Duty v. Norton-Alcoa Proppants

Decision Date18 June 2002
Docket NumberNo. 01-1478.,01-1478.
Citation293 F.3d 481
PartiesSam DUTY, Appellee, v. NORTON-ALCOA PROPPANTS, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Tim Boe, argued, Little Rock, AR (David P. Martin and Jo-Jo Baldwin, Little Rock, AR, on the brief), for appellant.

R. Chris Parks, argued, Fort Smith, AR (E. Diane Graham, Fort Smith, AR, on the brief), for appellee.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and NANGLE,1 District Judge.

McMILLIAN, Circuit Judge.

Norton-Alcoa Proppants ("NAP") appeals from a final order entered in United States District Court2 denying its motion for judgment as a matter of law or for a new trial, amendment of the judgment, or remittur following a jury award of $305,000.00 in favor of its former employee Sam Duty for compensatory and liquidated damages arising from violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and punitive damages arising from violations of the Arkansas Civil Rights Act ("ACRA"), Ark. Code Ann. § 16-123-101 et seq. Duty v. Norton-Alcoa Proppants, No. 99-2097 (W.D.Ark. Jan. 19, 2001) (memorandum opinion and order). For reversal, NAP argues that (1) the district court erred in finding a sufficient evidentiary basis to support the jury verdict, (2) the district court abused its discretion in refusing to admit evidence, (3) the district court erred in failing to remit the compensatory and punitive damages awards, and (4) the district court abused its discretion in awarding liquidated damages. For the reasons discussed below, we affirm the judgment of the district court.


Jurisdiction in the district court was proper based upon 28 U.S.C. §§ 1331, 1367, and 29 U.S.C. §§ 2601-2654. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(a).


Duty began working for NAP in 1979 and over the years performed several jobs, most recently that of a mechanic and welder ("maintenance mechanic"). The job required heavy work and heavy lifting. The NAP plant is multi-leveled, requiring workers to climb stairs and ladders to reach five to six levels, up to 100 feet above the ground.

In addition to his NAP job, Duty also worked on his 77-acre farm. At the time of trial, Duty worked between forty and sixty hours a week on his farm, engaging in general farm labor including feeding cattle, baling hay, driving a dump truck, driving a tractor, hauling dirt, and working on farm machinery.

In 1981, Duty suffered a work-related injury at NAP, which resulted in episodes of neck pain and numbness in his hands. During one episode in April 1997, Duty consulted Dr. Charles Chalfant, who wrote a note to excuse Duty from work for three weeks. As a policy, NAP provides its employees with twenty-six weeks of short-term medical leave and disability pay. Pursuant to Dr. Chalfant's note, Davine White, NAP's Human Resources Coordinator, processed a short-term disability claim for Duty. As part of this process, Duty authorized White to contact his medical care providers on an ongoing basis to obtain the information necessary to process his weekly disability income checks during the period of his short-term disability benefits. These benefits continued from April to October 1997.

As part of its personnel policies, NAP requires employees desiring to return to work following a sick leave to present a physician's fitness-for-duty certificate showing that the employee is able to perform his or her essential job functions. NAP refuses to return an employee to his or her former position if the doctor imposes work restrictions that prevent an employee from safely performing those essential job functions.

In July 1997, during Duty's medical leave, NAP revised its handbook to include the fitness-for-duty certification policy pursuant to instructions from the United States Department of Labor. The handbook states:

All employees must submit a written certification from a medical provider that the employee is capable of performing their duty prior to returning to work. No employee will be permitted to return to work without a "fitness for duty" certification.

Although NAP claims to have mailed Duty a copy of the revisions on or about July 1, 1997, Duty claims to have no memory of receiving it. In addition, NAP instituted a "no rehire" policy in 1997, which precludes NAP from rehiring former employees.

Since 1993, when the FMLA went into effect, NAP has required employees to use available paid vacation leave during their FMLA leave. In April 1997, when Duty's FMLA leave began, NAP applied his accrued vacation benefits to his FMLA leave and issued him a check for vacation pay.

On May 16, 1997, Dr. Chalfant referred Duty to Dr. Joseph Queeney and signed a form stating that Duty could return to work after release from Dr. Queeney. Dr. Queeney diagnosed Duty with degenerative disc disease. However, Duty did not obtain a release from Dr. Queeney. On May 22, 1997, Duty visited Dr. Chalfant and discussed job-related stress. Dr. Chalfant did not give Duty a fitness-for-duty certificate, but told Duty to go back to work and attempt to do his job. When Dr. Chalfant stopped working with NAP's HMO, Dr. Mohsen Keyashian became Duty's primary physician. On June 5, 1997, Duty informed Dr. Keyashian he was experiencing neck pain and numbness in his hands and arms. Duty also told him that Dr. Chalfant had prevented him from working since April 1997. On June 27, 1997, Dr. Keyashian reported that Duty "can restart limited work if he tolerates it and I gave him a statement. If he cannot tolerate work or it brings any trouble, he will call me." Duty testified that he had submitted Dr. Keyashian's statement to White, telling her he wanted to return to work, and that White informed him that NAP had no limited work available.

On July 28, 1997, Duty again visited Dr. Keyashian, complaining of increased neck pain and numbness in his fingertips. At this visit, Duty inquired about disability benefits, and Dr. Keyashian explained that NAP and its insurance company would assign another physician for disability evaluation. Dr. Keyashian sent a physician's statement form to White on July 28, 1997, stating that Duty was able to return to "limited work." White called Dr. Keyashian's office to clarify what "limited work" entailed, and Dr. Keyashian told her it meant "no lifting, no climbing, or no standing for long periods of time."

On September 15, 1997, NAP mailed a certified letter to Duty informing him that his medical leave qualified under the FMLA. The letter instructed him that:

You will be required to present a physician's release certificate in order to be restored to employment.

If you return to work within 12 weeks from the date of receipt of this letter, you will have the right to the same or an equivalent job. However, if you fail to return to work within 12 weeks from the date of receipt of this letter, this right will no longer exist.

NAP attached to the letter a copy of WH Publication 1420, "Your Rights under the Family and Medical Leave Act of 1993." Duty received NAP's September 15 letter on September 18, 1997. At trial he testified that he read part of the letter and that he was not familiar with the FMLA.

In mid-October 1997, Duty's short-term disability benefits ceased. As a result, White discontinued contacting Duty's medical care providers because she no longer needed the information to write Duty's weekly disability checks.

On October 31, 1997, Duty met with Dr. Queeney, complained of upper extremity pain, and asked for permanent disability status. On November 20, 1997, Duty visited Dr. Keyashian, telling him that he could not perform heavy lifting or heavy work, and that NAP had no light job for him to do. Dr. Keyashian explained that Duty was not totally disabled but should not do heavy work and wrote a statement to that effect. Duty testified that at this time, he thought he could do anything except heavy lifting.

On December 11, 1997, Duty telephoned White to ask what he needed to do to return to work. White informed him that as far as she was concerned, his twelve weeks of FMLA leave had elapsed and his employment was terminated. Duty testified that he did not think White had the authority to fire him. According to NAP, White does not have the authority to hire NAP employees or fire them for performance reasons, but may administratively terminate employees who fail to return to work from sick leave without consulting management.

In a letter dated December 19, 1997, and signed by White's supervisor, NAP informed Duty that his failure to return to work upon completion of twelve weeks of FMLA leave resulted in his voluntary termination. Upon receipt of the letter, Duty instructed his wife to write a response, dated January 8, 1998, which asked: "Is it possible that you could make a position for me with my limitations[?]". On January 28, 1998, Duty's wife wrote a second letter, which again inquired about creating a position for him with his limitations, because his limitations had resulted from a job-related injury. On February 3, 1998, White responded to Duty's letters with a letter stating that his FMLA entitlement had been exhausted on December 11, 1997, and that his failure to comply with the FMLA regulations to keep NAP informed of his condition and to present a return-to-work certification was considered a voluntary termination. Duty testified that this was the first notice he received of his termination.

After his termination, Duty worked on his farm and did not try to find outside employment. Dr. Keyashian completed a long-term disability attending physician's statement form, which limited Duty's work to "no heavy duty work, including lifting."

On July 2, 1998, Duty filed a charge of discrimination against NAP with the Equal...

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