Arban v. West Publishing Corp.
| Citation | 345 F.3d 390 |
| Decision Date | 24 September 2003 |
| Docket Number | No. 01-2370.,No. 01-2278.,01-2278.,01-2370. |
| Parties | Daniel R. Arban, Plaintiff-Appellee/Cross-Appellant, v. West Publishing Corp., Defendant-Appellant/Cross-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Abraham Singer, PEPPER HAMILTON, Detroit, Michigan, for Appellant.
Marvin B. Bartlett (briefed), William G. Tishkoff (argued and briefed), LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan, for Plaintiff-Appellee Cross-Appellant.
ON BRIEF: Abraham Singer (argued and briefed), Michelle Motowski Lund (briefed), PEPPER HAMILTON, Detroit, Michigan, for Defendant-Appellant Cross-Appellee.
William G. Tishkoff, Marvin B. Bartlett, LONG, BAKER & TISHKOFF LLP, Ann Arbor, Michigan, for Appellee.
Before: KEITH, MOORE, and GIBBONS, Circuit Judges.
Daniel R. Arban brought this action against West Publishing Corporation (West) pursuant to the Family Medical and Leave Act (FMLA), 29 U.S.C. § 2611 et seq. Arban alleged that West violated the FMLA by terminating him while he was on medical leave and by failing to reinstate him at the completion of the leave. Arban also alleged that West violated the FMLA by interfering with, restraining, or denying him his right to take an FMLA leave. The case was tried before a jury, which returned a verdict in favor of Arban. West then filed a motion for judgment as a matter of law or for a new trial, which the district court denied. West appeals. Arban cross-appeals the district court's denial of front pay and liquidated damages and the district court's grant of a stay without bond. For the reasons set forth below, we affirm the district court's denial of West's motion for judgment as a matter of law or for a new trial, reverse and remand the trial court's denial of an award of liquidated damages, affirm the district court's denial of Arban's claim for front pay, and affirm the district court's grant of a stay without bond.
Arban began working as a sales representative for Lawyer's Cooperative Publishing in 1995. Lawyer's Cooperative Publishing merged with West in 1996. Arban has a documented history of gastrointestinal problems, including chronic and severe esophagitis and irritable bowel syndrome, which began in the middle of 1995 or early 1996. In 1997, Arban was promoted from a field sales representative to a regional field sales manager. In this position, he supervised other representatives, while continuing to make sales. In January 1998, Arban voluntarily returned to the position of field sales representative in order to spend more time with his children. At that time Arban's immediate supervisor was Robert Wolfe, who held the position of regional field sales manager. Wolfe, in turn, reported to Nick Nicolini, who served as senior regional field sales manager, and to James Colantino, who served as director of sales.
In February 1998, Richard Carlson, who had replaced Arban as a regional field sales manager, learned that the preexisting account of the Hervas, Sotos law firm in suburban Chicago had been cancelled, that a new account had been generated in the name of James Sotos, and that Arban had misrepresented this account as "a new sales activity." Carlson brought this information to the attention of Wolfe, Nicolini, and Arban. On April 1, 1998, Arban received a warning letter from Wolfe, which stated:
I cannot overstate the seriousness of the situation.... West Online Solutions will now be responsible for supporting an account where the revenue has been cut in half.... This letter will warn you that misrepresentations concerning an account are unacceptable to WEST GROUP. I am confident that there will be no future occurrence of such activity. However, I must include that any future occurrence will subject you to further disciplinary action, up to and including termination from West Group.
On December 16, 1998, Wolfe, Nicolini, and Carlson met with Arban to discuss additional violations of company policy committed by Arban and customer complaints that allegedly had occurred in the intervening months. According to an e-mail sent to Colantino by Wolfe the following day, the meeting began "with a reminder that Dan has been involved in switching names of accounts to achieve new sales that resulted in Dan benefitting from the sale." Wolfe, Nicolini, and Carlson then inquired about the "[i]nconsistency with [Arban's] reported numbers." According to Wolfe, Arban admitted "lack of follow up in getting his orders in." Wolfe also asked Arban about "sending in orders that do not have signatures," and Arban admitted that on at least nine occasions he "did not talk to the decision maker to get a verbal approval." Wolfe explained to Arban that "this is not allowable for Field Reps and is an abuse of our process." In his e-mail, Wolfe noted that Arban also "admitted to adding products to the order without the customer's permission." Wolfe described this as an "event that should cause termination." Wolfe concluded the e-mail with the following statement:
We have numerous examples of gross negligence, fraud, deceit and lack of moral character. These are not areas in which corrective action can be taken. I can merely monitor him more closely. I recommend that Dan be terminated as an employee of West Group in the near future. I also believe that everyone has a right to dignity and respect, Dan should be given the chance to resign.
I welcome any and all feedback from my fellow Managers to see if I have missed any major elements that would allow Dan to continue. His production in [sic] needed, I like the fellow and he truly has great sales skills, unfortunately the negative side outweighs the positives. If I have not been open minded to an alternative that I should consider, please let me know. I have anguished over this decision and keep on coming up with no other workable solutions.
(emphasis added). At trial, Wolfe testified that Colantino "had the final authority to make the decision to terminate Mr. Arban."
In an e-mail to Colantino, Nicolini, and Wolfe sent on the evening of December 17, Carlson noted that he "concur[red] in [Wolfe's] summary" and added that he "believe[d] that [Wolfe's] conclusion is well-supported." At trial, Carlson explained that he believed that "Arban should be terminated from the company" as a result of "[t]he account issues; the misrepresentations of accounts to the company; the trouble to the customers; the problems exceeded the good from Dan." At trial, Nicolini also testified that he agreed with the recommendation to terminate Arban "[b]ecause of all the ongoing things that Dan Arban had done." Finally, Colantino testified that after conferring with Wolfe, Nicolini, and Ira Tiffenberg, a director of human resources for West, he decided to terminate Arban in the middle of December. Colantino testified that in the days following December 17, he communicated to Nicolini his decision to terminate Arban after the holidays. Wolfe also testified that "within a few days of the December 16 meeting" Nicolini told him that "we should go ahead and terminate after the holidays."
On December 21, Wolfe accompanied Arban on a "field ride." At trial, Wolfe testified that the "Field Ride Recap" he prepared after the field ride was "simply a review of what I saw that day with one customer" and "not a general evaluation of Mr. Arban." According to the recap, Arban received a rating of "meets expectations" in all areas. Wolfe testified that he did not "tell Arban that all the problems that were raised at the December 16 meeting were cured," nor did he tell Arban that "everything with him was in good standing." However, Arban testified that after the ride, Wolfe made the following notation at the bottom of the recap: "visited five accounts, all five accounts corrected." The handwritten comments on the form provided in the joint appendix are illegible. Arban also testified that at no point during the field ride did Wolfe indicate that he "hadn't properly followed up from the 16th." Arban stated that Wolfe told him that he was "very satisfied" and did not indicate that any action would be taken against Arban.
Early in the morning of December 23, according to his testimony, Arban awoke with "a severe amount of acid" in his throat. Arban called his physician's office and described his condition to an associate of his physician, who called in a prescription to a pharmacy near Arban's residence. The office notes from the call state "anxiety reflux ... wants time off work." Arban picked up the medication later that day.
On December 24, Arban contacted Joyce Van Sciver, a human resources representative for West. Arban "explained what had happened" and that he would "be needing to take some time off." Arban was told that there were no special forms needed to request an FMLA leave, but that he should contact West's disability insurance carrier. Arban also told Van Sciver that he had an appointment to see his physician on December 28. A "leave of absence form" prepared by Van Sciver on December 29 indicates that Arban's leave began on December 25, 1998. A January 19 letter to Arban from West's disability insurance carrier states that Arban's claim for short-term disability benefits was approved for the period between January 4 and January 21.
On December 28, Arban visited his physician, who provided him with a note stating that he had been treated for "severe esophagitis and stress" and adding that Arban would be "unable to work for 3 wks." Arban hand-delivered medical certification forms he had received from West's disability insurance carrier to his physician's office on December 29, and Arban's physician completed the forms on January 8.
Arban notified Wolfe of his medical leave via telephone on December 28. In an e-mail to Nicolini sent that...
To continue reading
Request your trial
-
Schobert v. CSX Transp. Inc.
...entitlements set forth in the FMLA—for example, a twelve-week leave or reinstatement after taking medical leave." Arban v. West Publ'g Corp. , 345 F.3d 390, 401 (6th Cir. 2003). Relatedly, the FMLA's anti-retaliation provision, 29 U.S.C. § 2615(a)(2), prohibits an employer from discharging ......
-
Thompson v. Chase Bankcard Serv., Inc.
...considering an employee's use of FMLA leave "as a negative factor in employment actions." 29 C.F.R. § 825.220(c); Arban v. West Publ'g Corp., 345 F.3d 390, 403 (6th Cir.2003).1. Prima Facie Case When an employee alleges that she has been retaliated against for exercising her rights under th......
-
Turner v. Sullivan University Systems, Inc.
...has searched for case law interpreting the FMLA and found very little. However, the Sixth Circuit stated in Arban v. West Publishing Corp., 345 F.3d 390, 407-08 (6th Cir.2003) that "this court previously has turned to the which contains similar remedial provisions, for guidance in interpret......
-
Harvot v. Solo Cup Co.
...and "equitable relief" still indicates an intent to make juries available. Frizzell, 154 F.3d at 643; see also Arban v. West Publ'g Corp., 345 F.3d 390 (6th Cir.2003); Nero v. Indus. Molding Corp., 167 F.3d 921 (5th Cir.1999); Haschmann v. Time Warner Entm't Co., 151 F.3d 591 (7th Cir.1998)......
-
Remedies available under the adea
...has decided that once the court determines that front pay is appropriate, the amount is set by the jury. Arban v. West Publishing Corp. , 345 F.3d 390, 406 (6th Cir. 2003) (noting that the determination of the precise amount of front pay is a question for the jury). C. COSTS AND ATTORNEYS’ ......
-
Chapter § 1-77 29 CFR § 825.702. Interaction With Federal and State Anti-Discrimination Laws
...defending against this. First, there is a strong presumption that they be awarded upon a finding of a violation. Arban v. W. Publ'g Corp., 345 F.3d 390, 408 (6th Cir. 2003). Texas courts adhere to this reasoning. • Firth v. Don McGill of W. Houston, Ltd., No. H-04-0659, 2006 WL 846377 (S.D.......
-
Labor and Employment - Patrick L. Coyle and Alexandra v. Garrison
...v. Mathews, 547 F.3d 905 (8th Cir. 2008); Bones v. Honeywell Int'l, Inc., 366 F.3d 869 (10th Cir. 2004); Arban v. West Publ'g Corp., 345 F.3d 390 (6th Cir. 2003). 20. Krutzig, 602 F.3d at 1236; see, e.g., Phillips, 547 F.3d at 911-12; Bones, 366 F.3d at 877-78; Arban, 345 F.3d at 401. 21. K......
-
Chapter § 1-45 29 CFR § 825.216. Limitations on an Employee's Right to Reinstatement
...decision to terminate the employee was made, may result in the denial of summary judgment and a jury trial. • Arban v. West Publ'g Corp., 345 F.3d 390 (6th Cir. 2003) (employee had numerous performance deficiencies; on the day he commenced FMLA leave, these deficiencies were summarized in a......