Sanders v. May Dept. Stores Co., 01-3344.

• Decision Date: 09 January 2003
• Docket Number: No. 01-3344.,01-3344.
• Citation: 315 F.3d 940
• Parties: Terry SANDERS, Appellant, v. MAY DEPARTMENT STORES COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 940

315 F.3d 940

Terry SANDERS, Appellant, v. MAY DEPARTMENT STORES COMPANY, Appellee.

No. 01-3344.

United States Court of Appeals, Eighth Circuit.

Submitted: September 12, 2002.

Filed: January 9, 2003.

Rehearing and Rehearing En Banc Denied: February 12, 2003.

COPYRIGHT MATERIAL OMITTED

Timothy J. Willoughby, argued, St. Louis, MO, for appellant.

Betty T. Tierney, argued, St. Louis, MO, for appellee.

Before HANSEN, Chief Judge, RILEY and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Terry Sanders ("Sanders") brought this employment action alleging that her former employer, the May Department Stores Company ("May"), violated the Family and Medical Leave Act ("FMLA"). Following trial, the jury entered a verdict in favor of May on all counts. Sanders appeals the District Court's¹ denial of her post-verdict motion. We affirm.

I.

May hired Sanders as a financial analyst in October 1984. Sanders, then a male, worked productively at the company for nearly thirteen years until the spring of 1998. In March of that year, Sanders informed May that she suffered from gender dysphoria.² To address this condition, Sanders told May that she intended to undergo gender reassignment surgery on June 4, 1998. Moreover, following the surgery, Sanders would no longer consider herself a male, but a female.

Sanders also informed May that in order to prepare for this surgery, she was required to live as a woman for four to six weeks preceding the procedure. She expressed particular concern that some level of confidentiality be maintained during this pre-surgical lifestyle adjustment. In particular, she wanted to avoid workplace disclosure of her impending life change. Sanders especially emphasized that she did not desire this disclosure because of the adverse effect such disclosure might have on her spouse of twenty-five years. Consistent with her desire for privacy, Sanders tendered her resignation.

In stating her intent to resign, Sanders also acknowledged her understanding that if she did not resign prior to surgery, she could have received sick pay during convalescence. As consideration, she sought from the company what she described as "due financial consideration" and a "leave of absence." Specifically, she wanted to cease reporting for duty in April, but continue as an employee through May 1, 1998. Sanders gave other personal grounds for this consideration.

In reply, May explained to Sanders that severance pay was not an option under company policy because her departure was voluntary. May also expressed concern at this time that Sanders was leaving a job she had held for more than thirteen years. Sanders stated that she understood, but that her decision was well-reasoned. She had plans to rendezvous in another state with her future partner, who was going to provide and care for her during her recuperative period. Afterwards, they planned to marry and begin their life together in that state.

During this time, a representative of May's human resources office informed Sanders that she might qualify for FMLA leave. This representative also explained that in order to qualify for leave, the statute required Sanders to provide medical certification of the need for leave. Sanders reasserted her intent to resign and, because of her confidentiality concerns, stated that she did not want to provide the FMLA-required medical certification.

May's personal-leave policy allows an employee to receive up to one week of leave for each year of service, at May's discretion. After the leave expires, if the employee wishes to return to work, he or she may do so if there is a position available. Under its personal-leave policy, May is not obligated to hold the position open for the employee. As an employee of thirteen years, Sanders was eligible for, and received, thirteen weeks of personal leave. The leave expired at the end of July 1998.

In June 1998, during the leave period, Sanders underwent gender reassignment surgery. However, Sanders's personal plans apparently changed, and she sought reinstatement with May. May, however, had not reserved Sanders' previous position. Nevertheless, May did rehire Sanders on February 16, 1999, to work as a Senior Financial Analyst in its MIS department. This position differed from the one she previously held for the company.

On April 30, 1999, May terminated Sanders for poor performance. As a result, in March 2000 Sanders filed this action against May seeking damages for its alleged violation of FMLA.

II.

Sanders first appeals the denial of her post-trial "Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial."³ In the motion, Sanders argued that: (1) the jury's verdict was contrary to the evidence presented at trial; (2) May did not satisfy its FMLA notice requirements; (3) she did not volitionally waive her FMLA rights; (4) she was entitled to a new trial based on her retaliation claim. In addition, Sanders appeals the District Court's refusal of several of her jury instructions. As discussed below, each of these arguments is without merit.

A. Judgment as a Matter of Law or New Trial

Our review of a district court's denial of a motion for judgment as a matter of law is conducted de novo. We will evaluate all evidence and all reasonable inferences in the light most favorable to the prevailing party. Moring v. Arkansas Dept. of Correction, 243 F.3d 452, 455 (8th Cir.2001); Vetter v. Farmland Indus. Inc., 120 F.3d 749, 752 (8th Cir.1997). We will not disturb a jury's verdict unless we determine that no reasonable juror could have found for the non-moving party based on the trial record. Moring, 243 F.3d at 455. We review the denial of a motion for a new trial for an abuse of discretion. Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 495 (8th Cir.2002). "The key question is whether a new trial should have been granted to avoid a miscarriage of justice." Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir.2000) (citations omitted).

1.

Sanders first argued that the jury's finding was contrary to the evidence presented at trial. At trial, the jury found that May did not violate FMLA when it awarded her only personal leave instead of FMLA leave (in spite of her FMLA eligibility before her sexual reassignment surgery). An eligible employee, such as Sanders, may take FMLA leave for a period not to exceed twelve months "because of a serious health condition that makes the employee unable to perform the functions of his or her job." 29 U.S.C. § 2612(a)(1); see also, 29 C.F.R. § 825.112(a). However, in order to invoke the protections of FMLA, an employee must notify his employer of his "intention to take leave." 29 U.S.C. § 2612(e)(2)(B). At a minimum, an employee must give "at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave." 29 C.F.R. § 825.302(c). While the employee does not have to mention FMLA by name, the employee has an affirmative duty to indicate both the need and the reason for the leave. 29 C.F.R. § 825.302(c). Thus, in evaluating the jury's verdict, we must first consider whether Sanders made a valid request for FMLA leave.

Sanders planned to have a sex change operation in June 1998. She notified May that she wanted to resign no later than May 1, 1998, in order to maintain a level of anonymity during the month prior to the operation. At that time, Sanders stated her intent clearly and articulated several factors supporting her decision. She: 1) feared ridicule from peers and colleagues; 2) anticipated impending trouble at the workplace from an ex-boyfriend; 3) believed that if she resigned her position prior to the surgery she would spare her spouse a measure of grief; 4) planned to move to another state with her future fiancee and begin life anew.

Also at the time of her resignation, Sanders requested severance pay noting that her departure prior to undergoing her scheduled surgical procedure would save May the expense of providing her with covered medical leave if she remained in its employ. Alternatively, Sanders requested that she be allowed to take a "leave of absence" during the month of April so that she would still accrue additional vacation leave until May 1, 1998. In response to Sanders dual request, May suggested that there was a "possibility" that she would qualify for FMLA leave.⁴ Sanders refused because she would be required to supply the company with a medical certification delineating her qualifying health condition. Thus, it is plain from these facts that Sanders did not actually attempt to pursue FMLA leave. This refusal was consistent with her articulated desire for non-disclosure of her gender reassignment. Instead of FMLA leave, May granted Sanders thirteen weeks of personal leave (one week for each year of service), which allowed her to continue receiving corporate benefits including medical insurance and accrual of leave.

Sanders attempts to get around these facts. First, she argues that she provided May with sufficient notice of her need for FMLA leave because May acknowledged the possibility that her sexual reassignment would be an FMLA-qualifying event. However, such a conclusion is untenable; it ignores the fact that she dismissed the option outright. We hold May was not obligated to ignore Sanders's express resignation.

Second, Sanders also maintains that because May granted her personal leave, it cannot be said that she also resigned her position. However, there is no mutual exclusivity to the grant of a personal leave and a resignation. Sanders, herself, best makes this point. In a letter she authored in March 1998, Sanders informed one of her physicians that she would "be resigning" after a "leave of absense [sic]" and that she would be moving near her "boyfriend and future fiancee." She also noted in the letter that her "last day of work in the St. Louis area will be Thursday, April 23, 1998."

Therefore, because Sanders did not actually pursue FMLA leave, and in...