Millea v. Metro-North Railroad Co., No. 10-409 (2d Cir. 2011)
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Following a jury trial in district court, plaintiff won partial victory on his claims under the Family Medical Leave Act (FMLA), 29 U.S.C. 2615. Plaintiff and defendant cross-appealed. Plaintiff argued that, on his unsuccessful retaliation claim, the jury should have adopted the standard set forth for Title VII retaliation in Burlington Northern & Santa Fe Railway Co. v. White. Plaintiff also appealed the award of only $204 in attorneys' fees on his one successful claim, that defendant interfered in his exercise of FMLA rights. Defendant cross-appealed the denial of its Federal Rule of Civil Procedure 50 motion for judgment as a matter of law on the interference claim. The court affirmed the district court's denial of defendant's motion. The court vacated and remanded for a new trial on the retaliation claim because the district court erred in rejecting the Burlington Northern jury charge and this error prejudiced plaintiff. The court also vacated the award of attorneys' fees and remanded for recalculation in conformity with the lodestar method.
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10-409-cv (L) Millea v. Metro-North R.R. Co. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Argued: February 7, 2011 5 Decided: August 8, 2011) Docket Nos. 10-409-cv (L); 10-564-cv (XAP) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 - - - - - - - - - - - - - - - - - - - -x CHRISTOPHER MILLEA, Plaintiff-Appellant-CrossAppellee, -v.- 10-409-cv (L) 10-564-cv (XAP) METRO-NORTH RAILROAD COMPANY, Defendant-Appellee-CrossAppellant. - - - - - - - - - - - - - - - - - - - -x Before: DENNIS JACOBS, Chief Judge, PETER W. HALL, Circuit Judge, SHIRA A. SCHEINDLIN, District Judge.* Following a jury trial in the United States District Court for the District of Connecticut (Bryant, J.), * The Honorable Shira A. Scheindlin, of the United States District Court for the Southern District of New York, sitting by designation. 1 plaintiff Christopher Millea won partial victory on his 2 claims under the Family Medical Leave Act ( FMLA ). 3 the defendant, Metro-North Railroad Co. ( Metro-North ), 4 cross-appeal. 5 the jury charge should have adopted the standard set forth 6 for Title VII retaliation in Burlington Northern & Sante Fe 7 Railway Co. v. White, 548 U.S. 53 (2006). 8 appeals the award of only $204 in attorneys fees on his one 9 successful claim, that Metro-North interfered in his He and Millea argues that, on his retaliation claim, Millea also 10 exercise of FMLA rights. 11 denial of its Rule 50 motion for judgment as a matter of law 12 on the interference claim. 13 denial of Metro-North s motion. 14 erred in rejecting the Burlington Northern jury charge, and 15 this error prejudiced the plaintiff, we vacate and remand 16 for a new trial on the retaliation claim. 17 the award of attorneys fees and remand for recalculation in 18 conformity with the lodestar method. 19 20 21 22 23 24 25 26 27 FOR APPELLANT: Metro-North cross-appeals the We affirm the district court s Because the district court We also vacate Joseph D. Garrison, Jr. Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C. New Haven, CT Charles C. Goetsch Cahill Goetsch & Perry, P.C. New Haven, CT 2 1 2 3 4 5 6 7 8 9 10 FOR APPELLEE: Charles A. Deluca Beck S. Fineman William N. Wright Ryan Ryan Deluca LLP Stamford, CT DENNIS JACOBS, Chief Judge: Following a jury trial in the United States District 11 Court for the District of Connecticut (Bryant, J.), 12 plaintiff Christopher Millea won partial victory on his 13 claims under the Family Medical Leave Act ( FMLA ). 14 the defendant, Metro-North Railroad Co. ( Metro-North ), 15 cross-appeal. 16 retaliation claim, the jury charge should have adopted the 17 standard set forth for Title VII retaliation in Burlington 18 Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 19 (2006). 20 attorneys fees on his one successful claim, that Metro- 21 North interfered in his exercise of FMLA rights. 22 North cross-appeals the denial of its Rule 50 motion for 23 judgment as a matter of law on the interference claim. 24 affirm the district court s denial of Metro-North s motion. 25 Because the district court erred in rejecting the 26 Burlington Northern jury charge, and this error prejudiced 27 the plaintiff, we vacate and remand for a new trial on the He and Millea argues that, on his unsuccessful Millea also appeals the award of only $204 in 3 Metro- We 1 retaliation claim. We also vacate the award of attorneys 2 fees and remand for recalculation in conformity with the 3 lodestar method. 4 5 6 BACKGROUND Christopher Millea suffers from severe post-traumatic 7 stress disorder as a result of combat as a Marine during 8 the First Gulf War. 9 medication, he suffers unpredictable panic attacks and Notwithstanding psychotherapy and 10 exhaustion that can require time off work on short notice. 11 In 2001, Millea began working for Metro-North, a tri-state 12 area commuter railroad. 13 leave under the FMLA; Metro-North approved his application 14 and granted him 60 days of intermittent FMLA leave for 15 2006. 16 The Incident. In 2005, he applied for special In the summer of 2006, Millea was 17 working in a Stamford storeroom under supervisor Earl 18 Vaughn, with whom Millea had developed a contentious 19 relationship. 20 September 18, 2006, developed into a heated disagreement 21 that triggered one of Millea s panic attacks. 22 immediately left work to see his doctor. 23 encounter with Vaughn led to the attack, Millea did not A phone conversation with Vaughn on 4 Millea Because the 1 inform Vaughn about his unforeseen FMLA leave; instead, he 2 advised Garrett Sullivan, the Lead Clerk, and asked 3 Sullivan to advise Vaughn, which Sullivan did. 4 day, Millea called Sullivan at 5:45am to report that he was 5 taking another FMLA day; Sullivan again relayed the 6 information to Vaughn. 7 timely, although indirect, notice of Millea s use of FMLA 8 leave. 9 The next In both instances, Vaughn received Metro-North s internal leave policy provides, in 10 relevant part, [i]f the need for FMLA leave is not 11 foreseeable, employees must give notice to their supervisor 12 as soon as possible. 13 of his two absences directly, Vaughn told Metro-North s 14 payroll department to log Millea s absences as non-FMLA 15 leave. 16 of Millea, which resulted in a formal Notice of Discipline 17 being placed in his employment file for one year. 18 Notice was expunged after a year, Millea having had no 19 further disciplinary incidents. 20 Millea voluntarily transferred to a custodian janitorial 21 job, which paid slightly less but was not supervised by 22 Vaughn. Because Millea did not notify Vaughn Metro-North then opened an official investigation 5 The After the investigation, 1 The Complaint. Millea s complaint against Metro-North 2 alleges that he never violated Metro-North s internal leave 3 policy because he notified Vaughn (indirectly) of his 4 absences, or, in the alternative, that the aspect of Metro- 5 North s policy he violated was void because it conflicted 6 with the regulations implementing the FMLA. 7 three claims: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Millea alleges 1. Interference with Millea s ability to take FMLA leave. See 29 U.S.C. § 2615(a)(1) ( It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter. ). 2. Retaliation against Millea for taking FMLA leave by: (i) placing a notice of discipline in his employment file for a year; (ii) requiring him to update his FMLA certification; (iii) creating a work environment that motivated him to transfer to a lower paying job; (iv) delaying approval of his bid for the lead custodian position in 2009; and (v) subjecting him to heightened managerial surveillance. See 29 U.S.C. § 2615(a)(2) ( It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter. ). 3. Intentional infliction of emotional distress ( IIED ). The Answer. On the interference claim, Metro-North 33 answered that it was entitled to log Millea s absences as 34 non-FMLA leave because he violated Metro-North s legally 35 valid internal leave policy. On the retaliation claim, 6 1 Metro-North answered that none of the claimed acts of 2 retaliation was the result of Millea s use of FMLA leave, 3 and none was materially adverse. 4 North answered that any violation of the FMLA was not done 5 intentionally or outrageously and so could not amount to 6 IIED. 7 The Trial. On the IIED claim, Metro- Millea s suit against Metro-North was 8 tried in May 2009. Millea requested that the court charge 9 the jury on the definition of materially adverse 10 employment action using the standard articulated by the 11 Supreme Court in Burlington Northern & Santa Fe Railway Co. 12 v. White, 548 U.S. 53 (2006) ( Burlington Northern ), a 13 Title VII retaliation claim case. 14 proposed charge on the ground that this case involved the 15 FMLA, not Title VII, and instead issued an instruction with 16 a narrower definition of materially adverse. The court rejected the 17 The jury returned a verdict in favor of Millea on his 18 interference claim, awarding him $612.50 in lost wages and 19 other damages. 20 both the retaliation and IIED claims. 21 costs and attorneys fees, and the court awarded $204 in 22 attorneys fees and $18,643 in costs. 23 for judgment as a matter of law on the interference claim The jury found in favor of Metro-North on 7 Millea moved for Metro-North moved 1 and for its costs associated with the retaliation and EEID 2 claims. 3 The court denied these motions. Both parties now appeal. 4 5 DISCUSSION 6 This appeal and cross-appeal together present three 7 questions. First, did the district court err in denying 8 Metro-North s request for judgment as a matter of law on 9 Millea s interference claim? Second, did the district 10 court commit nonharmless error when it rejected Millea s 11 proposed retaliation instruction based on the Burlington 12 Northern standard? 13 discretion in awarding Millea only $204 in attorneys fees 14 for his successful interference claim? Third, did the district court abuse its 15 16 17 I We review a district court s ruling on a Rule 50 18 motion de novo, and apply the same standard used by the 19 district court below. 20 Cir. 2004). 21 if there is no legally sufficient evidentiary basis for a 22 reasonable jury to find for the prevailing party on that 23 claim. Cobb v. Pozzi, 363 F.3d 89, 101 (2d Judgment as a matter of law is available only Fed. R. Civ. P. 50(a)(1). 8 Judgment as a matter of 1 law is only granted when (1) there is such a complete 2 absence of evidence supporting the verdict that the jury s 3 findings could only have been the result of sheer surmise 4 and conjecture, or (2) there is such an overwhelming amount 5 of evidence in favor of the movant that reasonable and fair 6 minded persons could not arrive at a verdict against it. 7 Cruz v. Local Union No. 3 of the Int l Bhd. of Elec. 8 Workers, 34 F.3d 1148, 1154 (2d Cir. 1994) (brackets and 9 internal quotation marks omitted). 10 11 A 12 Metro-North argues there is no legal basis on which 13 the jury could have concluded that Metro-North interfered 14 with Millea s exercise of his FMLA rights. 15 concedes that Millea was entitled to take FMLA leave and 16 that it disciplined Millea for his use of such leave, but 17 argues that such discipline was justified as a matter of 18 law by Millea s failure to comply with Metro-North s 19 internal leave policy requiring an employee to notify his 20 supervisor directly when FMLA leave is taken. 21 dispute that a company may discipline an employee for 22 violating its internal leave policy as long as that policy 23 is consistent with the law; however, we conclude that, on 9 Metro-North There is no 1 these facts, Metro-North s internal leave policy is 2 inconsistent with the FMLA. 3 The FMLA generally requires employees to comply with 4 the employer s usual and customary notice and procedural 5 requirements for requesting leave. 6 825.303(c). 7 unusual circumstances or where the company policy 8 conflicts with the law. 29 C.F.R. § However, this requirement is relaxed in Id. 9 The regulations implementing the FMLA provide that 10 when an employee s need for FMLA leave is unforeseeable (as 11 Millea s was), [n]otice may be given by the employee s 12 spokesperson (e.g., spouse, adult family member, or other 13 responsible party) if the employee is unable to do so 14 personally. 15 expressly condones indirect notification when the employee 16 is unable to notify directly, Metro-North s policy 17 conflicts with the FMLA and is therefore invalid to the 18 extent it requires direct notification even when the FMLA 19 leave is unforeseen and direct notification is not an 20 option. Id. § 825.303(a). Because this regulation 21 Whether Millea s situation on September 2006 22 constituted an unusual circumstance in which he was 23 unable to personally notify Vaughn is a question of fact, 10 1 not of law. The jury found that Millea gave proper notice, 2 meaning his notice complied with the FMLA and all legally 3 valid aspects of Metro-North s internal leave policy. 4 Neither the district court nor this Court may second-guess 5 this finding. 6 7 8 B Metro-North also argues that the jury verdict on the 9 interference claim must be vacated because the district 10 court committed legal error by charging the jury that an 11 employer s internal leave policy may not be more strict 12 than the requirements of the FMLA. 13 instruction was impermissibly broad and vague. 14 disagree. 15 Metro-North argues this We The district court charged the jury: 16 17 18 19 20 21 22 23 24 25 26 27 28 In determining whether [Millea s] notice occurred as soon as practicable, you must consider all of the facts and circumstances of the situation. You should note that under the FMLA, notice may be given by the employee, by a family member, or other responsible adult, such as a treating physician or other medical professional. You should also note that an employer may impose customary rules and procedures for notification, provided that they are not more stringent than the requirements under the Family Medical Leave Act. This instruction is not misleading: 29 that the FMLA authorizes indirect notification and that an 11 It correctly explains 1 employer is free to implement internal notification rules 2 only to the extent those rules are not more strict than the 3 law allows. 4 Metro-North argues that the not more stringent 5 language is overly broad because companies may implement 6 internal leave policies more strict than the FMLA as long 7 as the timing requirement is not more strict than the 8 FMLA permits. 9 stringency, requiring certain latitude in terms of timing, This is incorrect: The FMLA limits 10 method of notification, etc. If the law expressly states 11 that an employee may do a thing, a company s internal leave 12 policy may not prohibit it. 13 implementing regulations state that an employee in Millea s 14 position may notify his employer indirectly of his need for 15 unforeseen medical leave; a company s internal leave policy 16 may not require otherwise. 17 captured this idea. In this case, the FMLA s The jury instruction correctly 18 19 20 C Even if Millea prevails on his interference claim, he 21 would be entitled to no damages unless he suffered a 22 compensable loss as a result of the alleged interference. 23 The FMLA provides that an employer interfering with its 12 1 employee s legitimate use of FMLA-protected leave shall be 2 liable to [the] employee affected...for damages equal 3 to...the amount of...any wages, salary, employment 4 benefits, or other compensation denied or lost to such 5 employee by reason of the violation. 6 2617(a)(1)(A)(i)(I). 7 logged Millea s medical leave as sick leave instead of 8 FMLA leave, Millea suffered no compensable loss because 9 both types of leave were unpaid, and that it is therefore 29 U.S.C. § Metro-North argues that when it 10 entitled to judgment as a matter of law that it owes Millea 11 nothing. 12 It appears from the record that Metro-North never made 13 this argument before the district court. Its opposition to 14 Millea s motion for attorneys fees implicitly conceded the 15 validity of the $612.50 damages award: 16 as the basis for its calculation of attorneys fees. 17 Arguments raised for the first time on appeal are deemed 18 waived. 19 (2d Cir. 2006) ( [T]his court ordinarily will not hear 20 arguments not made to the district court. ). 21 tacitly accepted the validity of the damage award before It used this award Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215, 221 13 Having 1 the district court, Metro-North waived this argument even 2 if it had merit, which is doubtful.2 3 4 II 5 Millea challenges the judgment dismissing his 6 retaliation claim on the ground that the jury instruction 7 defining materially adverse action constituted reversible 8 error. 9 instruction. We review de novo a claim of an erroneous jury Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 10 115 (2d Cir. 2000). To justify a new trial, a jury 11 instruction must be both erroneous and prejudicial. 12 116. 13 jury as to the correct legal standard or does not 14 adequately inform the jury on the law. Id. at A jury instruction is erroneous if it misleads the 2 Id. An erroneous Section 2617(a)(1)(A) allows recovery for lost benefits and other compensation in addition to lost wages. Logging Millea s FMLA leave as sick leave presumably reduced the number of remaining sick leave days to which Millea was entitled-- presumably, because it is assumed that Metro-North does not grant limitless unpaid sick leave (the record was never developed on this point precisely because Metro-North failed to raise the issue before the district court). Furthermore, the controversy created by Vaughn s decision to change Millea s leave from FMLA leave to sick leave forced Millea to spend considerable time on the internal investigations and disciplinary proceeding, which may have resulted in missed work hours and lost wages. 14 1 jury instruction is prejudicial unless the court is 2 convinced that the error did not influence the jury s 3 verdict. Id. 4 5 6 A Millea sought a charge using the definition of 7 materially adverse employment action articulated by the 8 Supreme Court in the Title VII lawsuit, Burlington Northern 9 & Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006). 10 particular, Millea proposed that an adverse employment 11 action occurs when a reasonable employee in the 12 plaintiff s position would have found the alleged 13 retaliatory action materially adverse, and that a 14 retaliatory action is materially adverse when the action 15 would have been likely to dissuade or deter a reasonable 16 worker in the plaintiff s position from exercising his 17 legal rights. 18 19 20 21 22 23 24 25 26 In The district court rejected Millea s proposed instruction, instead charging the jury: An adverse employment action is a materially adverse change in the terms and conditions of employment. Examples of material adverse change in the terms and conditions of employment are termination, demotion, loss of benefits, or significantly diminished responsibilities. An alteration of job responsibilities and a mere 15 1 2 3 inconvenience are not examples of materially adverse changes in the terms and conditions of employment. 4 Millea argues that in light of the reasoning in Burlington 5 Northern, the district court s definition of materially 6 adverse was impermissibly narrow and therefore erroneous. 7 We agree. 8 9 Burlington Northern expanded the definition of materially adverse employment action for purposes of 10 Title VII retaliation claims. 11 must show that a reasonable employee would have found the 12 challenged action materially adverse, which in this context 13 means it well might have dissuaded a reasonable worker from 14 making or supporting a charge of discrimination. 15 at 68 (internal quotation marks omitted). 16 rejected the proposition that an actionable act of 17 retaliation must relate to the specific terms and 18 conditions of the employee s employment, id. at 61, and 19 construed materially adverse action broadly to include 20 changes in employment life outside of the terms and 21 conditions of employment. 22 only this broader definition fulfilled the purpose of Title 23 VII s anti-retaliation provision: Id. 16 Now, a Title VII plaintiff 548 U.S. The Court The Court concluded that preventing employers 1 from deterring their employees from exercising their 2 legitimate legal rights. 3 Id. at 68. This rationale applies with comparable force to the 4 anti-retaliation provision of the FMLA. The FMLA s anti- 5 retaliation provision has the same underlying purpose as 6 Title VII--and almost identical wording. 7 § 2615(a)(2) ( It shall be unlawful for any employer 8 to...discriminate against any individual for opposing any 9 practice made unlawful by this subchapter. ), with 42 Compare 29 U.S.C. 10 U.S.C. § 2000e-3(a) ( It shall be an unlawful employment 11 practice for an employer to discriminate against any of his 12 employees...because he has opposed any practice made an 13 unlawful employment practice by this subchapter. ). 14 We therefore join our sister circuits that have 15 considered this issue and apply the Burlington Northern 16 standard for materially adverse action to the FMLA context. 17 See Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th 18 Cir. 2008) (applying Burlington Northern anti-retaliation 19 standard to FMLA retaliation claims); Metzler v. Fed. Home 20 Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 21 2006) (same); McArdle v. Dell Prods., L.P., 293 F. App x 22 331, 337 (5th Cir. 2008) (unpublished opinion) (per curiam) 23 (same); DiCampli v. Korman Cmtys., 257 F. App x 497, 500-01 17 1 (3d Cir. 2007) (unpublished opinion) (same); Csicsmann v. 2 Sallada, 211 F. App x 163, 167-68 (4th Cir. 2006) 3 (unpublished opinion) (per curiam) (same). 4 the FMLA s anti-retaliation provision, a materially adverse 5 action is any action by the employer that is likely to 6 dissuade a reasonable worker in the plaintiff s position 7 from exercising his legal rights. For purposes of 8 By instructing the jury that a material adverse 9 action is restricted solely to changes in the employee s 10 terms and conditions of employment, the district court 11 committed legal error. 12 13 14 B Millea further argues that the erroneous jury 15 instruction prejudiced him, and that retrial is required on 16 his retaliation claim. 17 We agree. Of the five retaliatory acts alleged by Millea, the 18 jury found only one causally related to Millea s use of 19 FMLA leave: 20 in Millea s employment file. 21 court s jury instruction is harmless as to the four other 22 actions due to lack of causation, and we affirm the 23 judgment in favor of Metro-North as to those four actions. the placement of a formal letter of reprimand The error in the district 18 1 As for the letter of reprimand, Metro-North argues 2 that any error by the district court was harmless because 3 the adverse effect of the letter was not material even 4 under the Burlington Northern standard. We disagree. 5 The Burlington Northern materiality standard is 6 intended to separate significant from trivial harms so 7 that employee protection statutes such as Title VII and the 8 FMLA do not come to create a general civility code for the 9 American workplace. Burlington Northern, 548 U.S. at 68 10 (internal quotation marks omitted). 11 significant from the trivial, the Burlington Northern 12 standard employs an objective test, which considers 13 whether the action would deter a reasonable employee from 14 exercising his rights. 15 annoyances, and simple lack of good manners will not give 16 rise to actionable retaliation claims. 17 objective light, we think (and conclude that a reasonable 18 jury could decide) that a letter of reprimand would deter a 19 reasonable employee from exercising his FMLA rights. 20 formal reprimand issued by an employer is not a petty 21 slight, minor annoyance, or trivial punishment; it can 22 reduce an employee s likelihood of receiving future 23 bonuses, raises, and promotions, and it may lead the Id. To separate the [P]etty slights, minor 19 Id. In this A 1 employee to believe (correctly or not) that his job is in 2 jeopardy. 3 when, as here, the letter does not directly or immediately 4 result in any loss of wages or benefits, and does not 5 remain in the employment file permanently. A reasonable jury could conclude as much even 6 Because the erroneous jury instruction differs 7 materially from the proper jury instruction that Millea 8 proposed, and because a reasonable jury could conclude that 9 the letter of reprimand constitutes retaliation under the 10 proper jury instruction, we conclude that the error was 11 prejudicial. 12 Metro-North argues that any error was harmless in any 13 event because Millea suffered no lost wages, salary, or 14 employment benefits as a result of the alleged retaliation, 15 and that no retrial is needed because Millea would receive 16 no relief even if he prevailed. 17 We disagree. First, because Millea did not prevail on his 18 retaliation claim, the jury made no factual findings as to 19 whether Millea suffered any lost wages or benefits as a 20 result of Metro-North s alleged retaliation. 21 § 2617(a)(1)(A), Millea is entitled to recover not just 22 lost wages and benefits but also any actual monetary 23 losses sustained as a direct result of Metro-North s 20 Under 1 retaliation. 2 losses: 3 compelled to transfer to a lower paying job, thereby losing 4 income. 5 court to show that the letter of reprimand--if the jury 6 determines that it constituted retaliation--caused this 7 loss (and others). 8 Millea has asserted that he sustained such As a result of Metro-North s actions, he felt Millea should have an opportunity before the trial Second, even if Millea cannot show specific monetary 9 losses caused by the letter of reprimand, he may be 10 entitled to equitable relief under § 2617(a)(1)(B), 11 including any promotions or job transfers he may have been 12 denied. 13 of reprimand constituted illegal retaliation, he deserves 14 an opportunity to pursue such equitable relief. Again, if Millea convinces a jury that the letter 15 Finally, the success of Millea s retaliation claim 16 affects the attorneys fees to which Millea is entitled 17 under the FMLA s fee-shifting provision. 18 the district court reduced the attorneys fees 19 significantly because Millea prevailed only on the least 20 significant of his three claims. 21 R.R. Co., No. 3:06-cv-1929, 2010 WL 126186, at *4-8 (D. 22 Conn. Jan. 8, 2010). 23 on his retaliation claim at retrial. After the trial, Millea v. Metro-North This would change if Millea succeeded 21 1 In sum, we hold that the definition of materially 2 adverse employment action articulated by the Supreme Court 3 in Burlington Northern applies to FMLA retaliation claims. 4 The district court s failure to instruct the jury using 5 this standard was an error that may have influenced the 6 verdict, so it is not harmless and necessitates a new 7 trial. 8 North on Millea s FMLA retaliation claim and remand for a 9 new trial on this claim alone. We therefore vacate the judgment in favor of Metro- We affirm the judgment in 10 favor of Millea on his FMLA interference claim and the 11 judgment in favor of Metro-North on Millea s IIED claim. 12 13 14 III The FMLA directs that the district court shall, in 15 addition to any judgment awarded to the plaintiff, allow a 16 reasonable attorney s fee, reasonable expert witness fees, 17 and other costs of the action to be paid by the defendant. 18 29 U.S.C. § 2617(a)(3). 19 We review attorneys fee awards for abuse of 20 discretion. McDaniel v. Cnty. of Schenectady, 595 F.3d 21 411, 416 (2d Cir. 2010). 22 discretion if it (1) bases its decision on an error of law 23 or uses the wrong legal standard; (2) bases its decision on A district court abuses its 22 1 a clearly erroneous factual finding; or (3) reaches a 2 conclusion that, though not necessarily the product of a 3 legal error or a clearly erroneous factual finding, cannot 4 be located within the range of permissible decisions. 5 (internal quotation marks omitted). 6 Id. Millea argues the district court abused its discretion 7 by calculating the fee award as a proportion of his 8 monetary recovery. 9 fee award and remand for recalculation in accordance with 10 We agree, and we therefore vacate the the lodestar method and this opinion.3 11 12 13 A The district court retains discretion to 14 determine...what constitutes a reasonable fee. 15 Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998) 16 (internal quotation marks omitted). 17 discretion is not unfettered, and when a prevailing party 3 LeBlanc- However, this Because we vacated the judgment in favor of MetroNorth on Millea s retaliation claim, Millea could succeed on this claim at retrial, necessitating a recalculation of his attorneys fees. Such a recalculation would render the errors made by the district court in its original calculation moot. However, we still must reach the fee award issue here because the legal error in the district court s original calculation necessitates a recalculation even if Millea s retaliation claim fails when retried. 23 1 is entitled to attorneys fees, the district court must 2 abide by the procedural requirements for calculating those 3 fees articulated by this Court and the Supreme Court. 4 Both this Court and the Supreme Court have held that 5 the lodestar--the product of a reasonable hourly rate and 6 the reasonable number of hours required by the case-- 7 creates a presumptively reasonable fee. 8 Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 9 522 F.3d 182, 183 (2d Cir. 2008); see also Perdue v. Kenny Arbor Hill 10 A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010). 11 lodestar is not always conclusive, its presumptive 12 reasonability means that, absent extraordinary 13 circumstances, failing to calculate it as a starting point 14 is legal error. 15 calculation is unnecessary, but compliance with the Supreme 16 Court s directive that fee award calculations be objective 17 and reviewable, implies the district court should at least 18 provide the number of hours and hourly rate it used to 19 produce the lodestar figure. 20 While the A detailed explanation of the lodestar Perdue, 130 S. Ct. at 1674. It is unclear whether the district court calculated 21 the lodestar. The opinion references Millea s request for 22 $144,792 in attorneys fees, but does not explain how this 23 figure was calculated. Millea, 2010 WL 126186, at *6. 24 1 2 B 3 While a district court must calculate the lodestar, it 4 is not conclusive in all circumstances. Perdue, 130 S. 5 Ct. at 1673. 6 it does not adequately take into account a factor that may 7 properly be considered in determining a reasonable fee. 8 Id. 9 rare circumstances, because the lodestar figure A district court may adjust the lodestar when However, such adjustments are appropriate only in 10 [already] includes most, if not all, of the relevant 11 factors constituting a reasonable attorney s fee. 12 (internal quotation marks omitted). 13 may not adjust the lodestar based on factors already 14 included in the lodestar calculation itself because doing 15 so effectively double-counts those factors. 16 lodestar can be adjusted only by factors relevant to the 17 determination of reasonable attorneys fees that were not 18 already considered in the initial lodestar calculation. 19 The district court erred by adjusting the initial $144,792 20 figure--which is presumably the lodestar--by several 21 factors. 22 23 Id. For example, a court Instead, the First, the district court reduced its initial figure because it concluded Millea s case was not particularly 25 1 complicated and did not involve any novel legal issues 2 significant to the legal community. 3 126186, at *5. 4 generally may not be used as a ground for [adjusting the 5 lodestar] because they are already included in the 6 lodestar calculation itself, being fully reflected in the 7 number of billable hours recorded by counsel. 8 S. Ct. at 1673 (internal quotation marks and bracket 9 omitted). Millea, 2010 WL [T]he novelty and complexity of a case Perdue, 130 Thus, while a district court may not adjust the 10 lodestar based on these factors, it may use them to 11 determine the reasonable number of hours the case requires. 12 That is a permissible consideration and one that a trial 13 judge is particularly well-situated to evaluate. 14 Second, the district court impermissibly reduced its 15 initial figure because it concluded that the interference 16 claim--the only claim on which Millea prevailed--had no 17 pubic policy significance. 18 By enacting a fee-shifting provision for FMLA claims, 19 Congress has already made the policy determination that 20 FMLA claims serve an important public purpose Millea, 2010 WL 126186, at *6. 26 1 disproportionate to their cash value. 2 guess this legislative policy decision.4 3 We cannot second- Third, the district court impermissibly reduced its 4 initial award because Millea was unsuccessful on his 5 retaliation and IIED claims. 6 *5-6. 7 no reason to adjust the lodestar because the lodestar 8 should have already excluded this claim. 9 a lodestar, the number of hours spent on a case should Millea, 2010 WL 126186, at Millea s lack of success on the IIED claim provides When calculating 10 include only those hours spent on claims eligible for fee- 11 shifting. 12 statutory claims not subject to fee-shifting must be 13 excluded to reflect the default rule that each party must 14 pay its own attorney s fees and expenses. 5 Hours spent solely on common law claims and Perdue, 130 S. 4 To the extent we have held otherwise in the past, see Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997) ( [W]here the damage award is nominal or modest, the injunctive relief has no systemic effect of importance, and no substantial public interest is served, a substantial fee award cannot be justified. ), such holdings were (at least) impaired by the declaration in Perdue that the lodestar is the guiding light of our fee-shifting jurisprudence, that it is presumptively reasonable, that it includes most, if not all, of the relevant factors in determining a reasonable fee award, and that it should only be deviated from in rare and exceptional circumstances. Perdue, 130 S. Ct. at 1672-73 (internal quotation marks omitted). 5 Hours spent on legal work that furthers both feeshifting and non-fee-shifting claims may be included in the 27 1 Ct. at 1671. Excluding these ineligible claims prevents 2 abuse: 3 or borderline frivolous fee-shifting claims into a 4 litigation in order to collect attorneys fees on claims 5 for which fee-shifting is not available. 6 reasons, Millea s lack of success on his retaliation claim 7 also provided no basis for adjusting the lodestar. 8 FMLA s fee-shifting provision only applies to claims on 9 which the plaintiff prevails. Plaintiffs should not be able to inject frivolous For similar The See 29 U.S.C. § 2617(a)(3). 10 Hours spent on unsuccessful fee-shifting claims, like those 11 spent on claims wholly ineligible for fee-shifting, must be 12 excluded from the reasonable hours spent on the case when 13 calculating the lodestar. 14 Finally, the district court impermissibly reduced its 15 initial fee award based on an incorrect conclusion that 16 Millea s victory was de minimis. 17 at *6. 18 contrary, the award was more than 100% of the damages 19 Millea sought on that claim. 20 contemptuous rejection by the jury. Millea, 2010 WL 126186, The $612.50 award was not de minimis; to the It was not a derisory or The district court lodestar calculation because they would have been expended even if the plaintiff had not included non-fee-shifting claims in his complaint. 28 1 conflated a small damages award with a de minimis victory. 2 True, where the plaintiff manages to prevail on a 3 technicality in a mostly frivolous lawsuit, a court should 4 award no attorneys fees to discourage such lawsuits. 5 Farrar v. Hobby, 506 U.S. 103, 114-15 (1992). 6 [t]hat is not to say that all nominal damages awards are 7 de minimis. 8 victory make. 9 concurring). However, Nominal relief does not necessarily a nominal Farrar, 506 U.S. at 120-21 (O Connor, J., FMLA claims are often small-ticket items, and 10 small damages awards should be expected without raising the 11 inference that the victory was technical or de minimis. 12 an expense of time is required to obtain an award that is 13 not available by voluntary compliance or offer of 14 settlement, the expense advances the purposes of the 15 statute. 16 frivolous suit, litigation outcomes are only relevant to 17 fee award calculations when they are a direct result of the 18 quality of the attorney s performance. 19 at 1673-74. 20 generally should not be used to adjust the lodestar because 21 considerations concerning the quality of a prevailing 22 party s counsel s representation normally are reflected in 23 the reasonable hourly rate used to calculate the lodestar If Absent a purely technical victory in an otherwise Perdue, 130 S. Ct. And the quality of an attorney s performance 29 1 initially. Id. at 1673 (brackets and internal quotation 2 markets omitted). 3 instances where an adjustment is warranted by the 4 characteristics of the attorney, the trial judge should 5 adjust the attorney s hourly rate in accordance with 6 specific proof linking the attorney s ability to a 7 prevailing market rate. 8 such adjustments should be made when calculating the 9 original lodestar figure. Even in those rare and exceptional Id. at 1674. In other words, The court must also link such 10 adjustments to specific actions of the attorney that 11 indicate a level of performance not accounted for in the 12 prevailing market rate. 13 adjusting the attorneys fee award based on the outcome of 14 the litigation without tying that outcome to the quality of 15 Millea s attorneys and without making the adjustment within 16 the lodestar calculation. Id. The district court erred by 17 18 19 C The district court calculated its final fee award as a 20 proportion of the damages Millea was awarded. 21 WL 126186, at *6. 22 may, in exceptional circumstances, adjust the lodestar, 23 Perdue, 130 S. Ct. at 1673, it may not disregard it This was legal error. 30 Millea, 2010 While a court 1 entirely. 2 recovery is likely to be small, calculating attorneys fees 3 as a proportion of damages runs directly contrary to the 4 purpose of fee-shifting statutes: 5 rights claims of modest cash value can attract competent 6 counsel. 7 generate attorneys fees that are disproportionate to the 8 plaintiff s recovery. 9 discretion when it ignored the lodestar and calculated the 10 Especially for claims where the financial assuring that civil The whole purpose of fee-shifting statutes is to Thus, the district court abused its attorneys fees as a proportion of the damages awarded. 11 12 13 CONCLUSION For the reasons discussed above, the district court s 14 judgment is affirmed in part and vacated in part, and the 15 case is remanded for a retrial solely on Millea s FMLA 16 retaliation claim and for recalculation of attorneys fees 17 in accordance with this opinion and the results of that 18 retrial. 31
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