor did Ms. Neel fail to mitigate her damages by refusing to accept the position of
corporate wellness director at a company located near Rockville. Ms. Neel‟s duty to mitigate her
damages requires that she seek and accept employment that is “substantially equivalent” to her
position at Mid-Atlantic.
However, the employee “is not necessarily obligated to accept
employment which is located an unreasonable distance from [her] home.” NLRB v. Madison
Courier Co., 472 F.2d 1307, 1319 (D.C. Cir. 1972) (citing Florence Printing Co. v. NLRB, 376
F.2d 216, 221 (4th Cir. 1967), cert. denied, 389 U.S. 840 (1967)). The corporate wellness
director position paid $75,000-$80,000 per year, at least one-third less than Ms. Neel‟s salary at
Mid-Atlantic. The corporate wellness director position was also located a significant distance
from Ms. Neel‟s home. Because of its location and significantly lower salary, the Court finds
that the corporate wellness director position was not substantially equivalent to Ms. Neel‟s prior
employment. Ms. Neel was under no obligation to accept that position when it was offered to
her.
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Because Ms. Neel properly mitigated her damages by diligently seeking substantially
equivalent employment, the Court finds that Mid-Atlantic owes Ms. Neel lost wages running
from the date of her termination through the present date.
3. Mid-Atlantic has not established that Ms. Neel’s back pay award should be
reduced by her gross income from Insphere Insurance Solutions.
In 2010, Ms. Neel earned $7,182.23 in gross income as an independent insurance broker
with Insphere Insurance Solutions. On her 2010 tax return, Ms. Neel reported related expenses
in the amount of $11,406.00, resulting in a net loss of $4,223.77. Mid-Atlantic contends that Ms.
Neel‟s back pay award should be reduced by the gross income she received as an insurance
broker. Ms. Neel, on the other hand, contends that her lost wages award should be increased by
the amount of her net loss.
As the Third Circuit has noted, a number of factual questions arise when considering how
self-employment mitigates a plaintiff‟s damages:
For example: has the plaintiff drawn a salary which has reduced, if not eliminated
the year-end profit? Have personal expenses, normally paid by a wage earner
from a salary, been absorbed by the business, e.g., personal car expenses,
insurance, vacations and other personal expenses? Have dividends been paid?
Have profits been earned? Have particular expenses been appropriately offset
against revenues? . . . While these questions do not exhaust the inquiry, they are
but a few of the panoply of questions which must be answered when a plaintiff
establishes his own business and asserts his self-employment as proper mitigation.
Each of these questions necessarily must be resolved by the fact finder, against a
backdrop of the governing principles recited earlier: that the plaintiff should not
receive double benefits, and that the burden is upon the defendant to prove by
how much, if at all, the back pay award should be reduced. The aggregate
economic gain found by the jury would then constitute the offset against the
plaintiff's back pay damage award.
Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1005-06 (3d Cir. 1988) (emphasis added). A
number of courts have agreed with the Third Circuit that an employee‟s back pay award should
be offset by the employee‟s aggregate economic gain. Smith v. Great Am. Rests., Inc., 969 F.2d
430, 439 (7th Cir. 1992) (fact-finders should deduct actual earnings from the lost compensation
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award); Ford v. Rigidply Rafters, Inc., 984 F. Supp. 386, 389 (D. Md. 1997) (“To make the
plaintiff whole, the award of back pay should be the difference between what the employee
would have earned had the wrongful conduct not occurred from the period of termination to
judgment, and the actual earnings during that period.”) (Title VII case); Bonidy v. Vail Valley
Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277, 283-84 (Colo. Ct. App. 2010) (“When a
wrongfully terminated employee becomes self-employed, the aggregate economic gain found by
the trier of fact constitutes the offset against the employee's back pay damages award.”).
Mid-Atlantic has not proffered any case law to refute the position that a prevailing
employee‟s lost compensation award should be offset by the employee‟s aggregate economic
gain when the employee has mitigated her damages through self-employment. Rather, MidAtlantic suggests that Ms. Neel has not properly established that she lost money on her insurance
brokerage business. Mid-Atlantic‟s argument fails to recognize that it bears the burden of
proving by how much Ms. Neel‟s damage award should be reduced. Carden, 850 F.2d at 100405 (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 232 (1982)); Cline, 689 F.2d at 488-89
(ADEA case); see also Martin, 48 F.3d at 1358-59.
Mid-Atlantic has not met its burden to show that Ms. Neel‟s damage award should be
reduced by the amount of her insurance business income. Though Mid-Atlantic contends that
the loss shown on Ms. Neel‟s tax return is not an accurate measure of the benefit Ms. Neel
derived from her insurance business, Mid-Atlantic has not proved that the net loss Ms. Neel
reported for tax purposes is exaggerated or unfair. Because Mid-Atlantic has not met its burden,
the Court accepts that Ms. Neel suffered a net loss of $4,223.77 in relation to her selfemployment as an insurance broker. However, Ms. Neel has not provided any case law to
support her suggestion that Mid-Atlantic should reimburse her for this net loss. As a result, this
17
Court will neither reduce Ms. Neel‟s back pay award by her gross earnings as an insurance
broker nor increase her award by the value of her net loss. Indeed, the Court will not consider
Ms. Neel‟s insurance brokerage business when calculating her damages award.
4. Ms. Neel’s back pay award is $116,030.02.
Ms. Neel‟s final gross salary at Mid-Atlantic was $123,614.00 per year. This salary was
paid out in bi-weekly installments of $4,754.40. The parties agree that Ms. Neel lost one biweekly paycheck as a result of her termination in December, 2009. From the date of her
termination through the date of this verdict, Ms. Neel would have earned $323,298.40 at MidAtlantic. During the same time period, Ms. Neel earned $207,268.38. Specifically, in 2010, Ms.
Neel earned $27,645.11 from Collington.
In 2011, Ms. Neel earned $122,075.17 from
Collington. Since January 1, 2012, Ms. Neel has earned $3,836.54 per biweekly pay period from
Collington. This Court has calculated that, as of the date of this opinion, Ms. Neel has earned
$57,548.10 from Collington in 2012.
This Court finds that Mid-Atlantic owes Ms. Neel $116,030.02 for her lost wages from
the time of her termination through the date of this verdict. This amount represents the earnings
Ms. Neel would have made at Mid-Atlantic, less her actual earnings during the same time period.
B. Mid-Atlantic Owes Ms. Neel $2,975.85 in Lost Health Benefits.
Ms. Neel also seeks to recover the costs of both her health insurance coverage and her
husband‟s health insurance coverage during her period of unemployment. Ms. Neel received
personal health insurance coverage through Mid-Atlantic, and incurred health insurance and
health care costs from the date she was terminated at Mid-Atlantic until the date that her health
insurance coverage began at Collington.
Ms. Neel was married on September 25, 2009. She planned to add her husband to her
health insurance coverage when she returned from her FMLA leave. However, Mid-Atlantic‟s
18
health insurance plan requires that employees add spouses to their plan within thirty (30) days of
their marriage. As a result, Ms. Neel would not have been able to add her husband to her health
insurance coverage even if she had returned to Mid-Atlantic in December, 2009.
Because Mr. Neel could not have been added to Ms. Neel‟s health insurance in
December, 2009, damages comprising the cost of Mr. Neel‟s health insurance premiums are
unwarranted. It is entirely appropriate, however, to compensate Ms. Neel for her health-related
expenditures during her unemployment. Ms. Neel actively sought health insurance coverage
during her period of unemployment, but obtained health insurance coverage for only a portion of
that time. During the relevant time period, Ms. Neel spent $981.03 on COBRA health insurance
coverage, $1,280.00 on health insurance coverage through the Maryland Health Insurance
Program, and $1,914.82 on necessary medical expenses when she had no health coverage.
Though Ms. Neel paid nothing for her health insurance coverage while employed at MidAtlantic, the company required employees to contribute $50 per pay period to their health
insurance premium beginning on December 1, 2009. From the evidence presented at trial, the
Court has determined that Ms. Neel missed twenty-four (24) bi-weekly pay periods at MidAtlantic from the date of her termination through November 30, 2010. Using these figures, the
Court finds that Ms. Neel would have contributed $1,200.00 towards the cost of her health
insurance premiums during the relevant time.
Ms. Neel testified that her current health care benefits at Collington are comparable to the
health care coverage she received through Mid-Atlantic.1 The award for lost health benefits is,
1
Ms. Neel pays higher health insurance premiums with her Collington-provided health insurance ($128.59 per pay
period) than she would have paid had she remained at Mid-Atlantic ($50 per pay period). However, Ms. Neel‟s
current health insurance plan covers both herself and her husband, while her Mid-Atlantic health insurance covered
only Ms. Neel. For this reason, this Court will not compensate Ms. Neel for the difference in cost of her current
health insurance and her Mid-Atlantic health insurance.
19
therefore, cut off on December 1, 2010, the date that Ms. Neel began receiving health insurance
coverage through Collington.
For these reasons, this Court finds that Mid-Atlantic owes Ms. Neel $2,975.85 in lost
health benefits for the time period of December 2, 2009 to November 30, 2010. This amount
represents $4,175.85 in Ms. Neel‟s health insurance and health care expenses for the period, less
$1,200.00, the amount that Ms. Neel would have contributed to her health insurance premiums,
had she remained an employee at Mid-Atlantic.
C. Mid-Atlantic Owes Ms. Neel $7,664.51 in Pre-Judgment Interest.
Ms. Neel requests that she be awarded prejudgment interest on her lost wages and
benefits at the rate of six percent, Maryland‟s legal interest rate. Mid-Atlantic argues that “the
plaintiff is not entitled to pre-judgment interest, which rewards her for her lack of diligence in
locating replacement employment.” Def.‟s Closing Arg. 2.
Contrary to Mid-Atlantic‟s assertion, courts must award pre-judgment interest to
prevailing FMLA plaintiffs. Dotson v. Pfizer, Inc., 558 F.3d 284, 301-02 (4th Cir. 2009), cert.
denied, 130 S. Ct. 114 (2009), 130 S. Ct. 201 (2009). “Under the FMLA, an employer „shall be
liable‟ for the pre-judgment interest on the amount of „any wages, salary, employment benefits,
or other compensation denied or lost to [an employee] by reason of the [FMLA] violation.‟”
Dotson, 558 F.3d at 301; 29 U.S.C. § 2617(a)(1)(A)(i)-(ii). “Pre-judgment interest automatically
becomes part of the damages award under the plain terms of the statute.” Dotson, 558 F.3d at
302.
The FMLA does not dictate what interest rate courts should employ, but requires that prejudgment interest be calculated at “the prevailing rate.” 29 U.S.C. § 2617(a)(1)(A)(i)-(ii); Dillon
v. Md.-Nat’l Capital Park Planning Comm’n, Civ. No. WGC-04-994, 2007 WL 4557850 at *3
20
(D. Md. Mar. 9, 2007) (awarding pre-judgment interest in the amount of the general rate
established in 28 U.S.C. § 1961). “The rate of pre-judgment interest for cases involving federal
questions is a matter left to the discretion of the district court.” Quesinberry v. Life Ins. Co. of N.
Am., 987 F.2d 1017, 1031 (4th Cir. 1993). This Court is not bound by Maryland‟s six percent
legal rate of prejudgment interest because this case does not rest on the determination of
Maryland law. Fed. Sav. & Loan Ins. Corp. v. Quality Inns, Inc., 876 F.2d 353, 359 (4th Cir.
1989).
Courts often award pre-judgment interest at the prime interest rate. See, e.g., Cement
Div., Nat’l Gypsum Co., v. City of Milwaukee, 144 F.3d 1111, 1114 (7th Cir. 1998) (in
determining prejudgment interest, “the best starting point is to award interest at the market rate,
which means an average of the prime interest rate for the years in question”). In this case, the
Court finds that the appropriate rate of prejudgment interest to properly compensate Ms. Neel is
the prime interest rate, compounding annually. The Court takes judicial notice of the fact that the
prime interest rate was 3.25% on December 2, 2009, the date of Ms. Neel‟s termination, and has
not changed since that time.
Using the prime interest rate of 3.25% per annum, the Court finds that Ms. Neel is
entitled to pre-judgment interest in the amount of $7,664.51.
D. Mid-Atlantic Owes Ms. Neel $126,670.38 in Liquidated Damages.
Ms. Neel seeks liquidated damages in the amount equal to the sum of her lost
compensation and prejudgment interest.
Mid-Atlantic asserts that liquidated damages are
inappropriate because Mid-Atlantic acted in good faith and had objectively reasonable grounds
for believing that its actions regarding Ms. Neel‟s termination complied with FMLA.
Specifically, Mid-Atlantic argues that its actions were in good faith and objectively reasonable
21
because the company sought the legal advice of an experienced employment attorney and
followed that attorney‟s advice.
Employees who have been unlawfully terminated under the FMLA are entitled to an
additional award of liquidated damages equal to the sum of the amount awarded for damages and
the interest on that amount. Dotson, 558 F.3d at 302; 29 U.S.C. § 2617(a)(1)(A)(iii). Under
normal circumstances, liquidated damages are awarded automatically under the statute. Dotson,
558 F.3d at 302. The court may, however, choose not to award liquidated damages if the
employer “proves to the satisfaction of the court” that the FMLA violation was done “in good
faith and that the employer had reasonable grounds for believing that the act or omission was not
a violation.” Id., 29 U.S.C. § 2617(a)(1)(A)(iii). “The employer has a „plain and substantial
burden‟ to persuade the court that its failure was in good faith and that it would be unfair to
impose liquidated damages.” Dotson, 558 F.3d at 302 (citing Mayhew v. Wells, 125 F.3d 216,
220 (4th Cir. 1997) (interpreting liquidated damages provision of the Fair Labor Standards Act)).
An employer who wishes to deny reinstatement to a key employee who has taken FMLA
leave
must give written notice to the employee at the time the employee gives notice of
the need for FMLA leave (or when FMLA leave commences, if earlier) that he or
she qualifies as a key employee. At the same time, the employer must also fully
inform the employee of the potential consequences with respect to reinstatement
and maintenance of health benefits if the employer should determine that
substantial and grievous economic injury to the employer's operations will result
if the employee is reinstated from FMLA leave.
29 C.F.R. § 825.219(a) (2012). In addition,
[a]s soon as an employer makes a good faith determination . . . that substantial
and grievous economic injury to its operations will result if a key employee who
has given notice of the need for FMLA leave or is using FMLA leave is
reinstated, the employer shall notify the employee in writing of its determination,
that it cannot deny FMLA leave, and that it intends to deny restoration to
employment on completion of the FMLA leave. . . . This notice must explain the
basis for the employer's finding that substantial and grievous economic injury will
22
result, and, if leave has commenced, must provide the employee a reasonable time
in which to return to work, taking into account the circumstances, such as the
length of the leave and the urgency of the need for the employee to return.
29 C.F.R. § 825.219(b) (emphasis added).
In his memorandum granting summary judgment in favor of Ms. Neel, Judge Bredar
found that Mid-Atlantic had neither provided Ms. Neel with proper notice of its intent to deny
her restoration nor given her a reasonable time in which to return to work. Mem. 18. “MidAtlantic had no legitimate basis for denying restoration of Neel‟s job to her.” Id. Judge Bredar
further explained that
[t]he notification that Mid-Atlantic actually gave to Neel before she took her leave
did not explicitly convey an intent to deny restoration at the end of her FMLA
leave. Relying upon inadequate statutory compliance is not an excuse for
terminating an employee improperly, as Mid-Atlantic did here. Since MidAtlantic cannot legitimately rely upon proper FMLA notification as a basis for
termination, it is left with the unvarnished agreement by [Mid-Atlantic‟s chief
operating officer Jeff] Grillo with the statement that Neel would not have been
terminated if she had not taken FMLA leave. That constitutes direct evidence of a
violation of the FMLA . . . .
Id. at 19.
At trial, Traci Alley testified that she is the corporate human resources director for MidAtlantic Health Care, LLC. Alley Test., 147:7-11. Ms. Alley testified that she has attended
seminars on FMLA, has read both the text of the Act and its accompanying regulations, and
reviews the FMLA fairly regularly on the Department of Labor and Equal Employment
Opportunity Commission websites. Alley Test., 151:8-152:4.
Attorney Laura Rubenstein
testified that she advised Mid-Atlantic and its corporate parent, Mid-Atlantic Health Care, LLC,
on employment issues. Rubenstein Test., 8:2-5. Between October 5, 2009 and December 11,
2009, Ms. Rubenstein counseled Ms. Alley and Mr. Grillo regarding Ms. Neel‟s FMLA request.
Rubenstein Test., 8:6-11, 17:17-24, 23:1-24:21. Ms. Rubenstein‟s advised that Ms. Neel could be
properly classified as a “key employee” under FMLA and that the company would not
23
necessarily be required to restore Ms. Neel to her position after she completed her FMLA leave.
Rubenstein Test., 14:2-7.
Critical issues were absent from Ms. Rubenstein‟s conversations with Mr. Grillo and Ms.
Alley. Ms. Rubenstein, Mr. Grillo, and Ms. Alley did not discuss FMLA‟s requirement that a
company give its employee a reasonable time in which to return to work after learning that he or
she will otherwise be denied restoration.
See Rubenstein Test. 53:12-60:11.
They never
discussed whether telling Ms. Neel that her replacement had been identified sufficiently
explained Mid-Atlantic‟s failure to restore Ms. Neel to her position. Rubenstein Test. 52:3-13.
Mid-Atlantic‟s failure to seek advice on these aspects of FMLA does not meet the company‟s
burden of demonstrating good faith and objectively reasonable behavior. Mid-Atlantic‟s failings
are particularly glaring in light of the testimony that both Ms. Alley and Ms. Rubenstein are
well-versed in the Act and its accompanying regulations.
As Judge Bredar aptly stated, Mid-Atlantic had no legitimate basis for failing to restore
Ms. Neel to her position. For these reasons, the Court awards liquidated damages to Ms. Neel as
mandated by the Act. Liquidated damages are awarded in the amount equal to Ms. Neel‟s lost
compensation (both lost wages and lost benefits) plus the amount of pre-judgment interest, or
$126,670.38.
E. Mid-Atlantic Has Not Offered to Reinstate Ms. Neel to Her Previous Position or
to an Equivalent Position.
Ms. Neel argues that Mid-Atlantic has never offered to reinstate her to her previous
position or an equivalent position. Ms. Neel also asserts that reinstatement is not feasible
because Ms. Neel would face animosity and hostility from Mid-Atlantic employees if she
resumed work there. Mid-Atlantic counters that it has provided Ms. Neel with a legitimate
reinstatement offer.
24
In addition to lost compensation, prejudgment interest, and liquidated damages, the
FMLA entitles a wronged employee to “such equitable relief as may be appropriate, including
employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B); Dotson, 558 F.3d at
300. An employee who takes qualifying FMLA leave is entitled to restoration to either her preleave position or to “an equivalent position with equivalent employment benefits, pay, and other
terms and conditions of employment.” 29 U.S.C. § 2614(a)(1); Csicsmann v. Sallada, 211 Fed.
App‟x 163, 166 (4th Cir. 2006). An “equivalent position” is “one that is virtually identical to the
employee‟s former position in terms of pay, benefits and working conditions, including
privileges, perquisites and status.” 29 C.F.R. § 825.215 (2012). “Equivalent pay” includes
bonuses. Id. Furthermore, “[t]he employee must be reinstated to the same or a geographically
proximate worksite (i.e., one that does not involve a significant increase in commuting time or
distance) from where the employee had previously been employed.” Id.
The employer bears
the burden of proving that an offer of reinstatement is sufficiently comparable to the employee‟s
previous job. Xiao-Yue Gu v. Hughes STX Corp., 127 F. Supp. 2d 751, 756 (D. Md. 2001)
(ADEA case).
Mid-Atlantic has not demonstrated that the employment offer it gave Ms. Neel shortly
before this trial constitutes a sufficient offer of reinstatement. Setting aside the issue of whether
an offer from Mid-Atlantic Health Care, LLC qualifies as an offer from Ms. Neel‟s previous
employer, the plain terms of the offer show that it is not equivalent to Ms. Neel‟s previous
employment with Mid-Atlantic. The offer letter, which was submitted to Ms. Neel more than
two years after her wrongful termination, does not provide any information regarding bonus
eligibility. At her previous position with Mid-Atlantic, Ms. Neel was eligible for a bonus of up
to 25% of her previous year‟s earnings. The offer letter includes no information regarding the
25
location of the Chapel Hill facility; Mid-Atlantic has provided no details regarding that facility‟s
location. This Court cannot gauge whether the Chapel Hill nursing home is located in an area
that is geographically proximate to the Fairfield facility where Ms. Neel formerly worked.
Mid-Atlantic‟s employment offer does not provide for the same pay that Ms. Neel
previously enjoyed while she was employed at Mid-Atlantic.
Nor does the offer indicate
whether the position offered is located at a geographically proximate location. For these reasons,
the Court finds that Ms. Neel has not been offered reinstatement to her pre-leave position or to an
equivalent position.
F. An Award of Front Pay is Inappropriate.
Because Ms. Neel has not been offered reinstatement to an equivalent position, she seeks
front pay for a period of time to be determined by this Court. Mid-Atlantic counters that Ms.
Neel is not entitled to front pay because she rejected Mid-Atlantic‟s legitimate reinstatement
offer.
While FMLA does not identify front pay as an equitable remedy available under the Act,
the Fourth Circuit has recognized it as “a proper form of relief that is „an alternative and
complement to reinstatement.‟” Dotson, 558 F.3d at 300 (citing Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 307 (4th Cir. 1998). Determinations regarding the award of front pay are made by
the trial judge, who must “temper” the award of front pay by recognizing the “potential for
windfall” to the plaintiff. Dotson, 558 F.3d at 300 (citing Duke v. Uniroyal, 928 F.2d 1413, 1424
(4th Cir. 1991) (Title VII case)); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504 (4th Cir.
2001).
Front pay is generally available when an employer has unlawfully terminated an
employee and reinstatement of the employee is impossible. Loveless v. John’s Ford, Inc., 232
Fed. App‟x 229, 238 (4th Cir. May 9, 2007) (ADEA case) (relying on Duke, 928 F.2d at 1423).
26
Because Mid-Atlantic has not provided a sufficient offer of reinstatement, the Court
must consider whether front pay is an appropriate alternative. The evidence shows that it is
unlikely that Ms. Neel would have remained at Mid-Atlantic for the long term. Both Mr. Grillo
and Ms. Alley testified that licensed nursing home administrators remain at Mid-Atlantic for an
average of 2.8 years. Ms. Neel‟s own work history further bolsters Mid-Atlantic‟s argument.
Ms. Neel voluntarily changed licensed nursing home administrator positions twice before she
began work at Mid-Atlantic, working for each nursing home management company for between
two and four years.
More than four years have elapsed since Ms. Neel began her employment at MidAtlantic. The evidence suggests that, even if Mid-Atlantic had not wrongfully terminated her,
Ms. Neel would have likely moved on to different employment sometime before the date of this
verdict. Furthermore, Ms. Neel has found a comparable job in the same field, and her current
total compensation is very close to her base salary at Mid-Atlantic. An award of front pay is
inappropriate under these circumstances because such an award would constitute a windfall. See
Dotson, 558 F.3d at 300 (the district court did not abuse its discretion by denying front pay to an
employee who had secured comparable employment within his chosen industry).
For this
reason, the Court finds that an award of front pay is unwarranted.
G. Attorney’s Fees
In FMLA cases in which the plaintiff prevails, “The court . . . shall, in addition to any
judgment awarded to the plaintiff, allow a reasonable attorney‟s fee, reasonable expert witness
fees, and other costs of the action to be paid by the defendant.” 29 U.S.C. § 2617(a)(3); Dotson,
558 F.3d at 303; see McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir.1998). “The
27
amount of attorneys' fees awarded is at the trial court's discretion.” Dotson, 558 F.3d at 303
(citing Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1359 (4th Cir.1995)).
Ms. Neel‟s counsel is ordered to submit, within thirty (30) days of the date of this order, a
statement of reasonable attorneys‟ fees and costs for consideration by the Court, which should
comply with Appendix B of the Local Rules of this Court. Mid-Atlantic will be permitted
fourteen (14) days from the filing of Ms. Neel‟s statement to file any particularized objections to
the statement of attorneys‟ fees and costs.
III.
Conclusion
For the foregoing reasons, the Court finds Mid-Atlantic liable for $116,030.02 in lost
wages; $2,975.85 in lost health benefits; $7,664.51 in pre-judgment interest; $126,670.38 in
liquidated damages; and reasonable attorneys‟ fees. The total amount that Mid-Atlantic owes
Ms. Neel is $253,340.76, plus reasonable attorneys‟ fees to be determined by this Court. A
separate Order follows.
Dated: August 9, 2012
/s/
Stephanie A. Gallagher
United States Magistrate Judge
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