Perry v. Isle of Wight County et al

Filing 68

MEMORANDUM OPINION AND ORDER: The Court FINDS Defendant liable for violation Plaintiff's right to reinstatement under the FMLA. Accordingly, JUDGMENT IS ENTERED FOR PLAINTIFF and Plaintiff is AWARDED $747,320.66. IT IS SO ORDERED. Signed by District Judge Raymond A. Jackson and filed on 8/10/17. Copies distributed to all parties 8/10/17.(ldab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

LISA T. PERRY,
Plaintiff,
V.

CIVIL ACTION NO. 2:15-cv-204

ISLE OF WIGHT COUNTY,
Defendant.

MEMORANDUM OPINION AND ORDER

This Memorandum Opinion and Order is issued after a bench trial in the above-styled
matter to resolve Lisa T. Perry's ("Plaintiff") claim against the Isle of Wight County
("Defendant") for failing to reinstate Plaintiff in violation of the Family Medical Leave Act

("FMLA"). Plaintiffwas employed by Defendant and was not reinstated to her position after her
FMLA leave ended. For the reasons set forth herein, the Court FINDS Defendant liable for

violating the FMLA and enters judgment for Plaintiff.
I. PROCEDURAL HISTORY

On May 12, 2015, Defendant removed this action from Isle of Wight Circuit Court. ECF
No. 1. On October 28, 2015, Plaintiff filed an Amended Complaint alleging that Defendant had

engaged in (1) Retaliation in Violation of the FMLA and (2) Failure to Reinstate in Violation of
the FMLA. ECF No. 16. On January 24, 2017, after full briefing by the parties, the Court

granted in part and denied in part Defendant's Motion for Summary Judgment. ECF No. 48.
The Court dismissed Count 1of the Amended Complaint, leaving Count II as the only remaining
claim of the Amended Complaint.

I

The Court held a bench trial on March 7, 2017. ECF No. 59. The parties have filed post-

trial briefs and this matter is now ripe for judicial determination. The Court issues the following

Findings of Fact and Conclusions of Law, as required by Rule 52(a) of the Federal Rules of Civil
Procedure.

II. FACTUAL FINDINGS

A.

Stipulated Facts

The parties have stipulated to the following facts, which the Court accepts and finds:

1. On May 2,2014, Plaintiffinjured her shoulder by falling through a hatch on the deck of a
large catamaran sailboat.

2. On approximately May 7,2014, Plaintiff had an appointment with an orthopedic surgeon,
Dr. Jason Smith. Dr. Smith took x-rays and informed Plaintiff she had a fracture in her
upper left arm.

3. Dr. Smith prescribed Perry pain medication and instructed her to wear her arm in a sling
for 30 days.

4. Except for taking off a few days at the end of May, 2014, Plaintiff worked through May
and most of June.

5. On June 26, 2014, having obtained no relief. Plaintiff saw Dr. Douglas Boardman, who

diagnosed Plaintiff with "frozen shoulder," or "immobility in the shoulder area." Dr.

Boardman prescribed aggressive physical therapy, pain medication, scheduled a followup appointment for July 31,2014 and recommended that Plaintiff take at least 30 days off
from work.

6. From June 27, 2014 until July 31, 2014, Lisa Perry was entitled to FMLA leave. At the
July 31, 2014, appointment with Dr. Boardman, Plaintiff was advised by Dr. Boardman

not to return to work until Monday, August 4"*. Perry did not inform Defendant ofthis on
July 31, August 1, August 2, or August 3 (August 2 and 3, 2014, were a Saturday and
Sunday). Plaintiff contends she was entitled to leave on August 1, a Friday, and should
have been allowed to return to work on August 4. Defendant disputes this and contends
her leave ended on July 31.

7. Plaintiff had a salary and benefit package at the point at which her employment
terminated worth, at least, $98,000 per year.

8. Plaintiffs Exhibits 1, 3, 5, 6 and 7 are authentic Isle of Wight documents and stipulated
as admissible into the trial record without further testimony or support.
B.

Additional Factual Findings

The Court has made the following additional factual findings:

1. On July 2, 2014, Plaintiff filled out, signed, and submitted Isle of Wight County's

"Request for Family/Medical Leave" form. In the space labeled "Date Leave Ends,"
Plaintiff wrote "7/31/14

Under that space, Plaintiff wrote, "* with doctor's approval."

Defs Ex. 3; Trial Tr. 29:1-12, 108:4-25.

2. On July 9, 2014, Linda Tuck (Defendant's Human Resources Coordinator) called
Plaintiff to discuss Plaintiffs FMLA leave. Plaintiff informed Ms. Tuck that she would

be having an appointment with her orthopedic surgeon, Dr. Boardman, on July 31, 2014.
Trial Tr. 32:24-33:25,109:1-110:6.

3. On July 14, 2014, Dr. Boardman faxed Defendant a form certifying Plaintiffs FMLA
leave.

On the form, Dr. Boardman wrote that the probable duration of Plaintiffs

condition was the end of July 2014. Dr. Boardman listed 7/31/14 as the date of Plaintiff s
next appointment. Pi's Ex. 2; Trial Tr. 85:10-86:5.

4. On July 14, 2014, Defendant approved Plaintiffs request for FMLA leave and mailed
Plaintiff two documents: the "Notice of Eligibility and Rights & Responsibilities," Pi's
Ex. 3, and the "Designation Notice," Pi's Ex. 7. Trial Tr. 68:8-69:9.
5. Defendant considered Plaintiffs failure to appear at work on Friday, August 1, 2014 as a

voluntary resignation from her position. Trial Tr. 46:5-11, 88:24-89:5.
6. In the afternoon of Friday, August 1, 2014, Mary Beth Johnson ("Ms. Johnson"),
Defendant's Human Resources Director, drafted, signed, and mailed an employment
termination letter to Plaintiff. Defs Ex. 1; Trial Tr. 62:11-63:2.

7. Plaintiff appeared for work on Monday, August 4, 2014. She was promptly informed that
she had voluntarily resigned her position and that she had been sent a letter on Friday,
August 1, 2014 informing her that her employment was terminated. Trial Tr. 18:1920:20, 88:19-89:5.
III. CONCLUSIONS OF LAW

1. The Family and Medical Leave Act ("FMLA") provides an eligible employee up to 12

weeks of leave per year "because of a serious health condition that makes the employee
unable to perform the functions" of their position. 29 U.S.C. § 2612.

2. The FMLA guarantees that any employee who takes FMLA leave is entitled "[T]o be
restored by the employer to the position of employment held by the employee when the
leave commenced;...." 29 U.S.C. § 2614.

3. The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise any right provided" under the FMLA. 29 U.S.C. §
2615.

4. The FMLA allows employees who have suffered a violation of their FMLA rights to
initiate civil actions. 29 U.S.C. § 2617.

5. Employers found in violation of the FMLA are liable for "any wages, salary, employment
benefits, or other compensation denied or lost to such employee by reason of the
violation," interest on those lost wages and benefits, liquidated damages, and "equitable

relief as may be appropriate, including employment, reinstatement, and promotion." 29
U.S.C. §2617.

6. "A plaintiff in an employment discrimination case must mitigate damages by diligently

'seeking and accepting new employment substantially equivalent to that from which he
was discharged.' Brady v. Thurslon Motor Lines, Inc., 753 F.2d 1269, 1273 (4th
Cir.1985). Failure to diligently seek new employment precludes an award of back pay for
the period during which employment was not sought. See id. The duty to mitigate is not
without limits, however. For example, a plaintiff 'need not go into another line of work,

accept a demotion, or take a demeaning position.' Ford Motor Co. v. EEOC, 458 U.S.
219, 231, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). The defendant bears the burden of

demonstrating that the plaintiff has failed to fulfill the duty to mitigate. See Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir.1995)." Miller v. AT & T Corp., 250
F.3d 820, 838 (4th Cir. 2001).

7. The most desirable equitable remedy is reinstatement. See Duke v. Uniroyal Inc., 928
F.2d 1413, 1423 (4th Cir. 1991). When reinstatement is not appropriate, front pay may
be used as an alternative. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 307 (4th Cir.

1998). A court considering awarding front pay must balance the need to remedy the

plaintiff's future losses with the duty to avoid providing an unjust "windfall" to the
plaintiff. Dotson v. Pfizer, Inc., 558 F.3d 284, 300 (4th Cir. 2009).

8. Title 29, Subtitle B, Chapter V, Subchapter C, Part 825, Subpart C of the Code of Federal

Regulations governs the rights and obligations of employees and employers under the
FMLA. 29 C.F.R. § 825.300 et seq.

9. 29 C.F.R. § 825.303 governs situations when an employee seeks to request a new period
of unforeseeable FMLA leave.

10. 29 C.F.R. § 825.311 governs situations when an employee seeks to modify the length of
her existing FMLA leave.

11. Section 5.12 of the Isle of Wight County Policy Manual ("Policy Manual") governs the

rights and obligations of Isle of Wight County employees on FMLA leave, subject to the
FMLA itself and the provisions of 29 C.F.R. § 825.300 et seq.
IV. DISCUSSION
A. FMLA Violation

Plainly stated, the crux of this case is whether it was lawful for Defendant to terminate
Plaintiffs employment when Plaintifffailed to appear for work on August 1, 2014. Section 5.12
of the Policy Manual states, "If the employee does not return to work following the conclusion of
FMLA leave, the employee will be considered to have voluntarily resigned." Because Defendant
considered July 31, 2014 to be Plaintiffs last day of FMLA leave. Defendant considered
Plaintiffs failure to appear for work on August 1, 2014 as Plaintiff's voluntary resignation from
her employment.

Because the parties dispute whether July 31, 2014 was the binding and enforceable end
date of Plaintiffs FMLA leave, resolution of this case would ordinarily require the Court to

examine the conflicting evidence and determine which party is correct. However, for the reasons

more fully explained hereinafter, the Court need not make this determination because it would
not alter the Court's conclusion in this case.

Plaintiff argues that two sections of the Code of Federal Regulations, and their

corresponding subsections in Section 5.12 of the Policy Manual, permitted Plaintiff to inform
Defendant of her need for more leave on Monday, August 4, 2014. One section (29 C.F.R. §

825.303 ("§ 825.303")) applies when an employee seeks to request a new period of
unforeseeable FMLA leave. The other section (29 C.F.R. § 825.311 ("§ 825.311")) applies when

an employee seeks to modify the length of her existing FMLA leave. In order to apply the
correct rules, the Court must determine which of those situations is present in this case.

On Thursday, July 31, 2014, Dr. Boardman ordered Plaintiff not to return to work until
Monday, August 4, 2014. Because Plaintiff was still on FMLA leave when Dr. Boardman
informed her of this determination, this is clearly a situation in which an employee sought to

modify the length of her existing FMLA leave. Therefore, this case is governed by § 825.311
and its corresponding subsection in Section 5.12 of the Policy Manual (under the "Required
Documentation" heading). Section 825.303 and its corresponding subsection in Section 5.12 of

the Policy Manual (under the "Requests for FMLA Leave" heading) do not apply to this case
because Plaintiff was not seeking to initiate a new period of unforeseeable FMLA leave.
Again, Plaintiff argues that this federal regulation and its corresponding subsection in the
Policy Manual permitted Plaintiff to inform Defendant of her need for more leave on Monday,
August 4, 2014. Section 825.311(c) states, "It may be necessary for an employee to take more
leave than originally anticipated. ... [In this situation], the employer may require that the

employee provide the employer reasonable notice (i.e., within two business days) of the changed

circumstances where foreseeable. The employer may also obtain information on such changed
circumstances through requested status reports." § 825.311. According to the federal regulation,
Defendant bears the responsibility of informing Plaintiff that she is required to provide

"reasonable notice" of the changed circumstances that necessitate more leave than originally
anticipated. The Court must determine whether Defendant has shown that it informed Plaintiff
of this requirement.

Here, Defendant provided three documents to Plaintiff informing her of her

responsibilities while on FMLA leave. From these documents, it is clear that Defendant
informed Plaintiff that she was required to update Defendant about any changed circumstances
that would necessitate her taking more FMLA leave.

The first document Defendant provided to Plaintiff, the Notice of Eligibility and Rights &

Responsibilities, provides employers the opportunity to require updates from employees on
FMLA leave. Specifically, the second page of that notice states, "[Y]ou will have the following

responsibilities while on FMLA leave (only checked blanks apply): . . .

One of the

responsibilities in that section that Defendant could have imposed on Plaintiff states, "While on
leave you will be required to furnish us with periodic reports of your status and intent to return to

work every

(indicate interval of periodic reports, as appropriate for the particular leave

situation)." Defendant's Human Resources personnel did not indicate an interval of periodic
reports, nor did they place a "check mark" in the blank next to this sentence.

The second document Defendant provided to Plaintiff, the Designation Notice, states one

requirement regarding updates: "The FMLA requires that you notify us as soon as practicable if
dates of scheduled leave change or are extended, or were initially unknown."

The third document Defendant provided to Plaintiff, the Policy Manual, states, "If the
employee's anticipated return to work date changes and it becomes necessary for the employee
to take more or less leave than originally anticipated, the employee must provide the County with
reasonable advance notice (i.e., within 4 business days) of the employee's changed
circumstances and new return to work date."

These documents, taken together, informed Plaintiff that she would be required to notify
Defendant within 4 business days of any changed circumstances that extended her FMLA leave.

Regarding the disputed end date, it is clear that it does not matter whether July 31, 2014

was the enforceable and binding end date for Plaintiffs FMLA leave. If, as Defendant suggests,
July 31, 2014 was the end date, then Plaintiff was still on FMLA leave when Dr. Boardman
ordered her leave extended by 1 day. Therefore, according to the Policy Manual, Plaintiff had 4

business days from the time of her appointment with Dr. Boardman to inform Defendant of those
changed circumstances and her need for 1 more day of FMLA leave. Because Plaintiff appeared
for work on Monday, August 4, 2014, well before the 4-business-day deadline. Plaintiff
complied with Defendant's requirements.

Defendant argues that it imposed one additional requirement on Plaintiff that she failed to
meet. Defendant alleges that, on July 9, 2014, Plaintiff told Ms. Tuck that she would contact Ms.

Tuck on July 31, 2014 and provide an update regarding her intent to return to work. The parties
agree that Plaintiff did not make contact with any of Defendant's Human Resources personnel on

July 31, 2014. Therefore, Defendant argues that Plaintiff cannot receive her 1-day FMLA leave
extension because she failed to comply with the requirement that she update Ms. Tuck about the

need for an extension on July 31, 2014 after her appointment with Dr. Boardman. Plaintiff

testified that she remembers the July 9 conversation with Ms. Tucic, but denies that she
committed to providing any update on that date.

It is important to note that, crucially, neither of three documents Defendant provided to
Plaintiff informs her that she will be required to give Defendant an update on or before July 31,

2014. The only evidence of this requirement is Ms. Tuck's testimony, which is contradicted by
Plaintiffs testimony. Section 825.311 allows employers the option of requiring updates and
status reports. It is Defendant's responsibility to show that it imposed such a requirement on
Plaintiff. In the absence of more evidence that Defendant notified Plaintiff of this requirement,
the Court will not impose it on Plaintiff.

The Court finds that Plaintiff complied with all the notice requirements imposed upon her
by Defendant and the Code Federal Regulations. Therefore, in accordance with the protections
provided by the FMLA, Plaintiff was entitled to reinstatement when she returned to work on
Monday, August 4, 2014. Defendant violated the Plaintiffs rights under the FMLA when it
terminated Plaintiffs employment on August 1,2014.
B. Damages

Having established that Defendant violated Plaintiffs rights under the FMLA, the Court
turns now to the issue of damages. Title 29 U.S.C. § 2617 ("§ 2617") contains the enforcement

provisions of the FMLA and allows the Court to award both monetary damages and equitable
relief. § 2617. Based on this statute, Plaintiff is requesting three things: lost salary/employment

benefits, liquidated damages, and front pay. The Court will determine the appropriateness of
each.

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1. Lost Salary and Employment Benefits
Section 2617(a)(l)(A)(i) makes Defendant liable for "any wages, salary, employment

benefits, or other compensation denied or lost to such employee by reason of the [FMLA]
violation; . . .

§ 2617. Here, the parties have stipulated that Plaintiffs salary and benefit

package was worth approximately $98,000 per year at the point at which her employment
terminated. ECF No. 43 at 2. Had Plaintiff been reinstated to her position in accordance with

her rights under the FMLA, she would have earned approximately $296,634.08 in salary and
benefits between the date of her termination and the date of this order.

Plaintiff is required to mitigate these damages by diligently pursuing employment
opportunities that are comparable to the position from which she was discharged by Defendant.
Miller v. AT & T Corp., 250 F.3d 820, 838 (4th Cir. 2001). Plaintiff testified that she attempted

to mitigate damages by applying for 75 or more positions that were comparable to the position
she held while employed by Defendant. Trial Tr. 22:9-26:17. She was not offered any of these
positions. Plaintiff has earned approximately $20,973.75 since the time Defendant terminated
her employment. After adjusting for mitigation, the Court finds defendant liable for lost salary
and benefits in the amount of $275,660.33.

2. Liquidated Damages

Section 2617(a)(l)(A)(iii) also makes Defendant liable for liquidated damages, in an

amount equal to the amount of Plaintiffs lost salary and benefits. § 2617. However, the statute

allows a defendant to escape liability for liquidated damages by "prov[ing] to the satisfaction of
the court that the act or omission which violated section 2615 of this title was in good faith and

that the employer had reasonable grounds for believing that the act or omission was not a
violation of section 2615 of this title." Id.

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Here, Defendant terminated Plaintiffs employment in the afternoon of Friday, August 1,

2014 because Plaintiff did not appear for work on that day and had not contacted Defendant on
Thursday, July 31, 2014. Ms. Johnson, Defendant's Human Resources Director, knew Plaintiff
had an appointment with Dr. Boardman on July 31, 2014. Pi's Ex. 2; Trial Tr. 85:10-86:5. Ms.
Johnson knew that there was a possibility that Dr. Boardman would extend Plaintiffs FMLA
leave during that appointment. Trial Tr. 83:16-19. Ms. Johnson knew that the Policy Manual

permitted Plaintiff to notify Defendant of the changed circumstances within four business days
of learning of the need for the leave. Trial Tr. 71:9-14. Nevertheless, Defendant's Human
Resources Personnel barely waited one business day before concluding that she had voluntarily
resigned and terminating her employment.
It is clear from the record that Defendant's Human Resources personnel gave non-

mandated warnings and notices to other employees regarding the expiration of their FMLA
leave, to ensure that the employees were apprised of their end date and did not accidentally
"voluntarily resign". Trial Tr. 113:7-115:8, 117:10-118:1. It is also clear from the record that
Defendant's Human Resources personnel and the County Administrator were keenly aware of
the supposed end date of Plaintiffs FMLA leave, and that they coordinated on August 1, 2014 to
monitor every possible mode of communication that Plaintiff might have used to check in with
them. Trial Tr. 83:14-23.

The fact that Defendant's Human Resources personnel waited attentively for Plaintiff to

contact them on August 1, 2014 and then quickly terminated her that same day was
unreasonable, especially in light of Defendant's history of actively reaching out to their
employees to avoid any accidental voluntary resignations. Therefore, the Court finds that

Defendant has not proven, to the satisfaction of the court, that its violation of Plaintiffs rights

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under the FMLA was in good faith. Accordingly, the Court finds Defendant liable for liquidated
damages in the amount of $275,660.33.
3. Front Pay

Section 2617(a)(1)(B) also makes Defendant liable "for such equitable relief as may be

appropriate, including employment, reinstatement, and promotion."

§ 2617.

The goal of

equitable relief is to compensate a plaintiff for potential ftiture losses arising from the
defendant's violation.

"The appropriate method for addressing the difficult question of

providing a remedy which anticipates potential future losses requires an analysis of all the

circumstances existing at the time of trial for the purpose of tailoring a blend of remedies that is

most likely to make the plaintiff whole. The beginning point ... for preventing future loss is
reinstatement." Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir. 1991).

"[NJolwithstanding the desirability of reinstatement, intervening historical circumstances
can make it impossible or inappropriate." Duke, 928 F.2d at 1423. Such circumstances exist
when there is "such animosity between the parties that any potential employer-employee

relationship was irreparably damaged;... or when there was no comparable position available."
Id. Here, the Court has found that Defendant has not adequately shown that it acted in good faith
when it failed to reinstate Plaintiff. Additionally, Plaintiff has shown that her former position
with Defendant has been filled. See ECF No. 66. Therefore, the Court finds that reinstatement is

not an appropriate equitable remedy in this case.

Plaintiff argues that, in the absence of the possibility of reinstatement, the Court should
award her front pay as a substitute for reinstatement. The U.S. Court of Appeals for the Fourth
Circuit has stated the following:

When reinstatement is not appropriate, then other remedies may be considered.
We join virtually all circuits that have considered the subject in concluding that
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front pay is an available remedy to complete the panoply of remedies available to
avoid the potential of future loss. . . . While reinstatement, which is clearly an
equitable remedy, is the much preferred remedy, front pay may serve as a
substitute or a complement. Because of the potential for windfall, however, its use
must be tempered. It can be awarded to complement a deferred order of
reinstatement or to bridge a time when the court concludes the plaintiff is
reasonably likely to obtain other employment. If a plaintiff is close to retirement,
front pay may be the only practical approach. The infinite variety of factual
circumstances that can be anticipated do not render any remedy of front pay
susceptible to legal standards for awarding damages. Its award, as an adjunct or
an alternative to reinstatement, must rest in the discretion of the court in shaping
the appropriate remedy.

Duke, 928 F.2d at 1423-24. Although Duke discussed front pay in the context of violations of

the Age Discrimination in Employment Act, the same legal standards apply to violations of the
FMLA. Cline v. Wal-Mart Stores. Inc., 144 F.3d 294, 307 (4th Cir. 1998) ("In Duke, we held

that front pay, as an alternative or complement to reinstatement, is an equitable remedy .... We
find no reason to deviate from that rule in the context of the FMLA.").

The Court's first task is to determine whether it should award front pay at all. "The

appropriate method for addressing the difficult question of providing a remedy which anticipates
potential future losses requires an analysis of all the circumstances existing at the time of trial for
the purpose of tailoring a blend of remedies that is most likely to make the plaintiff whole."
Duke, 928 F.2d at 1423.

Plaintiff testified that, despite her best efforts, she has not been able to obtain
employment comparable to the position from which she was discharged. The record reflects that

Plaintiff has no college degree and achieved her Director position through years of learning on
the job. Therefore, the Court finds that it will be inordinately difficult for Plaintiff to obtain a
position comparable to the one from which she was discharged. Plaintiff also testified that she

planned to work for Defendant for approximately 9 more years before retiring at age 65. Trial

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Tr. 22:4-8. Defendant's actions have prevented Plaintiff from doing so. Accordingly, the Court
finds that front pay is necessary to make Plaintiff whole.

Having determined that front pay is necessary, the Court must now determine what
amount to award in front pay. The Fourth Circuit has stated the following with regard to
determining a front pay award:

Future wages are often determined with reasonable certainty and awarded as legal
damages in circumstances where the earning capacity of a plaintiff is destroyed or
damaged. In circumstances, however, where employment is terminated without
destroying the capacity to work, the nature and extent of injury is nearly
indeterminable. The broad array of potential circumstances of a terminated
employee's ftiture income makes any attempt at finding damages a speculative
venture. The question of whether the discharged employee will ever work again
despite his best efforts or will obtain gainful employment in two years, or
immediately, is not something that is within the realm of fact finding.
Duke, 928 F.2d at 1423. Accordingly, the Court, in awarding front pay, must compensate

Plaintiffs future losses while also ensuring that it does not become too much of "a speculative

venture." Id. "Under one scenario of future events, the plaintiff could be left without a remedy

and under another the plaintiff could end up with a windfall. In either case, an injustice is done to
one party or the other." Id.

Although Plaintiff testified that she planned to work for Defendant for 9 more years, the
Court cannot state with certainty that those plans would have come to fruition. Plaintiff has
requested front pay in the amount of $196,000.00, equivalent to 2 years' salary and benefits. The
Court finds that 2 years' salary and benefits appropriately balances the need to remedy the
plaintiffs future losses with the duty to avoid providing an unjust "windfall" to the plaintiff.
Therefore, the Court finds defendant liable for front pay in the amount of $196,000.00.

The Court finds that the situation presented in this case is different from that presented in
Dotson V. Pfizer, Inc., a case cited and discussed by both parties. ECF Nos. 62, 65, 66. In

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Dotson, the dcrcndani had violated the plaintiffs rights under the FMLA. and the trial court had
awarded back pay and liquidated damages. Dotson v, Pfizer. Inc., 558 F.3d 284, 290 (4th Cir.
2009). However, the trial court had declined to award the plaintiff front pay. Id. at 292. There,

the plaintilT had acquired a comparable employment position within three years of being
discharged, was relatively young when he was discharged, was highly educated, and was

requesting 15 years of front pay. hi. at 300. The trial court said that it would have been inclined
to award front pay for a more limited period of time, such as 3 years, had the plaintiff not

acquired a job in that time. Id. The Fourth Circuit held thai the trial court's refusal to grant front
pay was not an abuse of discretion. Id. at 301.
Here, PlaintitY has not been able to obtain a comparable employment position, was 56
years old when she was discharged, has no college degree, and is requesting 2 years of front pay.
Plainly staled. Plaintiffs situation is altogether different from that of the plaintiff in Dotson.
Therefore, the Court does not find thai Dotxon precludes the award of front pay in this case.
V. CONCLUSION

For the foregoing reasons, the Court FINDS Defendant liable for violation Plaintiffs

right to reinstatement under the FMLA.

Accordingly, JUDGMENT IS ENTERED FOR

PLAINTIFF and Plaintiff is AWARDED $747,320.66.

The Clerk is DIRECTED to send a copy of this Order to the parties and counsel of
record.
IT IS SO ORDERED.

Norfolk. Virginia

Raymond A.

August /O ,2017

United :Maies District Juage

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